Adisa Fajimi V. Sunday Yisa Suberu & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice Ogun State sitting at Ota Judicial Division delivered by Onafowokan, J. on 27th day of November, 2004.

The appellant (as plaintiff in the court below) by an amended writ of summons and amended statement of claim dated 7th June, 2001 claimed against the Respondents (defendants in the court below) jointly and severally as follows:-

The sum of N750,000.00 (Seven hundred and Fifty thousand Naira only) comprising:-

(a) N250,000.00 as costs of re-establishing survey beacons destroyed on the five acre land in dispute at the rate of N50, 000.00 per acre.

(b) N500,000.00 as general damages for unlawful trespass on the land in dispute.

Perpetual injunction restraining the defendants their servants or privies from trespassing on the land in dispute by way of digging foundations building, farming, cutting trees, selling leasing or alienating in any other form of trespass on the land in dispute.

The plaintiff called six witnesses to support his case, while the defendants called five witnesses. Thereafter both counsel addressed the court. In a considered judgment delivered on the 27th day of October, 2004 by Onafowokan J, the plaintiffs claim was dismissed.

Aggrieved with the said decision Plaintiff/Appellant lodged an appeal to this court vide his Notice of Appeal dated 24th December, 2004 and filed same date containing five Grounds of Appeal.

In compliance with the Practice of this court parties filed and exchanged briefs of argument. Appellant brief of argument dated 25/1/06 was filed same date. While Respondents brief undated was filed on 26/10/2006 pursuant to an order of court granted on 11/10/06.

When the appeal came up for hearing on 7/2/12 appellant’s counsel was absent but the record showed that Mr. Olumide Akinbiyi was in court on 23/5/11 when this appeal was adjourned to 7/2/12 for hearing. Respondents were also served through their counsel L.O. Ogunleye on 14/6/11 but failed to appear in court. The court invoked its power under 18 Rule 9(4) of the Court of Appeal Rules, 2011 and deemed Appellant’s brief of argument filed 25/1/06 and Reply Brief, filed on 1/2/07 as well as Respondents’ brief of argument filed on 26/10/06 as duly argued.

Appellant distilled three issues from the five Ground of Appeal for determination as follows:-

(1) Whether in view of the claim before the Court the issue for determination was that of title or in the words of learned trial Judge who of the plaintiff and defendants had a better title to the land in dispute and whether the judgment of the learned trial judge could stand in view of his formulation of the wrong issue for determination and whether the judgment of the court is not capable of being interpreted as giving title to the defendants which they never counter-claimed for.

(ii) Whether in view of the pleadings of the Plaintiff and his evidence that the land in dispute is in Owode/Tetiku village and the conflicting evidence of the defendants that the land in dispute is in Agoro village, the learned trial judge ought not to have resolved the issue of identity of the land in dispute is the same land referred to by the Defendants in their evidence.