Alhaji Mogaji Abudu Lateju V. Dr Olu Fabayo (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A., (Delivering the Leading Judgment)

This is an appeal against the final decision of Hon. Justice H.O. Ajayi of Kwara State High Court in suit No. KWS/85/2004, delivered on 29/10/2008, wherein his lordship found for the Respondent as follows:

(a) That the plaintiff (now Respondent) is the owner of the land in dispute located off the university of Ilorin permanent site, subject matter of Certificate of Occupancy No. KW5540;

(b)That the entry of the Defendant (Appellant herein) on the land constituted trespass;

(c) N50, 000.00 (fifty thousand Naira) to the Respondent as damages for trespass;

(d) An order restraining the Appellant, his agents, privies and any other person from further trespassing on the Respondent’s land.

The Respondent’s claim at the lower court had prayed for the above reliefs, and in respect of damages, had sought N100,000.00 (one Hundred Thousand Naira) and had also prayed for an order setting aside the purported sale of the plaintiff’s land to the 2nd Defendant by the 1st Defendant. (Pages 3-5 of the Record).

Being dissatisfied with the whole decision, the Appellant filed this Appeal on 25/11/2008 and raised eight (8) grounds of Appeal as shown on Pages 131 to 135 of the Record of Appeal.

Appellant filed their Brief of Argument on 21/5/09 and formulated eight (8) issues for determination, each on each ground of the appeal, as follows:

(1). Whether the trial High Court was right to have found that Certificate of Occupancy dated 30/9/2005 (sic) (Exhibit P1) was valid and existent in view of the letter of revocation, (Exhibit 2) dated 15/2/2005 issued by the Kwara State Ministry of Lands and Housing, Ilorin.

(2) Whether all what the Plaintiff was required to prove was to produce and tender Exhibit P1.

(3) Whether the trial High Court was right in holding that evidence of the Defendant (now Appellant) that his family protested that the Kwara State Government cannot use the family land to compensate the family for the purported acquisition of their family land amounts to the family rejection of the land released to the family vide Exhibit D2

(4) Whether the trial High Court was right when it found that the Defendant was claiming the land only on the ground of being a family land.

(5) Whether the Respondent had been in peaceful possession of the land in dispute since 1986.