Alhaji Olumide Onanubi V. Mr. Akintunde Olajuwon Ogunfolu (2009)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI (OFR), J.C.A.

The plaintiffs sought the following reliefs against the defendant at the trial court in paragraph 22 of their amended statement of claim-

“22. WHEREOF the plaintiffs claim as follows-

i. A declaration that the plaintiffs are entitled to a statutory right of occupancy over the piece and all that parcel of land totaling six plot of land which formed part of the plaintiffs family land lying being and situate along Alakuko Road, Alagbado Near Agege Local Government Area of Lagos State and shown on composite plan No APAT/LA/349/1994 drawn by Chief A.B. Apatira, licensed Surveyor and dated 24th October, 1994.

ii. N100,000 damages for the acts of trespass committed by the defendants, his agent on the said land in dispute.

iii. Perpetual injunction restraining the Defendant by himself, agent, servant and or privies from further acts of trespass on the said land.”

The defendant filed a statement of defence which was subsequently amended. The Plaintiff filed a reply to the statement of defence which was also amended. Therefore, pleadings were eventually settled at an amended statement of claim, second amended statement of defence as well as further amended reply to second amended statement of defence.

The plaintiffs called three witnesses while the defendant called only two witnesses. Thereafter, counsel gave their respective final addresses, learned trial judge Oduneye, J., in a reserved and considered judgment stated thus –

“Having held that the plaintiffs are entitled to declaration of title to the land in dispute, I will hold that the plaintiffs are in possession of land and can maintain this action for trespass against the defendant. The defendant gave evidence that he started to build on the land. This in my opinion is trespass in that the land does not belong to him. I will award the sum of N20,000.00 as damages for trespass committed by the defendant on the plaintiffs’ land.

In other to protect the plaintiff’s right and to prevent a reoccurrence of the acts of trespass I will grant a perpetual injunction restraining the defendant by himself, agent, servant and/or privies from further acts of trespass on the plaintiffs’ land.”

The defendant is unhappy with the judgment and being dissatisfied has appealed to this court on six grounds of appeal. Pursuance of the notice of appeal, briefs of argument had been filed and exchanged which briefs were adopted and relied upon at the hearing of the appeal.

The appellant, in his brief of argument, formulated the following three issues for consideration and determination in this appeal.

“1 . Whether the Respondents proved their title to the land in dispute (Distilled from Ground One).

2. Whether from the evidence and pleadings, there has been a breach of payment of consideration in respect of the contract for the sale and purchase of land. And if so can the respondent rescind the contract (Distilled from Ground Three).
3. Whether from all the circumstances of this case and taking the pleadings and evidence on it as a whole, the trial court is right in declaring the appellant a trespasser and awarding the sum of N20,000.00 against him as damages for trespass (Distilled from Ground Four).”

It seems to me that the appellant by relating only grounds 1, 3 and 4 of his grounds of appeal to issues 1, 2, and 3 has impliedly abandoned grounds 2, 5 and 6 of the grounds of appeal which are hereby consequently struck out.