Alimi Akanbi Dada V. Chief Jonathan Dosunmu (2006)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Ibadan in appeal No. CA/1/71/95 delivered on the 14th day of February, 2002 in which the court allowed the appeal of the present respondent against the judgment of the Ogun State High Court of Justice, holden at Ilaro in suit No. HCL/9/83 delivered by Folarin Onashile, J. on the 21st day of September, 1987 dismissing the claim of the present respondent who was the plaintiff in that court.

The facts of the case include the following:

In a writ of summons filed on 10th February, 1983 the present respondent as plaintiff, claimed against appellants, then defendants the following reliefs:

(a) Declaration that the plaintiffis the verson entitled to a right of occupancy on a piece or parcel of land situate, lying and being at Otta and more particularly described in plan No. SEW/2446/5 attached to the Deed of Conveyance registered as No. 12 at page 12 in Volume 63 dated 21st day of September, 1977.

(b) N200.00k being damages against the 1st and 2nd defendants for trespass committed by them when they went on the land uprooted the plaintiff’s survey pillars, removed his notice board and put a building foundation on the land.

(c) injunction to restrain the defendants, their agents, servants and privies from further trespassing on the land. Annual rental value of the land is N20.00k.

Originally, the action was against Emmanuel Adebiyi, Eunice Makanjuola Bamisebi and Alimi Akanbi Dada. The 1st and 2nd defendants were alleged by the respondent, as plaintiff, to have sold a large piece or parcel of land including the portion in dispute to the plaintiff. They (1st and 2nd defendants) did not file a statement of defence in the action and later died in the course of the proceedings leaving the 3rd defendant as the sole defendant in the action. There is no doubt that the original 1st and 2nd defendants sold a large piece or parcel of land to the respondent and executed a conveyance in his favour dated 21/9/77 which was tendered and admitted in the proceedings as exhibit D. It is the case of the respondent that after the conveyance of the land, he took possession of same and exercised maximum acts of ownership thereon including the letting out of portion thereof to tenants for farming purposes and the sale and grant of leaseholds to others without let or hindrance except on 4/5/83 when the defendant raised a caution on Certificate of Occupancy LUD6/R/1261 with plan No. FN2934C of 9/7/81 in respect of a portion of the land in dispute. The respondent also pleaded in paragraphs 26 and 26a of the further amended statement of claim as follows:

26. That after buying the land, the plaintiff sold part of it to one Saka Ogungbemi who has since been granted a Certificate of Occupancy on the land and has started erecting a building on it.

26a. The plaintiff in exercise of right of ownership also granted some portions of the land in dispute to his wives, brothers and sisters and those area including others have not been built upon are being cultivated by Taoridi and Amusa Bankole.

The appellant denied that the land in dispute forms part of the land of the original 1st and 2nd defendants though he admits that the defendants are related and own different portions of land in the area including the land in dispute. The appellant also contended that he was not aware of the sale of the land to the respondent by the original 1st and 2nd defendants until much later and further that the portion in dispute belongs to him, not the 1st and 2nd defendants. It is important to note that in paragraph 1 of the further amended statement of defence the appellant denied the facts pleaded in paragraphs 26 and 26(a) as reproduced supra, among other paragraphs of the further amended statement of claim. As stated earlier at the conclusion of trial, the learned trial Judge dismissed the action of the plaintiff on the ground that the land for which the plaintiff sought declaration has not been sufficiently identified. The Court of Appeal, however, set aside that finding and granted the reliefs earlier reproduced in this judgment.

As required by the rules of this court, both counsel filed and exchanged their briefs of argument. In the appellant’s brief of argument filed on 28/1/02 by learned counsel, Kunmi Lalude, Esq. which was subsequently adopted in argument of the appeal on 27/6/06, two issues have been identified for the determination of the appeal. These are as follows:-

(1) Whether the lower court was right in holding that the identity of the land in dispute was established and thereby proceeded to grant the claim for declaration and injunction without addressing the overwhelming evidence to the contrary. (This issue relates to grounds 3, 4, 5 and 6 of the grounds of appeal.)

(2) Whether the lower court was right in holding that notwithstanding the breach of the rules governing writing of briefs the court below was doing substantial justice by overlooking the respondent’s non-compliance. (The issue relates to grounds 1 & 2).

The two issues as formulated by learned counsel for the appellant were adopted by learned counsel for the respondent in the respondent’s brief filed by A. F. Okunuga, Esq. on 28/2/03 and adopted in argument of the appeal.