Azeez Owoade V. Mr. Adama Asubiojo & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of A. A. Aderemi, J. sitting at the Oyo State High Court, Ibadan Judicial Division, delivered on 15th day of December, 2006.

In the court below, the plaintiff’s (now Appellant’s) claim as per his Further Amended Statement of Claim dated 8th May, 2006, were as follows:

(a) “Perpetual injunction restraining the Defendants, their agents, privies or any other person claiming through them from committing acts of trespass on the plaintiff’s land situate, lying and being at Jogbin Olojuoro Road, Ibadan covered by certificate of occupancy with Numbers LUD8455B, LUD7167B; and LUD8547B.

(b) N10, 000.00 as general damages.

(c) Declaration that the plaintiff is entitled to Statutory Right of Occupancy in respect of the piece or parcel of land situate, lying and being at Jogbin village, Olojuoro Road, Ibadan covered by Certificates of Occupancy with Numbers LUD8455B, LUD7167 and LUD8547.”

The Appellant called two witnesses and tendered Exhibits A, B, B1 and B2 in proof of his claim while the Respondents called five witnesses and tendered Exhibits C, D, E, E1, F and F1 against the Appellant’s claim. In proof of his case the Appellant relied on production of documents, that is, Purchase Agreement and Certificate of Occupancy with Numbers LUD8455B, LUD7167B and LUD8547B, pages 90-93; 108 and 110-111 of the records of Appeal.

On their part, the Respondents also in defence of the case relied on production of documents, that is, land sale Agreements, Survey Plan and Certificate of Occupancy. The Appellants also relied on acts of ownership i.e. selling and building of houses, shops and building foundations on the land see pages 112-114 and 123-126 of the printed records.

At the close of the case, the trial court dismissed the plaintiff’s case. The Plaintiff dissatisfied with the decision appealed to this court in which four issues were raised for the determination of this appeal. They are:

1. “Whether the learned trial judge was right to have dismissed the plaintiff/Appellant Claims because there was no survey plan placed before the court.
2. Whether the learned trial judge was right to have dismissed the Plaintiff/Appellant claims because he failed to lead evidence on the root of title of Pa B. A. Lawal.
3. Whether the Plaintiff/Appellant is entitled to judgment based on the evidence before the learned trial judge.”

On their part the Respondents raised two issues for the determination of the appeal. They are:

(i) “Whether the learned trial judge rightly dismissed the Plaintiff’s/Appellant’s case.

(ii) Whether the Defendants/Respondents proved better title and were the rightful owners of the 3 1/2 (Three and half acres) of land in dispute in this case.

In arguing the Appeal, the learned Counsel to the Appellant G. A. Sunmonu Esq. adopted and relied on his amended brief of argument dated and filed on 11/10/10 pursuant to the order of court of 4/10/10 substituting the name of the Appellant. We were urged to allow the appeal and set aside the judgment of the lower court.

In his submissions it was argued that the learned trial judge erred when he held that the plaintiff did not adduce credible evidence to describe the land in dispute. It was the contention of the learned Counsel that the learned trial judge did not make adequate use of the evidence and the pleadings of the parties before arriving at his conclusion thereby occasioning a miscarriage of justice.