Chief Adegoke Ojagbamila & Ors. V. Chief Lejuwa & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.

This is an appeal against the ruling delivered by Obaremo, J, of the Ondo State High Court of Justice holden at Okitipupa on 8th day of August, 1997 based on the motion which prayed for the following reliefs:-
“(i) An order that the defendants/respondents shall not relitigate the ownership of the land in dispute on the grounds of estoppel by conduct (in pais) acquiescence and the principle of standing by;
(ii) An order that the defendants/respondents either by themselves, servants, agents etc or any other person claiming through them shall not enter the land in dispute to farm, to plant any crops to take first product or to do any act on the land without the written permission of the plaintiffs/applicants,”

In reply, learned counsel for the defendants/respondents submitted that the application is frivolous and vexatious and inappropriate, because before this application is brought to court, the applicant did not show that they are in exclusive possession of the subject matter. Again they did not show that there is a final judgment indicating that the plaintiff is entitled to exclusive possession.

Not only that, the defendants/respondents further contended the plaintiff cannot succeed because the identity of subject matter is not certain and no plan was shown before the court. That there is nothing to indicate that the defendant stool also of and not claiming its tight and that there is evidence that they are in exclusive possession of the land, He then urged that court to dismiss the application relying on the same case cited by the plaintiff, i,e, Bishop Joseph Alexander Synax v. Rt, Rev, S. I. Kale & 2 Ors, (1969) 1 All NLR 256 (1969) NMLR at page 159, In a considered ruling the learned trial Judge found for the plaintiff/applicant and granted all the reliefs sought, in the following terms:-
“As I have stated earlier, there was no counter-affidavit by the respondents, If there were, I should have had the opportunity of reconciling the conflicts, This failure of the counsel to traverse the issues raised in the averments of the applicants is fatal to their case, In law, this failure is tantamount to admission, Now, the respondent (sic) has not filed a counter-affidavit nor in any way controverted the allegations of facts contained in the applicant affidavit. I must act on them as if they are true. If I do, then it appears to me that justice demands that I should grant the order sought by Chief Kaye.
Consequently, the application of the applicant shall and hereby is (sic) sustained. It is hereby ordered that the defendant/respondent shall not re-litigate the ownership of the land in dispute on the grounds of estoppel by conduct and the defendants/respondents servants, agents etc shall not enter the land in dispute to farm, to plant any crops etc without the written permission of the plaintiff/applicant, with no order as to costs.”

See pages 65 – 66 of the records of proceedings.

Aggrieved by the above ruling, the defendants/respondents appealed to this court and filed a notice of appeal containing all in all eleven grounds of appeal shorn of their particulars are as follows:-
“1. That the trial Judge erred in law when he held that the failure of the defendants/respondents to file counter-affidavit to the plaintiffs/applicants motion amounted to admission of the facts deposed to in the affidavit in support of the motion whereas the defendants/respondents raised objection on point of law.

2. That the application brought by the plaintiff/applicants under Order 24 of the Ondo State High Court (Civil Procedure) Edict, 1987 upon which the decision of the trial Judge was based is irregular and incompetent as the said Order 24 deals with proceedings in lieu of demurrer which does not deal with the issues and reliefs sought by the plaintiffs/applicants:

3. That the decision of the learned trial Judge is against the affidavit evidence and arguments adduced before him.

4. The learned trial Judge erred in law when he held as follows:

‘Consequently, the application of the applicant shall and hereby is sustained. It is hereby ordered that the defendant/respondent shall not re-litigate the ownership of the land in dispute on the grounds of estoppel by conduct…’

5. The learned trial Judge erred in law in granting the application as sought in the plaintiffs/applicants motion of 11th September, 1995 thereby allowing the plaintiffs/applicants to rely solely and entirely on estoppel by conduct to found a cause of action for title to land against the defendants/respondents.

6. The learned trial Judge erred in law in upholding the reliefs sought by the plaintiffs/applicants by way of motion when this amounted in effect to granting the declaratory and injunctive reliefs sought by the plaintiffs/applicants in their writ of summons and statement of claim, thereby short-circuiting a trial which ought to be appropriate in the circumstances, and this occasioned a miscarriage of justice.

7. The learned trial Judge erred in law when he held as follows:
“As the objection taken in the instant case could, if uphold, (sic) disposes (sic) of the whole action. (sic) I am of the opinion that it comes within the ambit of Order 24 of Ondo State High Court (Civil Procedure) Rules, 1987.”

8. The learned trial Judge erred in law when he held as follows:
‘It will not be right as contented (sic) by the learned counsel that there is no survey plan demarcating the area in dispute. By paragraph 18 of the supporting affidavit, its (sic) applicant says that the survey plan used 1958 and 1963 is exhibit ‘F’. I agree with the applicant survey plan contrary to the contention of the respondent in exhibited and is marked exhibit ‘F’ which is the subject matter.’