Dumez Nigeria PLC V. His Highness J. A. Ademoye & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice O. A. Adegbehingbe of the High Court of Ondo State sitting at Ore Judicial Division delivered on 13th March, 2006 granting the claims of the Plaintiffs (hereinafter called the Respondents). The Respondents as Plaintiffs at the trial court brought this action via Writ of Summons filed on 19/4/2002 and Statement of Claim filed on 17/10/2002.

On 4/3/2003, the Respondents filed an Amended Statement of Claim, while the appellant as defendant at the trial court filed their Amended Statement of Defence on 19/4/2003. Reacting, the Respondents, on 3/5/2003 filed their Reply to the Amended statement of Defence. Suffice to say that on the above stated processes, the case was ventilated at the trial court. By the said Writ of Summons and the Amended Statement of Claim, the Respondents claimed against the Appellant as follows:

1. Court declaration that the Plaintiffs are the persons entitled to be granted the certificate of customary right of occupancy over the parcel of land currently in possession of the 1st Defendant situated, lying and being at Otu Costain, Odigbo Local Government Area of Ondo State of Nigeria.
2. Court declaration that any purported leasehold and/or right of occupancy purportedly granted the 1st Defendant by the 2nd Defendant and/or any person and/or body, entity over the parcel of land without the prior knowledge and/or consent of the Plaintiffs is wrongful, unlawful, unconstitutional and void having failed to follow the due process of law.
3. Twenty Five Million Naira (N25m) being special and general damages for trespass, for accumulated arrears of rent payable over the parcel of land and loss of use of same since the parcel of land had been in an unlawful and/or forceful occupation/possession of the 1st Defendant several years ago.
4. An order of perpetual injunction restraining the 1st Defendant whether by herself or servants, agents or otherwise from committing further acts of trespass over the plaintiffs’ parcel of land aforesaid.

SUMMARY OF FACTS

The case of the Appellant is that the land in dispute was at all times material to this case under the control of Ondo State Government (formerly Government of Western Region of Nigeria). That in 1972, the Ifesowopo Local Government Council allocated the land in dispute to it and it paid the necessary fees and was granted a customary Right of Occupancy.

Later, the area of Otu-Costain was made an urban area, it applied and was granted by Ondo State Government a statutory right of occupancy. That it never dealt with or recognized the 1st – 3rd Respondents as owners or its landlord as it did not acquire its title from them. There is no tenancy relationship between them either. Alternatively, that even if the 1st – 3rd Respondents were ever on the land in dispute, the Respondents’ action therein is statute barred as the action was brought after the period stipulated by the Limitation Law of Ondo State.

On the other front, the case of the Respondents is that they are customary owners of the land in dispute, having inherited same from their great grandfather AKINTOPE, who also inherited same from his father JOMULEJE, the original founder/settler of a larger parcel of land. That the land subject matter of this appeal was never acquired by the Government of Western Region or its successor Ondo State Government at any time to warrant allocation of same to the Appellant without their consent.

The parties filed and exchanged pleadings and the matter proceeded to trial. The 1st – 3rd Respondents called three witnesses and tendered 1 (one) exhibit in support of their case while the Appellant called two witnesses and tendered 8 (eight) exhibits. At the conclusion of trial and after listening to oral address of respective counsel, the learned trial Judge in a considered judgment delivered on 13th March, 2006 gave judgment in favour of the Respondents.

Being dissatisfied, the Appellant filed Amended Notice of Appeal dated and filed on 3rd of March, 2008, containing five (5) ground of appeal. In compliance with the rules of this court, the parties filed and exchanged briefs of argument. The Appellant’s amended brief of argument is undated but filed on 10/1/2013 but deemed properly filed on 22/1/2013; and settled by NASIR RUNMONKUN (ESQ.) while the Respondents’ Brief of Argument is dated and filed on 25/1/2013 and was settled by A. F. ADEJAYAN (ESQ.). The appellant also filed an undated Reply Brief on 7/2/2013, settled also by NASIR RUNMONKUN (ESQ.)

At the hearing of the appeal on 3/4/2014, NASIR RUNMONKUN (ESQ.) adopted the Appellant’s brief of argument and reply brief and urged us to set aside the judgment of the trial court. While A. F. Adejayan (Esq.) of counsel, adopted the Respondents’ brief of argument and urged us to uphold the judgment of the trial court.

The Appellant vide its Brief of Argument formulated the following three issues for resolution of this appeal thus:

1. Whether the learned trial Judge was correct in holding that the land occupied by the Appellant was never acquired by Government before it was granted to the Appellant.
2. Whether the learned trial Judge was correct in holding that Section 6(2) of the Limitation Law, CAP 61, Laws of Ondo State 1978 does not avail the Appellant so as to bar the 1st – 3rd Respondents’ right of action.
3. Whether the learned trial Judge was correct in holding that the 1st-3rd Respondents had successfully established the identity of the land they are claiming.

On the other hand, the respondents distilled three issues for resolution of this appeal as follows:

1. Whether the identity of the adjudged land is put in issue and/or in dispute between parties in this case.
2. Whether the adjudged land was acquired by the 4th Respondents to warrant it’s been transferred to the Appellant.
3. Whether the claim of the 1st – 3rd RESPONDENTS is caught by the Limitation Law, Vol. III, CAP 61, Laws of Ondo State, 1978.

Obviously, the three issues as formulated by the respective parties are identical as conceded by the Respondents’ counsel. I shall without much ado, resolve this appeal on the three issues as distilled by the Appellant.

ARGUMENT ON ISSUES