Fatai Afariogun & Ors. V. Alhaji Liadi Lawal & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal emerged from the decision of the High Court of Justice of Ogun State holden at Ota wherein respondents’ claim for a declaration of title to land, damages for trespass and an injunction were granted against the appellants in favour of the respondents.

Paragraph 27 of the amended statement of claim pleaded the following reliefs against appellants thus:

“27(a) A declaration that the plaintiffs for themselves and on behalf of Ayedokun Iwoye family are the persons entitled to the Right of Occupancy over and in respect of that piece or parcel of land situate, lying and being along Ilogbo Road, via Ota in Ado-odo/Otta Local government Area of Ogun state of Nigeria.

(b) N50,000 (fifty thousand Naira) being damages for the trespass committed by the Defendants when they entered the plaintiffs’ land, felled economic trees thereon and converted various crops on the said land without the plaintiffs authority, consent or approval.

(c) Perpetual injunction restraining the Defendants, their agents, servants or privies from committing any further or other acts of trespass against the plaintiff.”

The controversy between the parties was heard on the respondents, side alone after pleadings were settled and exchanged between them in the court below, on account of the absence of appellants in court in the later part of the proceedings. The court below accepted the respondents, case based on traditional history or evidence of ownership of the disputed portion of land by inheritance or patrimony and acts of ownership of farming and placing customary tenants thereon coupled with long possession of the land arising from the traditional history of acquisition of the land; also, the court below agreed with the respondents that their composite survey plan, Exhibit A, identified the disputed area of land with certainty accentuated by Exhibit C, another survey plan, showing appellants’ own portion of land abutting respondents’ land.

Consequent upon the above findings, the court below awarded statutory right of occupancy to respondents over the disputed land situate and lying along Ilogbo Road via Otta in the Ado-Odo/Otta Local Government Area as delineated in the survey plan in Exhibit A. Also, the sum of N50,000 was awarded as damages to the respondents for trespass said to have been committed by appellants on the land by acts of selling part of the land and the destruction of respondents’ cash and food crops on the land; a perpetual injunction was also issued against the appellants restraining them from committing further or other acts of trespass on the land awarded to respondents by the court below.

Not unnaturally, appellants were aggrieved by the said judgment and filed a notice of appeal with three original grounds of appeal on 19.10.05. By leave of Court more grounds of appeal were added to the original grounds. Learned Senior Counsel, Mr. Oke, settled appellants’ brief of argument dated and filed on 12.10.09. Four issues were winnowed from the grounds of appeal for determination on the appeal as follows:

“(1) WHETHER THE IDENTITY OF THE LAND IN DISPUTE HAD BEEN PROPERLY PROVED OR NOT (GROUND 1).

(2) WHETHER THE APPELLANTS HAD BEEN GIVEN FAIR HEARING IN THIS CASE WHEN HEARING NOTICES WERE NOT SERVED ON THEM. (GROUND 2)

(3) WHETHER THE ORAL APPLICATION OF THE RESPONDENTS ON THE PROCEEDINGS OF THE 6TH DAY OF JULY, 2001 WERE NOT A NULLITY, THE APPELLANTS NOT HAVING BEEN PUT ON NOTICE BEFORE THE APPLICATION WAS HEARD, AND THE APPELLANTS NOT SERVED WITH ANY AMENDED PLEADINGS. (GROUNDS 4 & 5.)

(4) WHETHER THE JUDGMENT WAS NOT AGAINST THE WEIGHT OF ADMISSIBLE EVIDENCE. (GROUND 3)”

Issue one argued that the identity of the disputed land was not proved with certainty by the evidence of the surveyor, P.W 4, and the survey plan in Exhibit “A”, as it did not incorporate the appellants’ survey plan No. WLS/OG/609/93, issues having been joined on the name and location of the disputed land citing in aid the case of Adesanya v. Aderonmu (2000) FWLR (Pt. 15) 2492 at 2498.