Hon. Oladele Olowe & Anor V. Chief Ajewole Aluko (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMAD AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice F. O. Ogunsola of the High Court of Justice, Ilesa Division,Osun State delivered on 10/05/2001 in favour of the Plaintiff/Respondent.

The claim of the Plaintiff/Respondent at the trial court against the Appellants, as per his Statement of Claim dated 5/3/95 was for the following:

(1) A Declaration that the Plaintiff is entitled to possession of the farmland situate, lying and being at Okutuope, along Ilesha Akure Express Road, Ilesa which was in dispute in Suit No.HIL/34/81 between the parties to this case and finally settled by the Court of Appeal, Ibadan on 15th June, 1993 in Appeal No.CA/I/118/86. The plan of the land adjudicated in the case will be filed later by the Plaintiff.

(2) The sum of N50,000.00 representing damages for trespass committed by the Defendants on the said land by themselves, their agents, servants and privies or otherwise howsoever.

(3) INJUNCTION restraining the Defendants by themselves, their agents, servants and/or privies or otherwise howsoever from further trespassing on the said land.

FACTS RELEVANT TO THIS APPEAL

The case over this land in dispute has a chequered history. Firstly, in 1950, the ancestors of the Plaintiff/Respondent sued the ancestors of the Defendants/Appellants in Suit No.69/50 at the Divisional (Customary) Court at Ilesa and judgment was given for the Plaintiff/Respondent’s ancestors. There was no appeal against that judgment. Instead of appealing that judgment, about 30 years thereafter, the Appellants’ family brought Suit No.HIL/34/81 against the Respondent’s family in respect of the same land at the High Court of Osun State, Ilesa Division and judgment was given in favour of the Appellants’ family.

Dissatisfied, the Respondent’s family appealed that High Court judgment to the Court of Appeal in Appeal No.CA/I/118/86 and the judgment of the High Court in Suit No.HIL/34/81 in favour of the Appellants’ family was set aside and an order for retrial was made by the Court of Appeal. Instead of pursuing the retrial of their case, the Appellants went into their cocoon and slumbered because they are in possession, until 1995 when the Respondent brought the suit that culminated in this appeal for the court to give effect to his subsisting judgment in Suit No. 69/50.

At the conclusion of trial and after listening to respective counsel addresses, the learned trial judge in a considered judgment delivered on 10/5/2001 granted all the reliefs of the Plaintiff/Respondent.

Dissatisfied, the Defendant/Appellant filed a Notice of Appeal dated 11/2/2010 containing five Grounds of Appeal. In compliance with the rules of this court, parties filed their respective Briefs of Argument. Appellants’ Brief of Argument was settled by O. C. Ogbewe (Esq.), dated and filed on 9/8/2010 but deemed properly filed on 19/01/2012. Kazeem A. Gbadamosi (Esq.) settled the Respondent’s Brief of Argument dated 31/5/2012 and filed 1/6/12, but deemed properly filed on 11/04/2013.

At the hearing of the appeal on 19/9/2014, O. C. Ogbewe (Esq.) adopted the Brief of Argument of the Appellants and formulated three issues for determination of this appeal as follows:

(1) Whether the Plaintiff’s action before the trial court did not amount to abuse of court process having regards to the order of the Court of Appeal for retrial (Ground 1).

(2) Whether the Lower Court could rely on mere averments in Pleadings to hold that the Plaintiff has proved the identity of the land in dispute by merely relying on proceedings in previous cases without oral evidence (Ground 2).