J. O. Osidele V. Moses O. Sokunbi (2012)

LAWGLOBAL HUB Lead Judgment Report

I. T. Muhammad , JSC

In the Ikeja Judicial Division of the High Court of Justice of Lagos State (trial court), the plaintiff, who is the respondent herein, as per paragraph 13 of his last Amended Statement of Claim, made his claim as follows:

’13. WHEREUPON THE plaintiff claims:

a) Special and general damages in the sum of N1,000.00

b) An injunction restraining the defendant whether by themselves or their servants or agents or otherwise whatsoever from entering forthwith and/or building on the aforesaid plaintiffs land.

c) Declaration that the plaintiff is entitled to a statutory right of occupancy of the piece or parcel of land situate, lying and being at Ohigbagbo village, Ikeja and covered by the deeds of conveyances registered as 29/29/1484, 100/100/519 and 30/30/1780 of the Lands Registry, Lagos.’

The genesis of the plaintiffs claim as per his pleadings is that by a Deed of Conveyance dated 6/10/43 and registered as No.42 at page 42 in volume 635 of the Registry of Deeds at the Lands Registry, Lagos, one Mr. Isaiah Blundell Otitoju became siesed in fee simple absolute in possession from all encumbrances of a large area of land measuring approximately 13.02 acres of which the land in dispute forms part. The said Otitoju died testate and under and by virtue of his last will of testament, he devised the said land to his three children namely: [1] Benjamin Mobolaji [2] Isaiah Omotunde and [3] Noah Olufemi. Benjamin Mobolaji and Noah Olufemi died intestate and were survived by Isaiah Omontunde in whom the property was vested and who exercised maximum acts of ownership over the same after the death of the said Benjamin Mobolaji and Noah Olufemi.

The plaintiff claimed further that under and by virtue of a Deed of Conveyance executed between the said Isaiah Omotunde Otitoju of the one part and the plaintiff of the other part., dated 10/2/75 and registered as No.29 at page 29 in volume 1484 of the Lands Registry, Lagos, the plaintiff became seised in fee simple, the parcel of land referred to above and free from all incumbrances. He averred further that he was in physical possession and occupation of a larger piece of land including the land now in dispute since 28/8/69 before the defendants trespassed. That his predecessors in title who conveyed the larger area of land including the land now in dispute to him had been in physical possession of the land and had been exercising all acts of ownership without let or hindrance since 9/3/43 up to 28/8/69 when the same was sold to him. That all the defenders trespassed on the said piece of land. He averred that the defendants started to dig building foundation on the land in 1973/74 and that he warned them in several ways against their acts of trespass immediately he discovered same but they refused to heed his warnings. That the acts of trespass of the defendants have caused damage to the plaintiff to the tune of N1,000.00 and that unless an injunction is issued against the defendants jointly and severally, they will continue their illegal act of trespass to the detriment of the plaintiff.

In their respective pleadings, the defendants, except where specifically admitted, denied each and every allegation contained in the plaintiffs Amended Statement of Claim.

After full trial, the learned trial judge in his judgment of 31/12/86, dismissed plaintiffs claims in their entireties.

Aggrieved by the trial courts decision, the plaintiff proceeded to the Lagos Division of the Court of Appeal (court below), in its well-considered judgment of 12/4/2001, the court below allowed the appeal, set aside the trial courts judgment and entered judgment for the plaintiff.

Dissatisfied, the defendants/respondents and now appellants, appealed to this court on three grounds of appeal urging that this court should allow the appeal, set aside the judgment of the court below and restore that of the trial court.

In their brief of argument, the 1st set of appellants (1st and 3rd) formulated the following lone issue for this courts determination:

‘Whether the learned Justices of the Court of Appeal were right to hold that the plaintiff/respondent is entitled to a statutory right of occupancy of the parcel of land in dispute and finding for him on his claim for trespass and injunction’