Julius Akingbade Afesojaiye V. Racheal Afesojaye & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the judgment of the High Court Of Ondo State delivered by Hon. Justice C. E. T. AJAMA on 24th October, 2013 at the Akure Judicial Division.

The appellant herein, who was plaintiff at the trial court, instituted an action by a writ of summons dated 9th June, 2010 against the respondents/defendants therein claiming by a statement of claim dated 9th June, 2010 a declaration to title, injunction and damages for trespass in the following terms:

(a) A declaration that the plaintiff is person entitled to the occupation, possession and rights to that property situate, being Off Akure Ilesha Road, Okuta- Elerinla, Akure, the subject matter of this suit (now known as No 7A Kayode Street, Lafe Area, Akure) and more particularly described in the survey plan No AK/1514/OD dated 28th February, 1978 drawn by D. O. Akigbogun and also on the basis of the Certificate of Occupancy dated 7th June, 1982 and registered as No. 48 at page 48 in Volume 262 of the Lands Registry Office at Akure issued in the name of the plaintiff respecting the land.

(b) An order of perpetual injunction restraining the defendants by themselves, their servants, agents or privies or anybody claiming through them from interfering with or affecting in any manner whatsoever, the plaintiff’s occupation and rights to the property subject matter of this suit.

(c) The sum of N5Million (Five Million Naira Only) as damages for trespass committed by the defendants on the property, the subject matter of this suit by posting letter on the front wall of the plaintiff’s property subject matter of this suit.

The defendant, respondent herein filed an amended statement of defence dated 1st February, 2012.

At the trial, the plaintiff testified as PW1 and called two other witnesses. He tendered some exhibits which were admitted in evidence and marked as exhibits A-J.

On their part 1st respondent who is the mother of the 2nd respondent gave evidence as DW5 having called four (4) other witnesses who testified for them. The respondents tendered through DW2 documents precisely receipts for payment of rent which were admitted in evidence and marked as exhibits K – K5. Other documents tendered by the defendants/respondents were admitted in evidence and marked as Exhibits T, T1, U and V. one of the documents (letter of request for C. T. C) was rejected by the court upon objection of the appellant and was marked as rejected.

At the close of trial learned counsel on both sides filed their respective written addresses after which the learned trial court in a considered judgment delivered on the 25th June, 2010 in Suit No AK/144/2010 contained on pages 62 – 90 of the record, dismissed all the plaintiff’s claims.

Dissatisfied with the said judgment the appellant who was the plaintiff at the trial in the court below filed a Notice of Appeal containing one ground of appeal before this court dated 5th December, 2013.

Both sides filed their briefs of argument. Appellant’s brief is dated 6th March, 2014 and filed 7th March, 2014 while respondents’ brief is dated and filed 17th April, 2014.

Appellant’s case:

The appellant claims he is the beneficial owner of all the piece or parcel of land and building thereon situate and being off Akure Ilesha Road, Okuta – Elerinla, Akure (Now known as No 7A Kayode Street, Lafe Area Akure) having purchased same from one Mr. Michael Esan in 1977, later applied for statutory Right of Occupancy dated 7th June, 1982 and registered as 48/48/262.