Kazeem Bello V. Suraju Agoro Karimu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of an Ota High Court, Ogun State delivered on the 11th of November 2004 in suit No. HCT/265A/98.

The brief facts culminating in this appeal are as follows:

The Appellant is the first Defendant in the Court below and the 2nd Defendant is said to have died during the proceedings.

The Plaintiff now Respondent in this court claims against the Defendants at the lower court for:

(a) Declaration that the Plaintiff is entitled to a Statutory Right of Occupancy over a plot of land situate, lying and being at Ajala Close, Temidire, Sango Ota, Ogun State which is more particularly described on survey plan number GRA1322 of 13th October, 1979 drawn by Alhaji R. Kadiri Licensed Surveyor;

(b) N194,800.00 (One Hundred and Ninety Four Thousand Eight Hundred Naira) as special, general and consequential damages for trespass committed by the Defendants on the Plaintiff’s land;

(c) Perpetual injunction restraining the Defendants, their agents, servants, successors in title or privies from further trespass on the plaintiff’s property.

The Plaintiff/Respondent in his statement of claim of 10/12/98 stated that the one(1) plot of land in dispute situate at Ajala Close, Temidire, Sango Ota, Ogun State was bought by him from the entire Olunloye family of Ota vide receipts Nos. 392 and 475 dated 6/7/77 issued by the family accredited representatives/attorneys. Plaintiff/Respondent further stated to have exercised acts of possession and ownership on the land until 1995 when the Defendants trespassed on the land, destroyed his corner-piece and demarcation he made on the land and used the blocks he deposited on the land in erecting structure on the same land.

Appellant who was the Defendant at the lower court by the amended Statement of defence dated 27/3/03 stated that the land in dispute is at Ajala Close, Temidire, Sango Ota, Ogun State which he bought in August, 1988. He stated that same portion of the family land had been partitioned as shown in suit no. AB/29/71 exhibit ‘B’ which also confirmed the title of the family and that the land in dispute is part of the land partitioned to Karimu Okoosi, a family member. On the death of Karimu Okoosi, the land was sold by one of the children of Karimu Okoosi that is Saminu Okoosi to him as a virgin land of which he did not meet any structure whatsoever on the land. He did his survey plan and he was building on the land.

After reviewing the case of both parties and their addresses the learned trial Judge in a considered judgment delivered on the 11th of November, 2004 gave judgment in favour of the Respondent. Dissatisfied with the decision, Appellant appealed to this court through an amended Notice of Appeal dated 19th January, 2006 containing four grounds of appeal.

As allowed by the rules of the court, Appellant’s brief of argument is dated 24th April, 2006, and filed on the 2nd of May, 2006. Deemed properly filed and served on the 20th of March, 2007. Appellant filed an application on the 23rd of December, 2010 seeking for the appeal to be heard on the Appellant’s brief alone for the failure of the Respondent to file his brief. The application was granted on the 22nd of March, 2011.

At the hearing of the appeal, the court’s record showed that the Respondent was served with the hearing notice on 20th of July, 2011 through his Counsel Opeyemi Gbadebo & Co. In view of the grant of the application and the fact that the Respondent was served with the hearing notice, the court proceeded to hear the appeal.

Appellant distilled two issues for determination from the four grounds of appeal filed. They are: