Ladi Ariyo & Ors. V. Alhaji Jubril Adewusi & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

At paragraph 40 of the 3rd Amended Statement of claim dated 28th of March, 1994, the Respondents herein who were the Plaintiffs at the lower Court claimed against the Appellants in this appeal as follows:-

‘1. A declaration that the descendents of Olaogbe and Sunmola Gedengbe and relations of Sunmonu Akano are the persons entitled to a right of occupancy over the land verged red in plan number SBS/144/93L drawn by Sunday B. Saidi licensed Surveyor, and dated the 12/05/93.

2. The sum of N50,000:00 as damages for trespass to the said land.
3. A perpetual injunction restraining the defendants and other members of the Oke Ogbere family, whether by themselves, their servants and/or agents whomsoever from further trespassing on the said land verged yellow in plan number SBS/144/93L drawn by Sunday B. Saidi, licensed surveyor, and dated 12/05/93′.

In response to the Respondents’ claims, the Appellants filed a statement of defence dated 23rd of July, 1996 and after paragraph 26 of the statement of defence, the Appellants set out the following counter claims as follows:-

(i) Declaration that the Defendants are entitled to the statutory Right of Occupancy in respect of all the piece or parcel of land shown on survey plan No. LAT/1175/76A dated 4th day of December, 1976 filed along with the statement of Defence and counter claim.

(ii) Perpetual Injunction restraining the plaintiffs, their servants, Agents and/or privies from committing further acts of trespass upon the land in dispute.

(iii) N50,000 damages for trespass upon the land in dispute’.

Issues having been joined, the case was accordingly set down FOR TRIAL. Witnesses were called by both parties and several documents, which will be looked into in course of this judgment, were tendered and admitted in evidence. At the end of the trial and in a reserved and considered judgment which was delivered on the 27th day of January, 2005, the lower Court granted all the claims of the Respondents and dismissed the counter claim of the Appellants in its entirety. It is against this judgment that the Appellants have appealed to this Court, initially by a notice of appeal dated 2nd January, 2005 and filed the same date. However, this notice of appeal was amended and further amended. The final notice of appeal is the one titled ‘2nd Amended Notice of Appeal’, and it is dated 30th April, 2008 and filed on the 5th of May, 2008. This final notice of appeal contains sixteen grounds of appeal.

Learned counsel for respective parties filed and exchanged briefs of argument. Mr. Jimoh Lasisi, learned senior counsel for the Appellants formulated 7 issues for the determination of this appeal at pages 2-3 of the Amended Appellants’ brief of argument dated 30th April, 2008 and filed on the 5th of May, 2008. These issues are hereunder reproduced as follows: –

1. Whether the learned trial Judge was right when she held that the plaintiffs proved ownership of the land subject-matter of this case.

(2) Whether the evidence of boundary men called by the plaintiffs to support the plaintiffs’ case for title ought to have been (sic) any weight at all.

(3) Whether Exhibit D (Plan No. LAT/1175/76) an uncertified plan is admissible and has any probative value under the provisions of Section 3(1) (b) (i) Cap 132 LLS Regulations 31 made under the Survey Law and Evidence Act.

(4) Whether the evaluation of the oral and documentary evidence by the learned trial Judge did not occasion a miscarriage of justice.

(5) Whether the plaintiffs proved the claim for damages for trespass and title against the defendants.

(6) Whether the learned trial Judge was wrong when she held that the evidence adduced by the defendants cannot sustain the counterclaim.