Lafarge Cement Wapco Nigeria PLC V. Engineer Lateef Ishola Owolabi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ogun State High Court delivered on 24th April, 2012 in suit no. HCT/8/2009.

The Respondent was claimant at the Court below. In an action by way of writ of summons dated 21/01/09, he sought for a declaration of title to land, perpetual injunction against trespass and a substantial amount of money as special and general damages for trespass against the Appellant as the Defendant. The claim is in the following terms; thus:

“a. Declaration of title to the statutory right of occupancy in respect of all that land situate along Papalanto/Lagos Road at Papalanto more particularly described in Survey plan No.JAC/011/95 of 6/2/95 drawn by Owotabi O. S. Licensed Surveyor (Exhibit A).

b. Perpetual Injunction restraining the Defendant, her agent and privies from further trespass unto the land.

c. The sum of N500 Million as special and general damages for trespass.”

Pleadings were duly filed and exchanged. The matter proceeded to trial. At the trial both oral and documentary evidence were adduced by the parties. In its judgment, the Lower Court gave a decision in favour of the Respondent. The Appellant was dissatisfied with that decision and appealed to this court in a notice of appeal dated and filed on 30/04/12 containing 4 grounds of appeal.

To argue the appeal, the Appellant filed a brief of argument dated 19/04/13 on 12/4/13. The brief of the Respondent was filed on 2/8/13 but deemed properly filed and served on 29/04/14. Further to its main brief, the Appellant filed a reply brief dated 10/05/14 on 12/5/14.

From the 4 grounds of appeal, the Appellant formulated the following 2 issues for determination of this appeal. They are:-

“i. Whether or not the portions marked C and D verged yellow in the Survey plan No.OG/704/2009/017 (Exhibit A1), described as the land in dispute are not inconsistent with the parcel of land verged RED in (Exhibit A), and thereby constituting a new cause of action.

ii. Whether or not, on the totality of the evidence before the Lower Court, the Area verged Red in Exhibit A1 and verged Blue short of the Area verged Red and Green in Exhibit L was submitted to the Lower Court for adjudication.”

On behalf of the Respondent, learned counsel raised and argued a notice of preliminary objection seeking to challenge the competence of issue two as formulated and argued on behalf of the Appellant. It was raised and argued in paragraphs 5.00 to 5.10 at pages 6 to 8 of the Respondents’ brief of argument.

Out of the abundance of caution, learned counsel to the Respondent had earlier at page 5 of his brief of argument formulated the following 2 issues for the determination of this appeal. They are:.

‘(1) Whether from the totality of evidence before the Lower Court and even this Honorable Court the Appellant have sufficiently proved that the area marked C and D verged YELLOW in Survey Plan No. OG/704/2009/017 in (Exhibit A1) described as the land in dispute are not inconsistent with the parcel of land verged RED in (Exhibit A) and therefore does not constitute a new cause of action.