Lateef Adegbite & Anor V. Aminu Amosu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

The Claimant/Respondent for himself and on behalf of Eyile Family by his amended writ of summons and statement of claim claimed against the Defendants/ Appellants as follows:

(a) Declaration that the 1st Defendant has forfeited his right to be on the land of the Plaintiff situate lying and being at 401, Oshodi Express Road, Pleasure Bus Stop, Oke – Odo, Agege, Lagos State which he held of the Plaintiff as a tenant thereof.

(b) Possession of the said land.

(c) N500, 000.00 against the Defendants being damages for trespass committed on the said Plaintiff’s land at Oke-Odo which was not granted to the Defendants as tenants.

(d) An injunction restraining the Defendants, their servants, agents or privies or howsoever described from committing any acts of trespass on the said Plaintiff’s land.

The facts giving rise to the institution of the suit are that the original claimant on behalf of the Eyile family Madam Wasilatu Olapeji who died in the course of the proceedings and was substituted by her son Aminu Amosu claimed to be the owner of the land in dispute as shown in the survey plan Exhibit A, which she claimed was given to her by partition of the Akinlabi family land. She claimed that she rented the land to the 1st Defendant who was issued a receipt Exhibit B. She claimed that after the expiration of the period of the rent paid for, the 1st Defendant refused to pay any further rent.

Subsequently, the 1st and 2nd Defendants began to claim ownership of the land in dispute, saying that they bought the land from one Tunde Akapo, one of the members and attorney of the Akinlabi family as per Exhibit F. The Claimant’s case was that the land no longer formed part of the Akinlabi family land after it was partitioned and given to her. Tunde Akapo consequently had no right to lay claims on the land or sell same to the 2nd Defendant or anyone. As evidence of the partition, Exhibit E was tendered in court through its maker CW4 who happened to be one of the lawful attorneys appointed by the Akinlabi family in Exhibit F to manage the Akinlabi family land.

The Claimant claimed that as Tunde Akapo did not have her consent to sell the land to the 2nd Defendant the sale was void and the 2nd Defendant was a trespasser on the land. She contended that although Tunde Akapo was one of the lawful attorneys in Exhibit F, he could not sell the disputed land as the authority in Exhibit F which he relied on did not extend to the sale of the Claimant’s land which was not part of the family land.

The 2nd Defendant on the other hand in his statement of defence maintained that the land sold to him by Tunde Akapo was the Akinlabi family land and that the said Tunde Akapo as a lawful attorney as shown in Exhibit F had the authority to sell the land to him.

At the hearing, the Claimant called four witnesses while the Defendant called three. At the conclusion of hearing and adoption of written addresses, the learned trial Judge Akanbi J. delivered judgment on 29/6/06 granting reliefs (a), (c) and (d) of the amended writ of summons. He also ordered immediate possession of the land in dispute in favour of the Claimant. Dissatisfied with the judgment, the Appellant filed a notice of appeal which was later amended. From the amended notice of appeal which contained 7 grounds of appeal, the Defendants now Appellants formulated five issues for determination as follows:

1. Whether considering the pleadings of the Claimant, the evidence and documents adduced by Claimant and his witnesses in support thereof, has claimant who relied on partitioning of AKINLABI FAMILY LAND and subsequently the AKAPO BRANCH of AKINLABI FAMILY LAND as the root of her entitlement to the land in dispute succeeded in proving same? Should the answer be in the negative, has this not occasioned a gross miscarriage of justice? (Grounds 1 & 4)
2. Whether the 1st Defendant has by his defence through the uncontradicted and unshaken evidence of his expert witness a Licensed Surveyor coupled with the evidence of the Claimant’s witnesses shown that he is not on any land purportedly claimed by Claimant, rather 1st Defendant is on AKINLABI FAMILY LAND unpartitioned. (Ground 2)
3. Whether the learned trial judge can unilaterally grant more than the claimant’s request for possession simpliciter as sought for on the writ of summons and that, without calling for any inputs from the parties, a device violating the constitutional RIGHT OF FAIR HEARING under Section 33 of the 1979 Constitution, of the Federal republic of Nigeria. (Ground 3)
4. Whether learned trial judge can grant the 2 inconsistent reliefs of possession and trespass more so that the authoritative pronouncement of Hon. Justice G.B.A Coker (JSC as he then was) in AROMIRE V AWOYEMI (1972) 2 SC (Reprint) 1 at 7 lines 10 to 30 was brought to the attention of the learned trial judge in the defendants’ written address (at pages 142 to 144 of the record). If the answer is negative has same not occasioned a miscarriage of justice? (Ground 5)
5. Whether the award of N500,000.00 as damages for trespass ordered by the Hon. Learned trial judge was not outrageous, capricious and against legal principle especially as Claimant and Claimant’s witnesses gave no iota of evidence in support of their claim for general and special damages for trespass.

The Respondent did not formulate his own issues but proffered arguments in respect of issues which were not clearly identifiable. At the hearing of the appeal on 12/6/13, learned Counsel for the Appellant, Mr. Oyewo in adopting their amended brief of argument submitted that the Respondent did not amend his brief of argument sequel to the amendment of their notice of appeal and brief of argument. He urged the court to discountenance the Respondent’s brief as it cannot precede the amended notice of appeal and the Appellant’s amended brief. He further urged the court to consider the appeal only on the amended Appellant’s brief. Learned Counsel apparently forgot as rightly pointed out by learned counsel for the Respondent that an amended process takes effect not from the date of amendment but from the date of the original document and substitutes the original process. See A.S.W.A. v Ekwenem (2009) 13 NWLR (Pt. 1158) 410 @ 435; Oguma v IBWA(1988) NWLR (Pt.73) 658 and Ezinwa v Agu (2004) 3 NWLR (Pt. 861) 431. The Respondent’s brief in response to the Appellant’s original brief is competent as an answer to the amended brief of the Appellant.

I shall set down the arguments of both counsel on the issues identified and then resolve all the issues together

APPELLANTS’ ARGUMENTS: