Madam Jaratu Abeje & Anor. V. Madam Saratu Apeke (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is over land, the ownership of which is disputed. The case at the trial stage was heard by the High Court of Oyo State in which court it was assigned Suit No. 1/177/97. Judgment was delivered on 16/10/2008.

The main disputants are siblings of the same parents. The respondent (the plaintiff in the lower court) is the older brother of the 1st appellant (the 1st defendant in the lower court). The 2nd appellant is the son of the 1st appellant. It is noteworthy that the appellants filed a counter-claim in the lower court.

The facts of the case are straight forward. The land in dispute according to the respondent, who was the plaintiff in the lower court, is part of 2 plots of land jointly owned by him and the 1st appellant. The 1st appellant disputes this. According to her, the entire land was purchased by her. As a trusting sister she gave money to her older brother to buy the 2 plots of land for her and he did. It is noteworthy that the respondent is now late and has been substituted by his first child.

After hearing the case, the trial judge entered judgment for the respondent. He declared the appellants as trespassers, restrained them together with their servants, agents and privies from having anything to do with the land by an order of perpetual injunction and awarded general damages against the appellants for trespass. He dismissed the appellants counter-claim. The Judge awarded N10,000 costs in favour of the respondent for the success of his claim and another N10,000 in his favour with respect to the unsuccessful counter-claim.

Dissatisfied with the judgment, the appellants filed a Notice of Appeal dated 15th January, 2009, challenging the judgment on 7 grounds. They prayed this court for an order allowing the appeal and for setting aside the judgment of the lower court. They also prayed this court to dismiss the claim before the lower court.

The grounds and particulars of their dissatisfaction with the judgment of the lower court as set out in the Notice of Appeal are as follows:

GROUND 1

The learned trial judge erred in law and misdirected himself when he held as follows:

”In my view, the 1st Defendant’s root of title of the land in dispute goes back to the plaintiff as she admitted that she did not know the vendors of her land but that the plaintiff transacted dealings in land matters on her behalf. This shows that she only relies on the plaintiff as her root of title.

PARTICULARS

(a) The Claim of the 1st Respondent as Plaintiff was for a portion of the land allegedly purchased jointly by him and the 1st defendant.

(b) The defence of the 1st defendant was a denial of joint purchase or ownership of the two plots and an assertion that she owned the said plots solely, though the Plaintiff assisted her to buy them,

(c) The defence of the 1st defendant was not as found by the Trial Judge, a reliance on the Plaintiff as her root of title.