Makanjuola Ayoola V. Alhaji Habibat Yahaya (2004)

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.

This is an appeal against the judgment of the High Court of Kwara State in suit No. KWS/267/94 delivered by J.F. Gbadeyan, J. on the 12th day of November, 1999 in which the court granted the counter-claim of the respondent and awarded the sum of N200,000.00 by way of general damages.

The appellant is not satisfied with the decision, hence, the appeal.

The complaints of the appellant as contained in his two grounds of appeal are as follows:

Grounds of appeal:
“1. The learned trial court erred in law in granting the declaratory reliefs asked for by the 1st defendant in the counter-claim against the 2nd defendant.

Particulars of Error
(a) There was no evidence adduced to support the grant of the reliefs in favour of the 1st defendant.
(b) The averments in support of the 1st defendant’s counter-claim was abandoned as the 1st defendant did not proffer evidence on same.
(c) The assertion of the counter-claimant was never proved

(2) The learned trial court erred in law in coming into the conclusion that the 2nd defendant was liable in trespass and to pay jointly and severally with the plaintiff a sum of N200,000.00 to the 1st defendant for inconveniences and disturbances suffered by the counter-claimant.

Particulars of Error
(a) The issue of whether the 2nd defendant committed trespass or not was placed before the court.
(b) The court granted to the 1st defendant a relief she did not claim.
(c) There was no evidence that the 2nd defendant entered the 1st defendant’s land (if any) to entitle her to the damages awarded.
(d) The damages awarded is excessive.

The judgment of the learned trial court has occasioned a miscarriage of justice.”

In the appellant’s brief of argument filed on 13/7/2000, learned counsel for the appellant, Dayo Eniwaye, Esq. has submitted two issues to this court for the determination of the appeal.

The issues are as follows:
“(a) Where (sic) or not the trial court was right to have granted the declaratory relief of the 1st defendant against the 2nd defendant without taking evidence?.
(c) Whether or not the trial court was right to have found the 2nd defendant liable for trespass and thereby awarded N200,000.00 damages when it was not a relief placed before the court?.”

The facts of the case include the following: on the 14th day of November, 1994, one Alhaja Tajudeen Olagunju caused a writ of summons to be issued against the respondent in this appeal claiming:
“1. A declaration that the plaintiff is the bonafide purchaser without notice of all that piece or parcel of land with the developments thereon situate, lying and being at Geri-Alimi roundabout (known as Ayoola Estate) along Ilorin-Lagos road near Ilorin Grammar School Ilorin, covered by customary rights of occupancy No. 245 dated 14/9/94 issued by the Ilorin West Local Government of Kwara State.

2. An order of perpetual injunction restraining the defendant either by himself, agents, servants, privies or through any person(s) however, from further trespassing and/or disturbing the plaintiff on the said property situate lying and being at Geri Alimi roundabout (known as Ayoola Estate) along Ilorin-Lagos road near Ilorin Grammer School, Ilorin and covered by customary right of occupancy No. 245 dated 4th September, 1994 issued by the Ilorin West Local Government Kwara State.”

In the course of the proceedings, the present appellant was joined in the action as a second defendant when it became apparent that he was a common vendor to the plaintiff and the original defendant in the action.