Mathew Omoniyi Idowu V. Idowu Sanusi Olorunfemi & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment)

This appeal relates to the contempt proceedings against the Respondents for violating Orders made by the Lagos State High Court in Suit No. ID/191/92, wherein the Appellant as Plaintiff, sued one Mrs. V. O. K. Momodu, claiming

(a) A declaration that the Plaintiff is the Legal Owner of the THREE (3) PLOTS of land situate tying and being at Akesan Town which property is situate along Akesan Rood, Akesan, Lagos State, covered by Certificate of No: 77/77/1990C, dated 16th February, 1990 measuring 2057.130, square meters.

(b) A declaration that the entry of the property described above by the Defendant is wrongful, unlawful and mounted to act of Trespass of the same.

(c) An order perpetual injunction restraining the Defendant whether by herself, agents and/or servants from committing further act of trespass on the said property.

To prove his claim, the Appellant called 3 Witnesses, and tendered 12 Exhibits. Mrs. V.O.K Momodu called 4 witnesses including the 1st Respondent as DW3, and tendered documentary evidence, including Exhibits D4 and D7 – copies of the judgment of the Supreme Court delivered in Appeal No. SC.13/1993 – Gbadamosi Sanusi Olorunfemi & Ors V. Rafiu Asho & Ors, wherein the Supreme Court held that Olorunfemi Family were owners of a disputed land.

At the address stage in that Suit No.ID/191/92, the learned trial Judge, Kasali, J., ordered parties to submit Supplementary Address on the issue of the Supreme Court Judgment in Appeal No. SC.131/1993. Both parties addressed the Court, and in his Judgment delivered on 24/2/2005, Kasali, J., held thus –

“…On the face of these two Judgment, there is nothing to show that the land in dispute in the instant case is the some land in which Judgment of the Supreme Court i.e. Exhibit “D4” & “D7” was relate (sic), that is to say nothing in the two Judgments that indicate that the land in dispute was the same land litigated upon before the trial Judge, Onalaja J, which went before the Court of Appeal and subsequently to the Supreme Court …Tendering of Exhibit “D4” & “D7″ without more is not a conclusion evidence that the land in dispute in those two judgment of the Supreme Court is the some in the present suit, The parties in this suit are not parties in the suit that gave birth to Exhibit D4 & D7.

The Defendant did not place sufficient material before this Court to establish the Judgment of the Supreme Court in Exhibit D4 & D7 relate to the same land in dispute before this Court. This Court is not in a position to speculate in the absence of any sufficient material placed before it. From the pleading of both parties and from the totality of the evidence adduced by witnesses on both side, it is obvious that the identity of the land in this case is in dispute. I therefore hold that the land, litigated upon that resulted into Exhibit D4 & D7 is not the same as the land in dispute in this case”.

He concluded as follows at pages 59 – 60 of the Record of Appeal-

“…The Claimant’s claim succeeds and the Defendant’s Counter-Claim is dismissed-

(1) I hereby make a declaration that the Claimant is the legal owner of Three (3) Plots of land situate, lying and being at Akesan Town which property is situate along Akesan Road, Akesan Lagos State covered by Certificate of Occupancy No: 77/77/1990C, dated 16th February, 1990 measuring 2057.130, sq. meters.

(2) I also declare that the entry of the property aforementioned above by the Defendant is wrongful, unlawful and amount to act of trespass of same.

(3) I also award in the claimant’s favour an order of perpetual injunction restraining the defendant whether by herself, agent and or servant from committing further act of trespass on the said property.