MR. Ajibola Aderoju & Ors V. Kamka Olalere (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Oyo State High Court, coram Hon. Justice M. E. Oladehinde delivered on 30th March, 2006. The judgment was entered in favour of the plaintiff and against the Defendants. The Defendants are the Appellants in this appeal while the Plaintiff is the Respondent and will respectively be referred to simply as the Appellants and the Respondent in this appeal.

The Respondent contends that he bought the land in dispute located at Eleni Ogbagba village Area Akobo, Via Olorunda road, Ibadan from one Mr. Oyebamiji Alagbe who in turn had earlier bought a parcel of land including the land in dispute from the 2nd Appellant.

The Respondent maintains that he possessed the necessary title documents on the land such as right of occupancy since 1988. That he had a building structure thereon which had reached the lintel level in 2002 before the 1st Appellant started trespassing on the land and which act of trespass led eventually to the demolition of the structure on the land.

In defence, 2nd Appellant maintains that the land he sold to the 1st Appellant’s vendor is at Elenioseba village, along Olorunda Abaa Road, Ibadan and not extending to Ogbagba as claimed by the Respondent’s Vendor.

The position of the 2nd Appellant is that judgment was entered in his favour in respect of the land in dispute in an ealier suit, but no details as to the suit were stated, and that following the decision in the said suit, he executed the writ of possession against everyone on the land including the Respondent before he sold a plot of the land in dispute to the 1st Appellant. The 1st Appellant on his own claimed he bought the land in dispute from the 2nd Appellant but he did not destroy any building on the land.

Upon an alleged demolition by the 1st Appellant, the Respondent instituted this action in Court and claimed against the 1st Appellant as follows:

1. The sum of N2,000,000.00 (Two million Naira) against the Defendants jointly and severally being special and general damages for trespass committed and still being committed on the plaintiffs property situate, lying and being at Ogbagba Village off Olorunda, Abaa Road, Akobo Area Ibadan.
2. Perpetual injunction restraining the Defendants by themselves their by agents, or privies or otherwise howsoever from committing further acts of trespass on the said land.

The learned trial Judge found for the Respondent.

Agitated by the decision of the learned trial Judge, the Appellant filed a notice of appeal dated 19th May, 2006 but filed on the 30th May, 2006, containing four grounds of appeal. The records for the appeal were transmitted to this court on the 8th October, 2009.

When the appeal came up for hearing on the 13th day of May, 2014, A. O. Bada Esq., of learned counsel for the Appellant adopts the Appellant’s brief of argument. The Appellants brief was dated 25th November, 2009 and filed on the same day in which were raised and argued three issues for determination as follows:-

1. Whether the 2nd Appellant was right in levying execution on the land in dispute (Distilled from ground 3).
2. Whether the learned trial judge rightly reviewed and evaluated the evidence on record by granting the Plaintiffs Respondent claim.
3. Whether in view of the evidence on record, the sum of N200,000.00 awarded as general damages was excessive.

Folasade B. Aladeniyi (Mrs.) Esq., of learned counsel adopts and relies on the Respondents’ brief of argument dated 1st March, 2011 and filed on the 2nd day of March, 2011. Counsel raised and argued two issues for determination as follows:-

1. Whether the learned trial Judge rightly reviewed and evaluated the evidence on record before granting the Plaintiff/Respondent’s claims (Covers grounds 1 and 3)
2. Whether in view of the evidence on record, the sum of N200,000.00 awarded as general damages was excessive, (covers ground 2).

The three issues of the Appellant and the two issues of the Respondent are similar. The issues of the Respondent will be adopted for the determination of this appeal.

Issue 1

The Appellant assets that the fact that there is a judgment in his favour in respect of the land in dispute attests to his entitlement as possessing a better title. (Refers JONES V. CHAPMAN (1947) 2 EX 803.)