Mr. Joseph Ero & Anor V. Iyiola Olukayode Tinubu (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High court of Justice, Ogun State, delivered by Asenuga J. on the 31st March, 2008.

The Respondent was the Plaintiff at the lower court. He claimed in his 2nd amended statement of claim dated the 26th of September, 2007 the following reliefs:-

1. A declaration that the Plaintiff is the person entitled to the statutory Right of occupancy to the land in dispute situate and lying at Arewa close; Akute, Ajuwon, Ifo local Government covered by survey plan No R00/09/23/10/96 dated 04/10/96.
2. N500, 000 (five hundred thousand naira) as general damages against the 1st, 2nd and 3rd Defendants for the trespass.
3. N250, 000 (two hundred and fifty thousand naira) as cost of instituting this action.
4. An order of perpetual injunction restraining the defendant, their servants, agents, privies or howsoever described from further trespassing on the plaintiff’s land.

The Plaintiffs case (now respondent), briefly put, is that sometimes in 1993, he met the 1st Defendant through a cousin and bought the land in dispute for N160,000 (one hundred and sixty thousand naira). The plaintiff bought the land situate at Arewa close, Akute, Ajuwon, Ifo Local Government covered by survey plan No R00/09/23/10/96 dated 04/10/96. For each of the installments, the plaintiff was issued with receipts dated 1st February, 1993, 8th February, 1993 and 15th October, 1996 which were admitted as Exhibit ‘A’, ‘B’ and ‘C’ respectively. It is also the case of the Plaintiff that he paid N65, 000.00 to obtain the family receipt of Ogundimu family. The Plaintiff took possession of the land as virgin land exercised various acts of ownership like fencing, construction and erection of Iron Gate and put the parcel of land under lock and key. The plaintiff surveyed the land in 1996 and got approved building plan prepared by Konsta consult already admitted as Exhibit ‘F’ at the trial court and laid foundation on the land based on the approved building plan. The plaintiff was checking the land until 2003 Local Government Election period when the plaintiff stopped checking and in 2004, the Plaintiff discovered the presence of the Appellants herein on the land with his gate padlock broken.

On enquiry, the plaintiff discovered that the land was sold to the Appellants by Dr. E. A. Enitan and the matter was reported to the Ogundimu family which led to the arrest of 1st Defendant by I. G. Monitoring unit where the 1st Defendant admitted that he had earlier sold to the Respondent before the sale to the Appellants herein.

The Appellants case before the trial court was that they purchased the land in dispute in 2002 as a virgin land from the 1st Defendant an accredited representative of the Ogundimu family. The defendants (appellants) paid the sum N680, 000.00 in three installments as purchase price. The Appellants equally filed and tendered a survey plan Exhibit ‘L’.

Appellants stated that the land purchased from the 1st Defendant was a virgin land, which they cleared of heavy trees before commencement of building. Appellants stated that there was no building foundation whatsoever on the land they purchased and had assurances of the principal members of the Ogundimu family that there was no prior interest on the land. Appellants further stated that in view of the disparities in the description of the land as claimed by both parties, the Appellants’ land at No 6, Arewa close, Olori Quarters, Akute could not be the same as that claimed by the Respondent which was described in the evidence of PW3 to be situated at Baale Akimosi Ota. Appellants also contended that Respondents were aware of the presence of Appellants on the land for close to 5 years as such are caught by the doctrine of laches and acquiescence.

Respondent testified as 2nd plaintiff and called two witnesses. Four witnesses testified for the defence.

At the conclusion of trial, both parties addressed the court. On the 31st March 2008, the trial court entered judgment in favour of the Respondent.

Aggrieved with the decision Appellants lodged an appeal to this court vide their Notice of Appeal filed on 9/4/08 containing seven Grounds of Appeal.

Pursuant to the rules of this court, Appellants brief of argument dated 15th June 2009 was filed on 16th June 2009 but deemed properly filed and served on 18th June 2009 pursuant to order of this court granted on 18/6/09. Respondent’s brief of argument dated 15th July, 2009 was filed on same date. Appellants’ reply brief was filed on 24/9/2009. At the hearing of the Appeal both counsel adopted their respective briefs of argument’ Appellant’s counsel urged the Court to allow the appeal. While Respondent’s counsel urged the court to dismiss the appeal.

Appellants distilled six issues from seven grounds of appeal thus:

(1) Whether the Respondent proved the identity of the land he claimed before the trial court (Ground one).

(2) Whether the Appellants and the Respondents have equal equitable interest over the land in dispute as to warrant the application of the doctrine of priority in favor of the Respondent (Ground Two).