MR. Omosanya Solaru V. Pastor Isaiah Tejumola (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 High Court of Ogun State Sagamu Division per Hon. Justice O. O. Majekodunmi delivered on the 23rd day of February, 2011 against the Appellant as Claimant and in favour of the Respondent as Defendant.

The parties shall hereafter be referred to simply as appellant and Respondent respectively.

The Respondent claimed before the trial court the following:-

1. A declaration that the claimant is entitled to the grant of a statutory right of occupancy over a parcel of land measuring 1835.277 square metres situate lying and being along Uren Road, Ikenne Remo in the Ikenne Local Government Area of Ogun State contained and delineated in the survey plan no. OG/1534/2008/104 dated 26/09/2006 prepared by F. Daramola, surveyor of Foldland Mapping Consult of No. 163, Olisa Street, Ojebu Ode, Ogun State.
2. An order of perpetual injunction restraining the Defendant, his servant, agents and privies from further entering the said parcel of land or doing anything thereon.
3. N500, 000.00 as special and general damages suffered by the claimant from the trespass committed by the Defendant where he went on the said parcel of land and destroyed claimant’s properties thereon.
4. An order compelling the Defendant to remove his bag of charms kept on the land. (See pages 2-4 of the records for this appeal as amended at pages 123-126, 170-173 for defence to counter-claim).

While the Appellant counter-claimed as following:-

1. A declaration that all that parcel of land in dispute measuring four plots lying and situate off old Ikenne/Illishan Road, Ikenne beside Oloye Ayoganku Akinsanya’s fenced six plots of land belongs to the Defendant/counter-claimant.
2. An order of perpetual injunction restraining, the claimant, their agents, vendors, privies, assignees, servant from further trespass or carrying on of worship service or prayers or any development or building on the said Solaru land at Ikenne along the old Ikenne/Illishan Road.
3. Damages in the sum of one million (N1m) only for trespass, loss of the use of land, destruction of economic crops, mental agony and humiliation suffered in the hand of the claimant/respondent at the Police Station in the community.
4. Cost of action. (See pages 41-42 of the records)

Pleadings having been filed and exchanged by the Parties, the suit proceeded to hearing, being dully contested by both parties at the trial court. At the end of the testimonies, the learned Counsel each addressed the court. The learned trial Judge in a considered judgment granted all the claims of the Respondent and dismissed the counterclaim of the Appellant. (See pages 240-256 of the records)

Dissatisfied by the decision, the Appellant filed a Notice of Appeal containing six (6) grounds. (See pages 257-260 of the record of proceeding for this appeal).

The brief facts of the case which led to this appeal are that the parcel of land in contention originally belonged to the Messe family of Ikenne, Remo in Ogun State. That the Respondent bought the land from one Akinsanya, a part of the Messe family. While the Appellant contends that the Respondent has taken more than what belong to the Akinsanya’s family and thereby encroaching upon the land equally allotted to him as a member of Messe family.

At the hearing of this appeal on the 19th day of November, 2013, Aderemi David Jagun Esq., of learned counsel for the Appellant adopted the Appellant’s brief of argument dated 23rd August, 2011, filed on the 24th day of August, 2011 but deemed filed on the 19th November, 2013. Four issues were raised for determination as follows:-

1. Whether the lower court was right in its finding that the Respondent had been in long possession, while refusing the established principle of proof of title of traditional evidence.

(Grounds 1 & 2 of the notice of appeal)

2. Whether the lower court was right in its finding on relying on a piece of document which has never been subjected to public scrutiny to confer ownership on the Respondent without adverting itself to proof of title via adjacent land (Grounds 2 & 3 of the notice of appeal).
3. Whether the lower court was right when despite the established principles governing award of damages, be it special and general damages, it awarded the sum of N90, 000.00 as special damages and the sum of N100, 000.00 as general damages. (Ground 4 of the notice of appeal).
4. Whether the lower court was right when it ordered that the Appellant should remove the bag of charms, that was not led in evidence as such is not known to the laws.

The Respondent’s Counsel Tommy Adeyemi Esq. also adopted the Respondent’s brief of argument dated 10th April, 2013 and filed on the same day but deemed filed on the 19th November, 2013. The learned Counsel merged issues one and two of the Appellant into an issue for the Respondent while adopting issues 3 and 4 as formulated by the Appellant. Issue one is as follows:-

1. Whether the learned trial judge was right when he accepted the Respondent’s case and found it more probable that the Respondent had been in long possession of the land in dispute whilst he discredited the evidences of the Appellant and his witnesses. (Distilled front ground 1, 2 & 3 of the grounds of appeal).

This appeal shall be determined on the issues formulated by the Appellant. Issues one and two shall be taken together.

Issues one and two

The learned Counsel for the Appellant challenges the decision of the learned trial judge on two planks as follows:-