Mr. Samuel Asonibare V. Mohammed Mamodu & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the leading Judgment)

This appeal is over a land dispute. The Administrators of the Estate of Late Major-General Abdul R. A. Mamudu as Plaintiffs in the lower court (Respondents in this appeal) sued the Appellant over a piece of land in Ibadan, specifically at the Government Residential Area, Agodi, Ibadan. The land was allocated to the Late Major-General who was then a Brigadier by the Military Governor of Oyo State via a letter dated the 13th of June 1979.

He paid the required fees and charges and was given a Certificate of Statutory Right of Occupancy dated 12th June, 1979. In an obvious intention of commencing construction work on the land, the land was fenced, secured with a gate, with heaps of sand and gravel dumped in it. Sometime in September 1998, the Respondents observed that the Appellant entered the land.

Disconcerted by the observation, the Respondents approached the court below and filed an action against the Appellant claiming damages for trespass and praying the court for an order of perpetual injunction restraining the Appellant from further acts of trespass.

In response to the Respondents’ action, the Appellant (the defendant at the lower court) filed a Statement of Defence in which he pleaded that even if it were true that the Late Major-General Mamudu was allocated the land in dispute and was issued with a Certificate of Statutory Right of Occupancy, same was revoked.

The Appellant claimed that his vendor, one Alhaji R. Asamu was granted a Statutory Right of Occupancy in 1997 which supercedes the one issued to the Late General. It was averred that Alhaji Asamu assigned his interest in the land to the Appellant with the consent of the Military Administrator of Oyo State vide a Deed of Assignment and, that the Appellant has since developed the land by erecting a building on it.

After hearing the parties, the learned trial judge gave his judgment on the 26th of February, 2007. He found merit in the case of the Respondents and granted them all the reliefs claimed by them.

Perturbed by the judgment, the Appellant on the 8th of May, 2009 filed a Notice of Appeal against the judgment. He found fault with several aspects of the judgment and found reason to draw up 7 grounds of appeal. On 20/7/2009, the Appellant’s Brief was filed. Seven issues were reeled off for us to determine in the appeal.

The issues are –

(1) Whether it was proper for the learned trial Judge, having on the 23rd of January 2006 made an order joining the Oyo State Government, to hear and determine the suit before him and pass judgment thereon despite the failure of the respondent in flagrant disregard of the order of 23rd January, 2006, to amend their Writ of Summons and Statement of Claim and serve same on the Oyo State Government in consonance with Order 11 rule 15 of the High Court of Oyo State (Civil Procedure) Rules, 1988.

(2) Whether the Certificate of Occupancy issued to Alhaji Raufu Asamu Registered as 33/33/3249 of the Register of Deeds, Ibadan Oyo State (Exhibit B1) does not supercede the Certificate of Occupancy dated 12th June, 1979 and registered as 34/34/2282 of the Register of Deeds, Ibadan, Oyo State (Exhibit B) issued the Respondent’s father.

(3) Whether the non cross-examination of the PW2 who was called by the Respondents to tender Certificate of Occupancy dated 12th June 1979 and registered as 34/34/2282 of the Register of Deeds, Ibadan, Oyo State (Exhibit B) to the effect that the Certificate of Occupancy (Exhibit B) was revoked implies an admission of the existence and validity of the Certificate of Occupancy (Exhibit B).

(4) Whether the Deed of Assignment dated 9th September, 1997 and registered as 43/43/3270 of the Register of Deeds, Ibadan, Oyo State (Exhibit B2) which conferred title on the Appellant does not have a basis in law.

(5) Whether Exhibit B was valid and subsisting at the time the Certificate of Occupancy dated 24th September, 1997 and registered as 33/33/32419 of the Register of Deeds, Ibadan, Oyo State (Exhibit B1) was executed.