MR. Vincent Adeeko V. MR. Emmanuel Amaechi (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Lagos State in the Lagos Judicial Division, the Respondent as Claimant in his writ of summons filed on 10/12/09 claimed against the Appellant/Defendant as follows:

i. A declaration that the claimant is the owner and entitled to the statutory right of occupancy on the land situated at Thomas Estate, Ajah, Eti Osa, Local Government Area of Lagos State containing an area of approximately 1352. 173 square meters more particularly delineated and shown on survey plan No. ASC/LA/575/97 dated 25-05-97 drawn by F. A. Ogunbadejo, a Licensed Surveyor.

ii. A perpetual injunction restraining the Defendant whether by himself his servants or agents or otherwise howsoever from going into or, carrying out any development activities whatsoever on the land situate, lying at Thomas Estate, Ajah, Lagos State identified by the Survey dated 25th May, 1997.

iii. N2,000,000.00 (Two Million Naira) Special Damages for destruction of fence and use of the claimants building materials and equipment.

iv. Possession of the land.

v. N1,000,000.00 as General Damages for trespass.

As is the practice these days, pleadings were filed with all processes and documents to be relied on front loaded together with witness depositions. After pre-trial and issuance of Pre-trial Conference Report, the case was heard by Dada J. In proof of their respective cases the parties called two witnesses each.

At the conclusion of trial and adoption of addresses, the learned trial Judge held that the Respondent proved title in respect of one plot only but proceeded to grant reliefs i, ii and iv of the Respondent’s statement of claim while refusing reliefs iii and v in the following words at page 235 of the printed records:

“There appears to be no contention on the specific land being claimed by the Claimant as particularized in this suit. The beacon numbers in exhibit 3 are different from the ones in the Defendant’s exhibit D5 and his composite plan in exhibit D4. Therefore I am satisfied that the Claimant is entitled to judgment as claimant in relief 1 of his statement of claim, there being no dispute on this particular plot surveyed in exhibit 3”.

“I must also not fail to note that the defence of the Defendant in this case is not on the land being claimed by the Claimant which land is on Emman Amaechi Street, Thomas Estate, Ajah, Lagos but rather on two (2) plots of land at Mobolaji Ajibola Avenue, off Gilbert Odior Street, Thomas Estate Ajah, Lagos.

The lands are therefore different one from the other so that the burden of proof on the Claimant to prove ownership of the land captioned Exhibit 3 has been discharged while the defence of the Defendant does not discharge his burden of proof on the specific land at Emman Amaechi Street in dispute but rather pleads his defence on two (2) different lands entirely. His defence on the land in dispute is consequently wanting in bona fide and I so hold”.

Dissatisfied with the judgment, the Appellant caused a notice of appeal to be filed against the judgment on 7/3/13 with 11 grounds of appeal. In the Appellant’s brief settled by Henry Eshijonam Omu, Esq., and filed on 27/5/13, five issues were set out for determination as follows:

ISSUE No. 1.