Mrs. Bamiso Mayowa Bukola V. Mrs. V. A. Oshundahunsi & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Justice Kwara State holding at Ilorin in suit No. KWS/149/2005 delivered by Adewara (J) on the 22nd day of February, 2011 in which the learned trial Judge held that the claimant failed to prove her case on the preponderance of evidence and therefore dismissed same.

The Appellant was the Plaintiff/claimant in the Court below whilst the Respondents were the Defendants in that court. On the 1st day of August, 2005, the Appellant as Plaintiff/claimant through her counsel J. O. Baiyeshea (SAN) took out a writ of summons in the lower court in which the following reliefs were sought.

“1. Declaration of title to the parcel of land located at Tanke Area, Ilorin, Kwara State and properly described as plot 21, Block 28A, TPS/Misc. 124 and conveyed to the claimant by letter of allocation Ref: LAND/ARO/RES. 2402/Vol.1/5 dated 8th December, 2001.

2. A declaration that entry of the Defendants on the claimant’s parcel of land constitutes trespass.
3. N100, 000.00 damages against the defendant for trespass on the Claimant’s land.
4. An order of perpetual injunction restraining the defendant her agents, privies and other persons however described from further trespassing on the Claimant’s land.
5. A declaration that the purported revocation of the Claimant’s interest, title, holding and possession of the said plot by the 2nd and 3rd defendants is null and void and of no effect whatsoever.
6. A declaration that the purported allocation of the said plot No. 21, Block 28 TPS/Misc, 124 (Ilorin) of 0.182 Ha as contained in the approval for grant of A Right of occupancy No. KW 14405 of 3rd August, 2005 to the 1st Defendant by the 2nd and 3rd Defendants is null and void and of no effect whatsoever.
7. An order of this Honourable Court setting aside the purported allocation of the said plot No. 21, Block 28A TPS/Misc. 124 (Ilorin) of 0.182 Ha as contained in the approval for the grant of A Right of Occupancy No. KW 14405 of 3rd August, 2005 to the 1st Defendant by the 2nd and 3rd Defendants.
8. A mandatory order compelling the 2nd and 3rd Defendants to issue the Approval for the Grant of A Right of Occupancy over the said Plot No. 21, Block 28 ATPS/Misc/124 of 0.182 Ha as per L.P. 55 FA Ilorin to the claimant.

Attached to the Writ of Summon is a Statement of Claim consisting of 23 paragraphs, Statement on Oath of the two witnesses for the claimants and some documents which were later tendered as Exhibits.

It is instructive to note however that the Appellant/Claimant’s Writ of Summons filed on the said date was initially against the 1st Respondent/Defendant as the sole Defendant. It was the first Defendant that brought an application to join the 2nd and 3rd Defendants as codefendants in this suit and the processes were then amended accordingly to reflect the 2nd and 3rd Defendants as parties in the suit.

In response, the 1st Defendant filed a statement of defence of 52 paragraphs which incorporated a notice of preliminary objection and the Statement on Oath of the two witnesses and some documents were filed along with the Statement of Defence of 1st Defendant which were later tendered and admitted as exhibits at the trial of the suit.

Upon being joined as Defendants and served with the Court processes in respect of the matter, the 2nd and 3rd Defendants vide a motion for extension of time filed their Statement of defence, Statement on Oath of their witnesses and documents later tendered as exhibits. At the trial, the Claimant testified in person and called her sole witness (her husband) and some documents were tendered through her.

In response, the 1st Defendant equally testified in person and called a witness one Johnson Oladipo, she equally tendered documents which were admitted and marked as exhibits. The 2nd and 3rd Defendants also called one witness by name Olatayo Adekeye through whom some documents were tendered. After the close of evidence, parties filed their written addresses and same were later adopted before the trial Court.

On the 22nd day of February, 2011, the learned trial Judge after evaluation of the evidence adduced by both parties in a considered judgment found for the Defendants/Respondents and held inter alia thus:

“Finally, having regard to the evidence adduced before me in this case, I am of the view that the Claimant has failed to establish her case on the preponderance of evidence and I so hold.

In consequence, I hold that the claim fails and same is hereby dismissed.”

The learned trial Judge dismissed the 1st head of counter claim for general damages but found merit in the 2nd head of counter claim for general damages wherein he held as follows:

“Finally, I find merit in the Counter Claim of the 1st defendant as same is hereby granted.