Mrs Bukola Onabule V. Prince Olusanya Sanya (2016)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A. 

This is an appeal against the judgment of the Lagos State High Court presided over by HON. JUSTICE M. O. OBADINA delivered on the 25th day of April, 2007 wherein judgment was entered for the Respondent (Claimant at the Lower Court) and the counter claim dismissed. Dissatisfied with the said judgment the Appellant filed an Amended Notice of Appeal setting out 5 grounds of appeal.

The brief facts to this appeal are that the Respondent as Claimant before the trial Court initiated an action against the Appellant praying the Court for the following reliefs:
a. Declaration that the plaintiff is the owner of all that piece of land lying being and situate at No.28, Matanmi Street, Odi Olodo Mushin on the Mainland City of Lagos measuring approximately 501.270 Square metres and forming part of ALL THAT PIECE OR PARCEL OF LAND Known as Plots 1 ? 5 AIDA MOORE’S ALLOTMENT which is affirmed by Deed of Conveyance registered as No. 35 at page 35 in Volume 950 (colony) of the Deed of Register now kept at the Lagos State registry or alternatively as the person entitled to

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apply for statutory right of occupation.
b. Possession of the land in dispute
c. A claim of N1,000,000.00 (One million Naira) as general damages.
d. Perpetual injunction restraining the defendant, her servants, agents or privies or otherwise from continuing with the said acts of trespass.

The Appellant, as defendant in her statement of defence also counter-claimed as follows:
(i) A declaration that the defendant is entitled to a grant of statutory or alternatively customary right of occupancy to a piece or parcel of land measuring 324.573 square metres situate lying and being at No. 28 Matanmi, Igbobi Odi Olowo Mushin, Lagos State and particularly described, shown and delineated on Plan No. OGEK 591/ 84 dated 10th day of March 1984 drawn by Chief B. Akin Ogunbiyi Licensed Surveyor having an area of 324.573 square metres.
(ii) The sum of N1,000,000.00 (One Million Naira) general damages for trespass committed by the claimant to the said land of the defendant.
(iii) An order of perpetual injunction restraining the claimants, his servants, agents and privies from committing any further acts of trespass to the said land of the

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defendant.

The matter went to trial and the Lower Court at the end granted the reliefs of the Respondent and dismissed the counter claim thus this appeal.

The Appellant’s brief settled by Oluwasanya Odunayo Ayeni is dated 23rd December, 2013 filed on the same date and a reply brief dated and filed on the 27th February, 2014. The Respondent’s brief settled by C. A. Chanbang is dated 10th February, 2014 and filed on the 11th February 2014. It raised a preliminary objection and still responded to the main appeal. It shall be necessary to resolve the preliminary objection incorporated in the Respondent’s brief, seen at pages 9-16 of the Respondent’s brief. The Appellant reacted to it in its Appellant’s Reply brief. It is necessary to consider it before proceeding to the main appeal if it fails or for whatever part is saved.

The objection challenges the competence of the appeal and the grounds are as follows:
“a. The grounds of appeal contained in the Notice of Appeal are grounds of mixed law and fact for which the leave of the Court ought to have been obtained before the filing of the Notice of Appeal.
b. The grounds of appeal questioned the

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exercise of discretion of the learned trial Judge in granting a declaration in favour of the Respondent.
c. The issue of discretion of the Court is based on the evaluation of material facts placed before the Court.
d. The issue of discretion of the Court is one of mixed law and fact and the Appellant requires the leave of the Court to file the Notice of Appeal.
e. Relevant materials particularly the exhibits tendered at the trial were deliberately not copied into the record of appeal prepared by the Appellant which is contrary to the provisions of Order 8 Rule 13 of the Court of Appeal Rules 2011.
f. The Appellant failed and refused to copy the exhibits into the records and have taking no step to ensure that the case file at the Lower Court with the exhibits are transmitted to the Court of Appeal.
g. The record of appeals is not certified as required by the provision of Sections 104 of the Evidence Act 2011 as the appellant did not pay the legal fees for certification and there is no date for the certification.
h. The appellant was granted leave to amend the notice of appeal on the 10th day of December 2012 by the Court of Appeal

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