Mrs. Kehinde Ogunkoya V. Mr. Sunday George (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appeal is against the decision of the Oyo State High Court sitting at Ibadan presided over by O. I. Aiki, J, delivered on the 31st day of March, 2008.

The Respondent as plaintiff instituted this action in a representative capacity against the Appellant’s husband who was the original defendant in the trial court. The appellant was later substituted for her husband upon his demise pursuant to an order of court.

The Respondent by his Amended statement of claim dated and filed on the 28th day of December, 2006, claimed against the Appellant as follows:

“(a) DECLARATION that for and by virtue of Certificate of Statutory Right of Occupancy dated 6th of May, 1987 registered as No.1 at Page 12749 granted by the Governor of Oyo State in favour of the Defendant, the Defendant in the said document is only entitled to the area or parcel of land measuring approximately 1792.002 sq.mts, and that any attempt by the Defendant to use this document to encroach, seize, or trespass on the Plaintiff’s land covered by a registered Deed of conveyance dated 7th of November, 1977 and registered as No. 2 at page 2 in Volume 2205 of the Ibadan Lands Registry and measuring approximately 6626.87 4 Sq.mts shall be null and void of no effect.

(b) DECLARATION that the Defendant having purchased his land from one Mr. Olufemi Bamishe whose land was registered as No.32 at Page 32 in Volume 1832 of the Register of Deeds Ibadan with beacons Nos. WB 7908, WB 7967, WB7965, WB7964 AND WB7963 can only take possession of this same land and cannot validly erect a structure inside the land covered by a Registered Deed of Conveyance registered as No.2 at Page 2 in Volume 2205 of Land Registry, Ibadan with Beacon AM1253, AM5562, AM1254, AM1255, CC4537, CC4538, CC4539, CE2236 and CE2235, measuring approximately an area of 6626.874 Sq.mts.

(c)AN ORDER of Court directing the Defendant to take possession of the land measuring 1792.002 Sq.mts as covered by the Certificate of Occupancy Reg. 1/1/2749 of 6/5/87 whether inside or outside land registered as No. 2/2/2205 of Ibadan Lands Registry.

(d) AN ORDER OF Perpetual Injunction restraining the Defendant from further trespassing, seizing, disturbing or harassing the Plaintiff family under the pre of using a certificate of occupancy covering 1792.002 Sq.mts to seize the Plaintiff’s family entire land measuring 6626.874 Sq.mts and registered as No. 2/2/2205 of Lands Registry, Ibadan.”

The Appellant in her defence raised the defence of res judicata as well as other defences. The plaintiff called two witnesses while the defendant was the sole defence witness. At the close of trial, in the trial judge’s judgment, claims (a), (b), and (d) were granted while(c) was refused. It is against the decision that this appeal was lodged.

The background facts as made out by the Appellant is that on 8th September, 1975, the Appellant’s husband bought a plot of land from one Olufemi Bamishe measuring 2143.22m2 and the sale was evidenced by a sale agreement dated 8th September, 1975.

On 6th May, 1987, the Governor of Oyo State issued a certificate of statutory Right of Occupancy in respect of the said plot of land in favour of the Appellant’s husband.

The Appellant’s husband thereafter commenced the construction of a building on the said plot, in the same 1987 shortly after the commencement of the building, the Respondent’s elder brother, Pa Idowu George started to lay claim over the said plot of land and a dispute arose between the Appellant’s husband and the said Respondent’s elder brother, Pa Idowu George to the knowledge of the Respondent and his family members.

In 1990 Pa Idowu George initiated an action at the Oyo State High Court, Ibadan Judicial Division where he sought orders of the court to nullify the sale Agreement and the Certificate of Statutory Right of Occupancy granting the Appellant interest in the land in dispute.

In 1992, the trial court ruled that the action be dismissed on the ground that the suit lacked any cause of action. It was contended that there was no appeal against the Ruling.