Mrs. Olukemi Akande Bello V. Segun Ohikhueme & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Oyo State High Court, Ibadan Judicial Division delivered on 27th February, 2007 in suit No. 1/2148/2004.

The Appellant was the Plaintiff before the High Court and in an action dated and filed on 24/02/2004, she claimed for a declaratory and injunctive reliefs in the following terms:-

“(a) Declaration that the plaintiff is entitled to a Certificate of Statutory Right of Occupancy in respect of the piece of land situate, lying and being at Oyekunle Layout, Ibadan, Alegongo Area, in the Lagelu Local Government Area of Oyo State.

(b) Perpetual injunction restraining the Defendants either by themselves, their agents, privies and/or any other person whomsoever from further trespassing on the land in dispute.”

The Defendants/Respondents entered appearance on 16/04/04 in a memorandum of appearance filed by Messrs. Dele Awe and Co. of N6A/387, Oyo Road, Opposite Ajibade Bus Stop, Coca-Cola, Area, Ibadan. Since then, the Respondents did not take any further serious steps in the matter. The case continued to suffer series of adjournments.

On the 12/10/2006, the learned trial judge saw no further reasons for any adjournment. He ordered for the matter to proceed to trial. The Appellant opened her case. She gave oral evidence in support of her amended statement of claim dated and filed on 6/04/2004. At the end of her evidence on pages 39 to 40 of the record of appeal, learned counsel Mr. Alabi, proceeded to address the court at the end of which the learned trial judge adjourned the matter to 30/10/2006 for judgment.

While judgment was being awaited, the Appellant filed a motion on notice on 25/10/2006 for leave to amend her amended statement of claim. The application was heard and granted on 30/10/2006, in the absence of the Respondents. Thereafter, the learned trial judge proceeded to deliver his judgment. He granted the 2 reliefs in terms.

In an application dated 30/11/2006, the Respondents prayed for an order to set aside the default judgment delivered on 30/10/2006. This application was later withdrawn and struck out. Meanwhile, the judgment of 30/10/2006 was somehow enforced, more particularly for the 1st and 2nd Respondents to give up and yield possession of the subject matter premises to the Appellant.

Another motion dated 16/01/2007 was filed on 17/07/2007, for an order setting aside the writ possession dated 30/10/06, which was used to take over possession the properties of the 1st and 2nd Respondents and also for an order setting aside the execution of judgment dated 29/12/2006. This application was adjourned to 30/01/2007 for hearing.

However, on 23/01/2007, the Respondents filed another application for an order setting aside the judgment delivered on 30/10/06. The application to set aside writ of possession and execution of judgment was, for reasons not very clear, brought forward for hearing on 26/01/2007 instead of the earlier advertised date of 30/01/2007.

In a ruling delivered on the same 26/01/2007, the learned trial judge granted the application in terms and proceeded to set aside and declare the writ of possession as invalid as well as the execution of judgment made pursuant thereto.

Issues were duly joined on the application for an order to set aside judgment and it was fully argued on 7/2/2007 and ruling adjourned to 27/02/2007. In its ruling, the Lower Court set aside its earlier judgment

delivered on 30/10/2006. The Appellant was dissatisfied with the order setting aside the judgment delivered in her favour, she appealed to this Court in a notice of appeal dated 13/03/2007, but filed on 16/04/2007. The notice of appeal incorporates 5 grounds of appeal. They are as follows: