Mrs. Wuraola Omotosho & Ors V. Alhaji Rashidi Eniayenfe Ojo (2007)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This appeal is against the judgment of the High Court of Oyo State Holden at lbadan and presided over by Akinola, J which judgment was delivered on 10th November, 1999. When this appeal fell due for hearing on 11th April, 2007, only the Appellants were represented by counsel. Since briefs were filed and exchanged, the Respondent’s brief was taken as duly argued vide order 6, Rule 9(5) of the Court of Appeal Rules 2002.

The Respondent who was the plaintiff at the court below had approached the High Court for the following reliefs as contained in paragraph 28 of his statement of claim:

“1. A declaration that plaintiff is the owner of the building situate, lying being at S.4/794 Olorunsogo .Akanran Road, Ibadan having bought same legitimately from the owner sometimes in 1992.

2. Declaration that the purported sale of the building situate at S.4/794 Olorunsogo Akanran Rand, lbadan by the 4th and 5th defendants to the 1st defendant is null, void and of no effect
3. Declaration that the purported purchase of the building situate at S.4/784 (sic) S.4/794 Olorunsogo Akanran Road, Ibadan by the 1st defendant is null, void and of no effect.
4. An order granting and restoring possession of the premises known and referred to as S.4/794 Olorunsogo Akanran Road, Ibadan now locked up by the police to the plaintiff.
5. Special and General” damages jointly and severally against the defendants for their illegal and forceful entry in to the premises known as S4/794 Olorunsogo Akanran Road, Ibadan belonging to the plaintiff.

On receipt of the statement of claim, the Appellants, who were defendants, filed their statement of defence denying liability whatsoever.

It seems to me desirable at this stage to set out briefly though, the facts of this case which gave birth to (his appeal. The dispute between the parties revolves around the property known and described as S.4/794 Olorunsogo Akanran Road, Ibadan wherein both the Appellants and the Respondent agree that it belonged, originally to one Enoch Ogunsola now deceased. The Respondent and his witnesses state that before Enoch Ogunsola died, he transferred the title over the property which is six bedrooms bungalow to his wife Nasiratu who in turn before her demise sold the house to the respondent.

The appellant as defendants claimed that it was one Sunday Ogunsola, a blood relation of Enoch Ogunsola who sold the property to the 2nd Appellant who later sold it to the 5th Appellant. When the Respondent noticed that some people trespassed into that property, he reported to the police.

Police investigated the matter and thereafter charged the 2nd, 3rd and 4th Appellant to the Magistrate Court. They were however discharged and acquainted on a no case submission. Thereafter, the Respondent filed this suit at the High Court which has given birth to this appeal. Four witnesses testified for the Respondent while two testified for the Appellants.

After reviewing the evidence adduced before him and the addresses of both counsel, the learned trial judge entered judgment for the Respondent on his entire claim for damages.

Piqued by the stance of the learned trial judge in this matter, the Appellant have appealed to this court. The Appellants gave notice of appeal out, dated and filed on 14th January,2000 which contains six grounds of appeal out of six issues have been decoded by the Appellants for the determination of this appeal. The issues are as follows:-

1. Whether from the pleading and evidence adduced at the hearing, the learned trial judge properly evaluated the evidence and drew proper inferences and conclusions in granting all the reliefs claimed by the Plaintiff (now Respondent).
2. Whether the learned trial judge was right when he held that Enoch Ogunsola in his time gave his landed property subject matter of this appeal to the plaintiff/respondent.
3. Whether the learned trial judge was right when he held that Enoch Ogunsola by virtue of Exhibit A transferred his building subject matter of this appeal to Nasiratu Ogunsola.
4. Whether the learned trial judge was right when he held that the Appellant did not call evidence to establish the nature of marriage between Enoch Ogunsola and Nasiratu Ogunsola.
5. Whether the learned trial judge was correct in expunging from the record evidence of Dw1 and Dw2
6. Whether Exhibit A can convey a legal title on the Respondent under the Land Use Act No. 6 of 1978.

The relief sought by the Appellant is an order allowing this appeal and setting aside the judgment of trial court complained of.

The learned counsel for the Respondent did not formulate any issue and although he did not say so, it is presumed that he has accepted the issues as formulated by the Appellants’ counsel subject of course to the Notice of Preliminary Objection given by the Respondent.

The Respondent, on page 3 of his brief of argument gave notice of Preliminary Objection and as it is the practice in this court, I intend to clear the air on the objection so raised.

It was the contention of the learned counsel for the Respondent that Ground 2 of the Appellants’ grounds of appeal should be struck out based on the reasons that the particulars do not reliable to the ground of appeal and that Sections 21 and 22 of the Land Use Act as contained In Ground 6 of the Grounds of Appeal is a new issue. And since no leave to raise the issue has been first obtained, Ground 6 should also be held incompetent.