Musa Raimi Oyewole & Ors V. Olukunmi Adedeji (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Oyo State High Court holden at Ibadan per Hon. Justice M. L Abimbola (J), delivered on the 26th day of November, 2007 against the Appellants as Defendants and in favour of the Respondent as plaintiff.

The parties shall hereafter be referred to simply as Appellants and Respondent respectively.

The Respondent in a writ of summons sought the following reliefs:

(1) A declaration that the Plaintiff are entitled to statutory right of occupancy over a piece or parcel of land situate, lying and being at Fasoro Village Ibadan, the survey plan of which was filed as paragraph 3.

(2) An order of perpetual injunction restraining the defendant, his servants and any other person claiming through him or under him from committing further acts of trespass on the said land.

(3) Further order or other reliefs.

The case of the Respondent as garnered from his pleadings are that the land in dispute was originally settled upon by his grandfather named Fasoro several years after the cessation of the intertribal wars of those days.

On the contrary, the Appellants contend that the said land in dispute was granted to their grandfather named Babalola Akano by one Farinu, a junior brother to one Madam Aina who begat their grandfather.

Briefs were filed, exchanged and amended and the suit proceeded to hearing. Judgment was entered in favour of the Respondent but without an order of injunction as claimed. (See pages 83-97 of the record).

The Appellants felt agitated with the decision of the learned trial Judge and filed a notice of appeal which was subsequently amended with the leave of this court granted on the 27th January, 2011 and filed on the 1st February, 2011.

Pursuant to the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011, the Respondents incorporated and argued in his brief of argument a Notice of Preliminary Objection. He raised four grounds of objection and argued them seriatim as follows:-

First Ground of Objection

The first ground of objection is that the Appellant filed his Appellant brief of argument out of time and contrary to the provisions of Order 12 and Part 11 Third schedule of the Rules of the Court of Appeal, 2011. The Appellant failed to pay the penalties as prescribed therein. That for this reason the Appellant’s amended brief of argument dated the 15th February, 2011 but filed on the 11th April, 2011 is without any foundation and of no moment because it is trite that no one can put something on nothing and expect it to stay. (Refers Macfoy V. UAC (1962) AC 152 @ 160; Madukolu v. Nkemdilim (1962) 1 All NLR 595 @ 597; Onwugbufor v. Okoyi (1996) 1 NWLR (Pt.424) 252 @ 292).