Ondo State Development & Property Corporation V. Chief Akin Atere (The Baale Of Adofure) & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

Endorsed on the writ of summons dated, and filed on 24th April 2007 and reproduced in paragraph 34 of the statement of claim as amended pursuant to an order granted on 11/7/2008 curiously filed on 12/7/2007 before it was dated 13/7/2007 are the claims of plaintiffs (now Respondents) against the defendant now appellant:

“A declaration that the plaintiffs are the owners of the ADOFURE Community land based on traditional history of the land and uninterrupted long possession and are entitled to continuous peaceable, quiet and uninterrupted possession and enjoyment of the unacquired Area of Adofure Community land bounded as follows.

A. On first side by the (OSDPC Estate) Ondo-Government acquired area of land of Adofure Land.

B. On second side bounded by Idanre Road/Adofure land.

C. On the third side bounded by Adofure Community land sharing boundary with Idanre

D. On fourth side bounded by Olomosola Isafinrin land Akure which is more particularly described on the three survey plans of Adofure Araromi Community plan No. AB/OD/85/304A to C dated 11th of March 1985 drawn by I. A. Babalola, licensed surveyor of No. 59 Oba Adesida Road, Akure.

2. A declaration that the Area acquired by the Ondo State Government from the Plaintiffs’ Land for the use of the Defendant is approximately 419.28 Hectares as shown in survey plan ODSHC E002 dated 8th January, 1981 and delineated by pillars No. PBE 12261 to PBE 12374 on the said survey plan prepared by S.F Aladenuyi licensed surveyor of the defendant as approved by Surveyor General of Ondo State and covered by Certificate of Occupancy registered on 6th March 1985 as No. 12 at page 12 in volume 346 of the land registry in Akure and that the Defendant cannot exceed the said area or allocate any of the plaintiff’s land not covered by the said acquisition.
3. Ten Million Naira (10,000,000, 00) General Damages against Defendant for encroaching and trespassing into the unacquired part of the plaintiffs’ land described in (1) above.
4. An order of perpetual injunction restraining Defendant, its agents, privies assigns servants and allotees from further trespass into the said unacquired part of the plaintiffs’ land located along ldanre Road, Akure.
5. An order of this Court invalidating the Defendant’s allotment, allocation, sale or alienation of plots of land from the said unacquired part of the plaintiffs’ land.” (See page 17 of the records).

Upon service on it of the writ of summons and the original Statement of Claim the appellant (as defendant) filed a memorandum of conditional appearance on 15/5/2007. Consistent with its Conditional appearance the appellant filed a motion on 16/11/2007 for an order:

“Dismissing the plaintiffs’ suit for want of jurisdiction as the suit is incompetent and statute barred by virtue of the provisions of the Public Officers Protection Law Cap 103 Laws of Ondo State of Nigeria 1978 and Section 27 of the Ondo State Development and Property Corporation Law the said suit having been brought outside the period allowed by the said statutes.” The motion was supported by a 25 paragraph affidavit deposed to by an employee of the appellant’s legal department on 16/11/2007.

The Respondents in the application filed a five paragraph counter-affidavit in opposition to the motion on 19/11/2007.

The learned trial Judge Olayanju J. of the High Court of Justice, Akure Judicial Division took the submissions of the learned counsel for the parties on 10/1/2008 and adjourned to 26/2/2008 for ruling on the application.

In the ruling delivered on schedule the learned trial Judge made extensive review of the submission of learned Counsel for the parties in the light of the relevant statutes and came to the following conclusion:

“In view of this and all that I have highlighted above I consider the application of the defendant dated the 16th day of November 2007 to be unmeritorious and same is hereby dismissed.” (See page 92 of the records).

Aggrieved by the ruling the appellant filed a notice containing five grounds of appeal on 10th March 2008.