PA Tayo Ojo V. Chief Jerome Akinsanoye (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State sitting at Ondo delivered on the 15th day of April, 2011 granting all the claims of the plaintiff (respondent herein) and dismissing the counter claim of the defendants (appellants herein). The facts that gave rise to this appeal are as follows:

The case of the respondent was that the land in dispute was purchased from the Baipie Family of the Appellants. The purchase was said to have been evidenced in writing as contained in Exhibit “A” titled “Sale of Land Agreement and Purchase Receipt dated 17th October, 1977”.

However, early in year 2009, the appellants were alleged to have come to the original plaintiff to demand for an additional sum of N500,000 claiming that the purchase money for the land in year 1977 was too small. When the original plaintiff could not meet their demand; the defendants/appellants wrote a letter dated 9th July, 2009 (Exhibit “B”) to him demanding that he should vacate the land. The reply of the original plaintiff dated 16th July, 2009 was tendered as Exhibit “C”. The appellants allegedly went back to the said land and started different forms of activities which amounted to trespass.

However, prior to the delivery of judgment in the case, the original plaintiff passed away and his name was substituted only on the Writ of Summons by PW1, Chief Jerome Akinsanoye, who had earlier in his evidence described himself as the surveyor/draughtsman employed by the deceased plaintiff to demarcate the said land for him into plots. The substituted plaintiff is the respondent in this appeal.

The case of the appellants is that the land in dispute belongs to their family known as Baipie. The 1st appellant has been the Head of the Family since the demise of their father Baipie Ojo. And it was their contention that the land in dispute was not sold to the original plaintiff – Chief C. O. Olakanye.

According to the appellants the 1st appellant as Head of Family was not aware of the execution of Exhibit “A’ not to talk of appending his signature on same or receiving any purchase money from the original plaintiff, he alleged that it was when the appellants got to the land sometimes in 2009 that they found some persons who claimed to have purchased portions of the land from the original plaintiff, trespassing on the land. On being challenged, the original plaintiff – deceased Chief C. O. Olakanye claimed to have purchased the land from the late Baipie Bayo Ojo, a member of their family.

The appellant also contended that the land in dispute had once been a subject of customary arbitration before the Oloka Family, who were the original owners that granted the land in dispute to the appellants.

The original plaintiff initially filed a Writ of Summons and a 29 paragraph statement of claim dated 28th October, 2009 (pages 3 – 6 of the records). The defendants/appellants filed their Memorandum of Appearance dated 2nd November, 2009 on 20th January 2010 and also filed their statement of defence and counter claim dated 29th January, 2010 on the 3rd day of February, 2010.

The original plaintiff filed his reply to statement of defence and defence to counter-claim dated 15th March, 2010 on same day. Thereafter the original plaintiff filed his amended statement of claim dated 13th January, 2011 (amended on 12th day of January, 2011).

Prior to delivery of judgment on the 11th of April, 2011, the court was informed of the death of the original plaintiff, Chief C. O. Olakanye who died on the 2nd March, 2011.

As a result, the judgment was adjourned to the 15th day of April to enable the respondent regularize the writ of summons earlier filed. The writ of summons was subsequently amended on the order of court to reflect the substituted name of Chief Jerome Akinsanoye as the new plaintiff, who is now the respondent.

In judgment bearing the name of the new plaintiff, the trial court granted the reliefs claimed by the late plaintiff while dismissing the counter-claim of the defendants/appellants, (see pages 91 – 138 of the record).

The appellants, being dissatisfied with the decision of the trial court filed a notice of appeal on the 19th day of April, 2011 containing four (4) grounds of appeal. Later the appellants with leave of court filed an amended notice of appeal containing nine (9) grounds of appeal dated 8th February, 2012. The appellant formulated three issues for determination in this appeal based on the said amended notice of appeal filed on the 8th day of February, 2012. These are: