Simon Nwagu V. Elder Rufus Fadipe (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, Akure Judicial Division delivered on 22/4/2008 in favour of the plaintiff (respondent herein).

By his writ of summons dated 28/4/04 the plaintiff sought the following reliefs against the defendant:

1. A declaration that the plaintiff is entitled to statutory right of occupancy of a piece or parcel of land measuring about 23′ x 20′ at No, 113, Oba Adesida Road, Akure on which the defendant has trespassed being the property of all surviving members of Late Pa Fafowora’s family.
2. N500,000.00 damages against the defendant for trespass to the said land.
3. Perpetual injunction restraining the defendant by himself, his servants, agents or whomsoever from entering the said land.

The facts that gave rise to the case are as follows: The plaintiff’s case was that his grand father, Pa Fafowora was a Deji’s messenger during his life time. Because of his relationship with the Deji he was given the land in dispute to build a house. When his sister Madam Fayiobi lost her husband, he invited her to live with him. Madam Fayiobi came with her son Ige Ogini. After Pa Fafowora’s death, Madam Fayiobi continued to live there until her death leaving her son Ige Ogini residing there. Ige Ogini continued to live in the house when he went blind.

It was the plaintiff’s case that Pa Fafowora’s family permitted Ige Ogini to continue using the room he occupied during his mother’s lifetime on compassionate grounds. He used or let out the room until he died in 1999. After his death his son, Sunday Ige, continued to use the room. He later sold it to the defendant in 2002. It was the plaintiff’s contention that Sunday Ige had no right to sell the room to the defendant who had subsequently built an additional shop beside the room originally occupied by Madam Fayiobi. He alleged that the defendant was a trespasser.

On the other hand the defendant contends that the Deji gave the land in dispute to Pa Fafowora and Madam Fayiobi jointly, when it was still a virgin forest. That the two of them jointly developed it and both of them lived there until Pa Fafowora died. After the death of Pa Fafowora, Madam Fayiobi built another house at the back of the one she jointly built with her brother. In 1956 an action was instituted against her for possession. The native court declared her the owner. According to the defendant, the State Government acquired the thatched-roof house jointly built by Pa Fafowora and Madam Fayiobi for the construction of Oba Adesida Road in 1976. It was accordingly demolished. According to the defendant Madam Fayiobi moved to her house at the back of the demolished house and gave some rooms to the children of her late brother Pa Fafowora. The children later converted their rooms to shops. It was the defendant’s contention that Ige Ogini, Madam Fayiobi’s son inherited her property including the land in dispute upon her death and that Sunday Ige, Ige Ogini’s son inherited the property when Ige Ogini died and later sold it to the defendant.

At the court below, the parties filed and exchanged pleadings, led evidence and tendered exhibits. After considering the evidence and the written addresses of learned counsel the learned trial Judge entered judgment in the plaintiffs favour as follows:

“The effect of all these is that the sale of the two shops by Sunday to the defendant was a sham. The vendor had no power to dispose of the shops he not being the owner. …

On the issue of damages the plaintiff has not made out a case, Rather it is evidence that the defendant, prior to the sale was a tenant on the property. He was there legitimately and he was also in possession before his holding metamorphosed into ownership through the sham sale. The defendant in the circumstances cannot be held to be a trespasser. In the final analysis the plaintiff’s action succeeds. He is therefore entitled to the statutory right of occupancy of a piece or parcel of land measuring about 24′ x 20′ at No. 113 Oba Adesida Road, Akure, being the property of all surviving members of Late Pa Fafowora’s family.”

The appellant who was the defendant at the court below was dissatisfied with the judgment and filed a notice of appeal dated 2/5/08 containing nine grounds of appeal. The parties herein duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief is dated and filed on 6/1/09. It was deemed properly filed on 4/2/2010. The appellant also filed a Reply brief dated and filed on 27/4/2011. At the hearing of the appeal on 8/2/2012, C.S.O. TITILOYE ESQ., learned counsel for the appellant adopted and relied on both briefs and urged the court to allow the appeal. The Respondent’s undated brief was filed on 21/3/2011. S.L. ONIPEDE ESQ., learned counsel for the respondent adopted and relied on the said brief and urged the court to dismiss the appeal.

The appellant formulated seven issues from the nine grounds of appeal as follows:

1. Whether 1st relief of the plaintiff’s statement of claim before the court was proved in evidence to entitled the plaintiff to judgment of the court.
2. Whether Relief 1 of the statement of claim granted by the trial court is enforceable against the defendant,
3. Whether the trial court can suo moto amend relief 1 of the statement of claim in his judgment or grant a relief not sought or canvass by the plaintiff throughout the trial of the case.
4. Whether the plaintiff did not fail totally after the court dismissal of Relief 2 and of the statement of claim.
5. Whether the trial judge breached principle of fair hearing in his consideration of written address of the defendants counsel.
6. Whether the trial judge can by his judgment amend or set aside the judgment of the Akure Native Court upon which the defendant hinged his claim of doctrine of latches & acquiescence.
7. Whether the court properly directed himself to the uncontroverted facts before the court as addressed by the Defendant during the trial of the case.

The respondent formulated two issues for determination:

1. Whether or not the Plaintiff/Respondent discharged the burden of proof bestowed on him to entitle him to his claims in view of the evidence he led and adduced before the lower court.
2. Considering the success of the plaintiff/respondent in winning this case at the court below, should he not have been entitled to award of damages even if in the general form at least.

Having examined the issues formulated by both parties, I am of the view that the issues formulated by the appellant adequately address the issues in contention in this appeal. They are however rather prolix and may be condensed into 4 issues thus:

1, Whether Relief 1 of the plaintiff’s statement of claim was competent so as to warrant the award thereof in his favour in the terms granted by the learned trial Judge and whether the plaintiff’s claim ought to have failed in its entirety upon the dismissal of Relief 2 of his statement of claim.