Solomon Ojutola & Anor V. Alhaji Saliu Folorunso Kuranga (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal stems from a judgment of the High court of Ogun State sitting in the Ota ludicial Division, Ota (the court below) which declared the respondent to be entitled to a Statutory Right of Occupancy over 2-1/2, plots of land located at Arola/Ijoko Lemode Village via Itoki in Ifo Local Government Area of Ogun state.

The court below also awarded N200,000 general damages for trespass to the disputed area of land against the appellants in favour of the respondent together with a perpetual injunction restraining the appellants and their agents, privies and assigns from committing further acts of trespass on the disputed plots of land.

In outline, the evidence disclosed that the respondent bought six plots of land measuring one acre from one Abraham Olayanju and was issued purchase receipt in Exhibit E. He took possession of the land. In the course of time the respondent built a house and a mosque on part of the land.

After the death of his vendor, some members of Dada Edu Oyekan family and Ajayi family together with Akingbola family pressured him at different points in time to re-purchase the land from them which he did evidenced by Exhibits A, C, D1, D2 and H. That appellants trespassed on 2-1/2 plots of the land by fencing it in February, 2005. The said fence enclosed the foundation of a building and some blocks belonging to the respondent.

The appellants’ case was that the 2nd appellant bought the disputed land from the 1st appellant’s family. The 2nd appellant fenced the disputed plots of land. He also erected a small structure on it. The dispute once went to court on the behest of the 1st appellant. But it was withdrawn upon the respondent’s request for amicable settlement of the dispute. The bid for out of court settlement failed Respondent decided to sue in the Present action.

The court below believed the respondent’s case. It rejected the appellants version of disputed ownership of the land. It entered judgment against the appellants on 14.1.09. They filed a joint notice of appeal containing eight grounds of appeal against the said judgment.

In a brief of argument dated and filed on 22.5.09, the appellants developed four issues for determination thus-

“3.2 The first issue is whether the trial court was right in entering judgment for the respondent having regard to the pleadings and evidence before the court.

3.3 The second issue is whether the Respondent/Plaintiff at the lower court established with clarity the identity of the land in dispute.

3.4 The third issue is whether the Respondent established any of the five ways of proving ownership of land.

3.5 The fourth issue is whether the learned trial court was right in awarding the Respondent/Plaintiff the sum of N200,000.00 general damages given the conflicting claim in the Writ of Summons and amended Statement of claim.”

The appellants’ arguments on the first issue linked to the omnibus ground 1 of the notice of appeal complained that the court did not properly evaluate the evidence, in that it did not take into account the two parallel claims in the writ of summons and the amended statement of claim relating to declaration of title to the 21/2 plots of land stated in the Writ of Summons as situate at Arola/Ijoko Lemode Village via Itoki Ifo Local Government area which was radical departure from the amended statement of claim which averred that the 2-1/2 plots of land is situate at Ijoko Lemode village of Ifo Local Government contrary to the cases of Keshinro v. Bakare (1967) 1 ALL NLR 280, Enigbokan v. American International Insurance Company Limited (1994) 4 NWLR (pt.348) 1 enjoining the court to strike out such an action; alternatively, the appellants argued that the documents of title of the respondent in Exhibits A, B, C together with Exhibits F and L (the survey plans) relate to Ajayi family land at Arola, Itoki, “a stone throw from Ijoko Lemode,” whilst the evidence of PW1, DW1 and Exhibit M established that the disputed land is different with the piece of land occupied by the 2nd appellant, therefore the court below was wrong to ignore the evidence on the issues joined by the parties vide Irhabor v. Ogaimien (1999) 6 SCNJ 16 at 25, Ogunyade v. Oluyemi (2007) 31 NSCQR 360.

The arguments on the second issue linked to grounds 2, 3, 4 and 5 of the notice of appeal turned on the identity of the disputed piece of land, in that the amended statement of claim stated that the land in dispute is located at Arola/Ijoko Lemode village via Itoki in Ifo Local Government, whereas Exhibit E stated that it is situate at Ijoko road via Ope-Ilu; while Exhibits F1, G1 and G2 located it at Ijoko Lemode village in Idi-Obi area ; or Ijoko Lemode as stated in Exhibits C, D1 and D2, or at Arola via Itoki as described in Exhibit A; or at Ijoko Lemode near Itoki village as described in Exhibit L; or the evidence of the PW1 and PW2 that it is situate at Arola as stated in Exhibits A and B; or the evidence of the PW3 that it is situate at a place originally known as Igbo Arola or Arola village alias Idi obi via Ijoko Lemode and Itoki ; or the PW5’s evidence that it is situate at Ijoko Lemode, showing the jumbled evidence on the identity of the land in dispute amounted to lack of proof by the respondent of the certainty, precision and accuracy of the area of land in dispute contrary to the cases of Dada v. Dosunmu (2006) 27 NSCQR 485, Adelusola v. Akinde (2004) 18 NSCQR 371, at 387, Ogun v. Akinyelu (2004) 20 NSCQR 302 at 321 – 322, Odunze v. Nwosu (2007) 31 NSCQR 1, Iordye v. Ihyambe (2000) 4 NSCQR 209 at 215, Babalola v. Aladeiona (2001) 5 NSCQR (Pt.11) 1007 at 1029, Orunengimo v. Egbe (2007) 31 NSCQR 220 at 229, Ojiako v. Ewuru (1995) 12 SCNJ 79 at 92 and Adelusola v. Akande (2004) 18 NSCQR (Pt.1) 371 at 390.