The Executive Governor, Ekiti State & Ors V. Chief F. A. Abe & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 9/1/2014 by the High Court of Ekiti State (hereafter simply referred to as the Lower Court) presided over by Honourable Justice A.L. Ogunmoye (hereafter simply referred to as the learned trial Judge). In its judgment, the Lower Court, having found the Plaintiffs (now Respondents) to have proved their case granted them all the reliefs (save one) they sought against the Defendants (now Appellants).

The Respondents herein initiated the instant case by a writ of summons dated 2/6/2009 and which issued on the same date. The writ of summons was accompanied by a statement of claim also dated 2/6/2009. The reliefs the Respondents claimed against the Appellants as endorsed on the writ of summons are as follows: –

1. A Declaration that the plaintiffs (Ejigbo Community) is the bonafide, rightful and beneficial owner of all the parcel of land purportedly acquired by defendants for the construction of Fayose Market, Ado Ekiti.
2. A Declaration that the purported acquisition of

plaintiffs land by defendant (sic) is illegal, unconstitutional null and void.

3. A Declaration that the defendant (sic) trespassed to and encroached on plaintiffs land described above.
4. An Order of Court setting aside and reversing the purported acquisition of plaintiffs land by defendants.
5. An Order of Court directing the defendants, their agents, servants, privies and assigns to vacate the plaintiffs? land and remove whatever thing(s) they have brought to or erected thereon.
6. A sum of N200 million being general damages for trespass committed by the defendants, their agents, privies and assigns on the plaintiffs? land.

The reliefs set out above were re-produced word for word in Paragraph 42 of the statement of claim (save that it was Ijigbo Community that was stated in relief (a)).

The case which the Respondents set up in their 42 Paragraph statement of claim (and in which the word Ejigbo Community and Ijigbo Community (were used interchangeably and hereafter will simply be referred to as the community), is to the effect that

the community has always been the owner of the vast area of land abutting Ajilosun Street from Odo-Otu, Ijiku and Ajilosun Ijigbo, Ado-Ekiti. That the community acquired title to the land from their great, great ancestors from time immemorial and has remained in actual and active possession of the land exercising various acts of possession thereon. The community land includes the land shown in the two survey plans the particulars of which were set out in the statement of claim; and parcels or pieces of the land that had been given out to various educational and religious bodies or institutions, free of charge were catalogued.

The Respondents further specifically averred that the community only retained ownership of the area of land covered by the survey plans (supra) and that the area includes the Ijiku strip or portion which is on the right hand side on the way to Akure and which was being used for farming purposes with economic crops like cocoa, palm trees, coconut trees, orange, kola nut etc. thereon. Again, the Respondents equally averred that the community remained in active, actual and uncontroverted possession of the remaining strip of land between

Omolaja and Ajilosun stream on the right hand side of the road on the way to Akure until 2003 when the said parcel of land was purportedly acquired by the Government of Ekiti State without prior notice. It was in that year that the Respondents noticed some men trespassing on the remaining Ijiku strip of the community land. That when the men were challenged, they claimed to be officials of the Ministry of Land and further informed the Respondents that Ekiti State Government had acquired the land for the construction of an ultra-modern lock up shops market and they also advised the Respondents to seek clarification on the matter from the Ministry of Lands.

The Respondents disclosed the many unsuccessful efforts they made to have compensation paid to the community in respect of its land and pleaded their reliance on various letters in the proof of the efforts in this regard. Having stated that the estimated plots of land under the purported acquisition is over 300 and that the current value of a plot of land within the vicinity of the purported acquisition is between N2 to N4 million, the Respondents also averred to the effect: (i) that it was the most viable

part of the community land that was purportedly acquired; (ii) that the Ekiti State Government never gave nor served the community the required notice prior to the acquisition and has not done so till date; and (iii) that after the purported acquisition, the Ekiti State Government till date has not paid any compensation. It is also the case of the Respondents to the effect that though the land was purportedly acquired for ?overriding public interest?, the shops in ?Fayose market? built thereon have been sold to individuals by Ekiti State Government and those not sold have been shared among top government functionaries.

The Respondents further alleged that the Ekiti State Government in the same manner forcefully acquired the present site of the Oceanic Bank from the community for overriding public purpose only to later sell same to the said Bank. The Respondents gave notice that they will at the trial contend: (i) that the purported acquisition of the community land for the construction of the popular Fayose market is illegal, unlawful, unconstitutional, null and void ab initio; and (ii) that the purported acquisition is not ?for

required overriding public interest? but ?for overriding something else?.

The Appellants denied the case of the Respondents and their entitlement to the reliefs they seek against them in the amended statement of defence they filed in the case. The case the Appellants set up in the amended statement of defence in relation to Paragraphs 12 – 17 of the statement of claim is to the effect: (i) that the land shown in the survey plans pleaded by the Respondents is not the land in dispute and that the survey plans have nothing to do with the case; (ii) that the parcels of land purportedly given by the community to Churches, Schools and other organisations are not in dispute in the case and have nothing to do with the case; (iii) that the Respondents had no farm or economic crops such as cocoa, palm trees, coconut trees, orange, kola nut, etc. on reclaimed Ajilosun flood plain acquired by the Ekiti State Government for public purposes; and (iv) that the Respondents could not have planted cocoa or any other economic crop inside the Ajilosun stream. In reacting to Paragraphs 18 – 30 of the statement of claim, the Appellants narrated the pitiful