Thomas Eniyan Olumesan Vs Ayodele Ogundepo (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the decision of the Court of Appeal, Ibadan Division dated 9th day of March, 1993 dismissing the appellant’s appeal in a dispute concerning title to land situate at Ibadan.

The respondent, as plaintiff, had in the Ibadan Judicial Division of the High Court of Justice, Oyo State instituted an action against the defendant, who is now the appellant, claiming as follows:-

“1. The plaintiff’s claim against the defendant is for the sum of N10,000.00 (Ten thousand Naira) being damages for trespass when the defendant unlawfully entered the land in the possession of the plaintiff situate at Lagos – Ijebu Road, near Niger West, Challenge Area, Ibadan sometime in 1987 which trespass is still continuing.

2. Perpetual injunction restraining the defendant, his servants or agents from entering the land in dispute or from committing further acts of trespass thereon.”

The defendant, in his Statement of Defence, counter-claimed against the plaintiff as follows:-

“(i) Declaration of Titleship/Ownership of the land Verged RED on Survey Plan No. RADS/OY/651/89 drawn by A.A. Adeyemi, Licensed Surveyor, and Survey Plan NO.ISO/OY/121/88 drawn by F.U. Iyawe, Licensed Surveyor, both survey plans covering the SAME LAND (that is the LAND-IN-DISPUTE).

(ii) Court’s Confirmation Order of the Grant of the Certificate of occupancy, dated 25/8/88 and Registered as an Instrument No. 47, Page 47, Volume 2869 in the Land Registry at Ibadan, to which was attached survey plan No. ISO/OY/121/88 drawn by EU. Iyawe, Licensed Surveyor, the defendant having been in effective prior possession before the grant.

(iii) A perpetual Injunction restraining the plaintiff from ever going unto the land or laying any claim unto the land.”

At the subsequent trial, both parties testified on their own behalf and called witnesses. The learned trial Judge, Adekola, J. (as he then was) in a reserved judgment at the conclusion of trial on the 18th day of July, 1990 found for the plaintiff holding that he had established a better title to the land in dispute than the defendant. Consequently, he awarded to the plaintiff against the defendant the sum of N2,000.00 being general damages for trespass. He also granted perpetual injunction against the defendant as claimed. The defendant’s counter-claim was dismissed in its entirety.

Being dissatisfied with the said judgment of the trial court, the defendant who hereinafter will be referred to as the appellant lodged an appeal against this decision of the Court of Appeal on the 20th day of July, 1990. Conditions of appeal were given on the 16th of August, 1990 and the appellant promptly complied with and perfected the said conditions imposed on him on the 24th day of August, 1990.

The appellant had originally filed a five ground notice of appeal against the said decision of the High Court. In his brief of argument which was duly filed on the 14th March, 1991, the appellant indicated that he would before the hearing of the appeal seek the leave of court to amend his notice of appeal and proffer arguments in respect of seven additional grounds of appeal, the particulars of which were fully set out. He had proposed to raise arguments at the trial in connection with the said additional grounds of appeal along with the five original grounds of appeal already filed. He then proceeded to present arguments in his brief on the six issues formulated by him as touching on both the original and the additional grounds of appeal.

The respondent, for his own part, adopted the six issues set out in the appellant’s brief for the determination of the court in the appeal and fully replied to them in his respondent’s brief of argument. The appeal, in the mean time, was fixed for the 9th March, 1993 for hearing.

On the 5th March, 1993, an application was duly filed by the appellant to regularise his position by seeking for leave to amend his Notice of Appeal in terms indicated in his brief of argument, to deem his amended notice of appeal which had then been filed as properly filed and served and for leave to file an amended brief of argument.

The relevant paragraphs of the affidavit in support of this application which was sworn to by one Iyadunni Isiaka, Administrative Secretary of Emmanuel Chambers, 80, Fajuyi Road, Ibadan deposed as follows:-