Tosin Ajayi V. Oba John Ojomo & Ors (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A. 

The plaintiff (herein after referred to as the respondent) commenced an action against the defendants including the present appellant in the High Court of Lagos (Coram Martins J.) for the following reliefs:

1. “A declaration that (1) the acquisition and/or (2) the revocation of his right of occupancy by Lagos State Government of his land at Opebi Village, Ikeja, covered by his registered deed of conveyance dated 7th July, 1977 and registered as No. 94 page 94 volume 1635, Lagos State is a nullity in so far, as it relates to the plaintiff’s land.
2. An order for immediate possession of the land subject-matter of the plaintiff’s deed of conveyance.
3. Mesne profit in the sum of N2,000,000 per annum with effect from 1st January, 1996 until possession is yielded up”.

The 3rd defendant (hereinafter referred to as the “appellant” filed his statement of defence, while the 1st and 2nd defendants did not.

At the trial respondent called four witnesses. The appellant did not give evidence or call any witness.

On 12/11/96 the learned trial Judge entered judgment for the respondent in the terms of claims as made save for the mesne profit which was given in the sum of N100,000.00 per annum with effect from 1st January, 1986 until possession is yielded up.

The appellant’s counsel had applied on 2/8/96 for the striking out of the action on the ground that the trial court lacked jurisdiction in that:-

(a) the action is statute-barred; and

(b) the plaintiff lacked locus standi as the land was acquired in 1974 before the plaintiff had his Deed of Conveyance in 1977.

The respondent filed a notice of preliminary objection that the application was incompetent as the issue of jurisdiction was not raised in time. After argument by counsel on this issue the trial Judge on 27/9/96 in his ruling on jurisdiction sustained the objection of the respondent and held that he had jurisdiction to determine the suit as constituted. The appellant appealed against the ruling on jurisdiction on 2/10/96; filing 5 grounds of appeal. The second amended notice of appeal, dated and filed on 1/11/99 by order of this court, contained 4 grounds of appeal.

The appellant identified 4 issues for determination as follows:-

1. “Whether the learned trial Judge had jurisdiction to determine the ownership of the land in view of the Lagos State Government Notice No. 140 (Public Land Acquisition Law Chapter 113) published in Lagos State of Nigeria Gazette No.11 Vol. 71 of 16/4/74.
2. Whether the learned trial Judge was right in closing the 3rd defendant’s case on 27/9/96, the date fixed for ruling and not for hearing.
3. Whether the learned trial Judge was right in continuing with the trial of the case whilst there were pending applications relating to the pleadings before the court.
4. Whether the trial Judge properly evaluated the evidence before him”.

The respondent for his part formulated altogether three issues for determination in the two appeals against the ruling and the final judgment.

The two issues formulated for determination in the appeal against the ruling 27/9/96 are as follows:-

1. “Whether the learned trial Judge was right when he upheld the objection of the plaintiff and held that the 3rd defendant should put up his defence and at the end of his defence raise the point of law on issue of jurisdiction.
2. Whether it is open to a defendant after parties have joined issue and that the plaintiff has closed his case to allow the defendant to isolate certain issues for determination of the whole case in the circumstances of this case.

The 3rd issue formulated by the appellant for determination in the appeal against final judgment dated 12/11/96 is as follows:-

3. “Whether the learned trial Judge was right when he held that the acquisition notice is null and void in so far as it relates to the portion of the plaintiff’s land which falls within the notice of acquisition”.

On 10/5/2000 when this appeal came up before us for hearing Kemi Pinheiro who appeared for the appellant adopted the appellant’s brief filed on 2/6/98 and urged that the appeal be allowed.