Tunde Odugbose V. Francis Ade Aina (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

Before the Ogun State High Court, Ijebu-Ode Judicial Division, the Respondent who was the Plaintiff, prayed at paragraph 26 of his 2nd Amended Statement of Claim dated and filed the 4/8/2009 for the following reliefs against the Appellant:

26. WHEREOF THE CLAIMANT hereby claims jointly and severally against the defendants as follows:-

(a) DECLARATION that the claimant is entitled to be granted statutory right of occupancy in respect of the parcel of land at Eyindi along Ijebu/Ijesha Road, Ago-Iwoye which land is verged RED on Survey Plans Numbers YSG/478 A and B dated 6th July, 1993 drawn and signed by Surveyor YEMI OKULAJA.

(b) N100,000:00 being special and general damages for the trespass committed by the Defendant when on the 7th day of August 2001, the defendant with his labourer entered claimant’s parcel of land at Ijebu/Ijesha Road, Ago-Iwoye, cut clown the claimant’s properties i.e. cassava, pineapples and plantains and also damaged wall fence on the land without the consent of the claimant.

The Respondent (Plaintiff) also claimed for special damages as pleaded at paragraph 27 of the said 2nd Amended Statement of Claim. I find it pertinent to point out that the Respondent sought for the joinder of one Olaitan Adeite as the 2nd defendant, and which order for the joinder was made on the 15/2/2005. The Statement of Claim was accordingly ordered to be amended so as to reflect the joinder. The order for amendment was not complied with and proceedings in the matter continued till the 4/8/09 when the name of the said 2nd defendant was reflected on the 2nd Amended Statement of Claim.

The Respondent having failed to effect the joinder and the consequent amendment within the time stipulated by Order 26 Rule 4 of the Ogun State High Court (Civil Procedure) Rules, 1987 applicable to the action at the time the order was made, the order for joinder of Olaitan Adeite was deemed to have abated, and consequently, the name of the said Olaitan Adeite was struck out of the action as a defendant. This suit was therefore heard and determined against the Appellant on record alone.

Now, the case of the Respondent as Plaintiff before the trial court is that he had bought a total of six plots of land at Ijebu/Ijesha Road, Ago-Iwoye from the Appellant’s family known as the Eyindi family in 1976. That the land was bought in two lots of four (4) and two (2) plots respectively. He also stated that the land was surveyed by the defendant’s family surveyor who ascertained the land to be made up of a total of six (6) plots and a purchase receipt was issued to him (Respondent).

It is also the case of the Respondent that when he paid the purchase price, he was put into possession, whereof he exercised various acts of ownership on the land such as the planting of crops like cassava, pineapple and other crops. That he applied for and was granted approval of a building plan for a house to be constructed on the land, and also surveyed the land in 1993 after he had marked the boundaries of the land by erecting concrete blocks at each corner of the land.

It is also the Respondent’s case that on the 7th day of August, 2001 he met the Appellant with some labourers on the land sold to him, cutting down and destroying the cassava, pineapple and plantain he had planted on the land. That the Appellant also destroyed the wall fence he had erected round the land. According to the Respondent, he then reported the incident to the police who arrested and charged the Appellant to the Magistrate’s court for conspiracy, and willful and unlawful damage to property. At the trial, the Respondent tendered the purchase receipt dated 18/5/1976, the two survey plans of the parcels of land, the Approved Building Plan etc, which were admitted in evidence as Exhibits A, B, C, D, E1-E9 and F respectively. The Respondent testified as the PW1 through whom the exhibits were tendered, but called no other witness.

The Appellant, who was Defendant at the trial court, testified as the DW1. His case is that of denial of the Claims. It is therefore his case that, the original owner of the land is his ancestor called Adeosun Eyiri who had inherited the land from his own father called Akingbade, the first Oba Ebuneawe of Ago Iwoye. That his (Appellant’s) father was the grandson of Adeosun Eyiri and that he inherited the land from his father, George Odugbose. He however admitted that his family (Eyindi family) had indeed sold six plots of land to the Respondent, but contended that the six plots of land now claimed by the Respondent are not the plots sold by his family to the Respondent. He also contended that the land claimed by the Respondent in the survey Plans (Exhibits B and C) is about fourteen and half plots (14 1/2) and therefore far more than the number of plots sold to the Respondent.

The Appellant further contended that the Respondent had instituted the instant case because he had been asked by the Eyindi family to vacate the land he now claims and which had not been sold to him, and which land claimed is in excess of the six plots sold to him. He denied that he destroyed any crops planted by the Respondent nor any wall fence claimed to have been constructed or erected by the Respondent. He also admitted that the Respondent had challenged him on the land and had him arrested by the police. He also admitted being arraigned in court in respect of the dispute between him and the Respondent and tendered the letter of invitation he received from the police consequent upon the report made by the Respondent. The said letter is in evidence as Exhibit G. He also called one other witness who testified as DW2.

Hearing in the matter was concluded on the 6/7/2010 when the learned trial judge delivered Ruling on the Appellant’s motion to call the Surveyor-General as a referee in the matter. Subsequently, parties addressed the court and in a well considered judgment delivered on the 3rd day of March, 2011, the learned trial Judge; Olarewaju Mabekoje; J entered judgment in favour of the Respondent (plaintiff) and dismissed the Appellant’s (Defendant’s) Counter-claim.

Let me step back to state here that the Appellant had in paragraph 24 of his Amended Statement of Defence dated the 3rd day of March, 2003 and filed the same dated, Counter-claimed against the Respondent as follows:-

24. The Defendant for himself and on behalf of Adeosun/Eyiri family claims as follows:

(a) An order forfeiting the allocation of six plots of land allocated to the plaintiff by Adeosun/Eyiri family BUT with a right to recover the money deposited with Adeosun/Eyiri family.