Yaya Sammah V. Mr. Samuel Oluwole Ojo & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Ondo State presided over by Justice Oluwole Fagbe in suit Nos: AK/29/2002 delivered 31st March, 2009.

By a writ of summons and the statement of claim dated 4th February, 2002 respectively, the plaintiffs (herein the respondents) instituted an action against the defendant (herein the appellant) before the High court of Justice of Ondo State sitting at Akure and presided over by Hon. Justice Oluwole Fagbe in suit nos. AK/29/2002 for the following reliefs claimed jointly and severally by the plaintiffs against the defendants:-

i. An order of perpetual injunction restraining the defendant and or his agents, privies, assigns employees, laborers, servants, successors in title and or any person or persons whatsoever by whatever name or names or description and or descriptions claiming through the defendant from trespassing upon, encroaching on or in any way interfering with the plaintiff’s ownership and possession of a two plots of land situate, lying and being known as plots No. 17 and 18 Block J on Chief Arowosafe Ajana Asamio Layout at Ikunnu Farm Akure which plots are covered by Certificates of Occupancy Nos. 26/26/103 and 24/24/17 both at land registry Akure, both in the names of the plaintiffs respectively.

ii. An order setting aside any form of alienation whatsoever of any of the two plots described hereinabove by whomsoever to the defendant in whatever form whatsoever and for whatever reason whatsoever.

iii. A declaration that any alienation of any part of the two plots covered by the two certificates of occupancy Nos. 26/26/103 and 24/24/117 in the names of the plaintiffs to the defendant by whomsoever and for whatsoever is null and void, illegal, unlawful and unconstitutional.

iv. An order that the acts of the defendant entering the land, digging same without the consents and the authority of the plaintiffs who has been in physical possession undisturbed since 1979 amount to trespass.

v. General damages of 5 million Naira Only for the acts of continuous trespass on the land of the plaintiffs inspite of the intervention of law enforcement agents.

The parties exchanged pleadings and the case proceeded to trial. The dispute in the suit bordered on ownership of the two plots of land known as Block J, Plots 17 and 18 in Ajana Asamio Layout, Ikunnu Farm, Akure. The respondents claimed that the two plots of land belong to them and that the lands are covered by two separate Certificates of Occupancy issued in their names.

The respondents alleged that the defendant/appellant trespassed into the property without their consent, authority and knowledge and built thereon. At the conclusion of hearing and after the filing and exchange of addresses of learned counsel for either side, the learned trial Judge in a considered judgment delivered 31st March, 2009 gave judgment against the defendant. Not being satisfied with the decision, the defendant as appellant is on appeal before this court vide an Amended Notice of Appeal filed 8th July, 2011 containing seven grounds of appeal.

The appellant in compliance with the rules of this court filed the Appellant’s Brief of Argument and the Appellant’s Reply Brief of Argument both settled by OLABANJO O. AYENAKIN, ESQ. dated 5th July, 2011 and filed 8th July, 2011 and dated and filed 19th October, 2011 respectively. The respondents filed the Respondents’ Brief of Argument dated and filed 2nd September, 2011 and which brief was settled by SIR GOKE ADUROTA KSJ JP.

At the hearing of the appeal on 23rd October, 2013 OLAWOLE OTETUBI, ESQ. who appeared for the appellant pursuant to a motion by them dated 27th February, 2013 and filed 19th March, 2013 prayed the court for extension of time for the appellant/applicant to regularize its position regarding its record of appeal same having been compiled, transmitted and served out of time and that same be deemed as proper before the court.

With no objection from SIR GOKE ADUROTA who was appearing for the respondents, the record of appeal in this suit was deemed proper before the court. OLAWOLE OTETUBI, ESQ. for the appellant adopted and relied on their two briefs as their argument in the appeal and urged the court to allow the appeal and set aside the judgment of the lower court. SIR GOKE ADUROTA on his own part adopted and relied on the respondents, brief as their argument in this appeal. He urged on us to affirm the judgment of the lower court and dismiss the appeal.

The learned counsel for the appellant has formulated (7) seven issues for the determination of the appeal and the issues read: