Gabriel Adekunle Ogundepo & Anor. Vs Thomas Eniyan Olumesan (2011)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI. J.S.C.

The appeals herein were filed by both sides of the divide against the judgment of the Court of Appeal, Ibadan Division delivered on 9th January, 2002. Therein, the appeal was allowed and the case was remitted back to the trial High Court, Ibadan for retrial before another judge.

The original plaintiff in his statement of claim, asked for:-

“1. 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 sometimes 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’”

In paragraph 27 of the Statement of Defence and counter-claim the defendant 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. A 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) Courts confirmation Order of the Grant of the Certificate of Occupancy dated 25/8/88 and Registered as an instrument No.47 at Page 47 Vol. 2869 in the Land Registry at Ibadan to which was attached survey plan No.ISO/OY/121/88 drawn by F. U. Iyawe, Licensed Surveyor, the defendant having been in effective prior possession before the grant; and

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

The learned trial Judge, Adekola, J. (as he then was) garnered evidence adduced by the parties and their respective witnesses. He was duly addressed on some grey areas of the law; as it were. He applied the law to the facts to the best of his ability and found in favour of the plaintiff in his judgment which was delivered on 18th July, 1990. Therein, the defendant was found to be a trespasser and an award of N2,000:00 general damages was made against him. Further, an order of injunction was granted against him, his servants, agents or privies or anybody claiming through him from committing further acts of trespass on the land in dispute. All the three reliefs raised in the counter-claim were dismissed.

The defendant felt irked by the stance taken by the trial court and appealed to the court of Appeal, Ibadan Division (hereinafter referred to as “the court below”, for short). The court below heard the appeal and in the judgment handed out on 17th January, 2007, it allowed the appeal and resolved the complaint relating to evaluation of evidence in favour of the defendant/appellant thereat.

The trial court’s judgment was set aside and the case was remitted back for retrial by another judge. The above position taken by the court below precipitated appeal and the cross appeal, both filed with leave, to this court. In respect of both appeals, briefs of argument were filed by parties. When the appeal was heard on 20th September, 2011, each learned counsel adopted and relied on the briefs filed on behalf of his client.

In respect of the main appeal, the three issues couched for determination read as follows:-

“1. Whether or not the learned justices of the Court of Appeal wrongly evaluated the judgment of the learned trial judge, who had unquestionably and properly evaluated the evidence and came to a right conclusion and which wrong evaluation led to wrong interference with the findings of fact of the learned trial judge and the making of a wrong order of retrial.

2. Whether or not, on a proper consideration of the pleadings and oral evidence and on a proper interpretation of the documentary evidence and or a proper application of the correct law to all the issues raised before the Court of Appeal, the appeal of the respondent before the court below should have been dismissed and the judgment of the learned trial Judge affirmed.
3. Whether or not this is a proper case in which the Supreme Court will interfere with exercise of discretion of the Court of Appeal set aside its decision and restore the judgment of the learned trial Judge.”

On behalf of the respondent, two issues were decoded with adequate precision. They read as follows:-