Ramonu Atolagbe V. Korede Olayemi Shorun (1985)

LawGlobal-Hub Lead Judgment Report

O.COKER

On the 2nd April, 1981, the Court of Appeal, Lagos Division, set aside the judgment of Oshodi J., of the Lagos State High Court, delivered on the 11th November, 1977, the relevant portion of which reads:-

“Having regard to the evidence before me, I am satisfied that while it is true that the plaintiff and the defendant are tenants of Ojora Chieftaincy family their respective interests relate to separate and distinct plots of land. They do not relate to the same plot of land. The defendant is the family’s tenant in respect of the plot of land at No. 104, Ezeagwu Street, Ajegunle measuring 50′ x 100′ on which he is now erecting a building. On the other hand the plaintiff is also the family’s tenant in respect of another piece of land at 118, Ezeagwu Street Ajegunle measuring 50′ x 80′.

I accept and believe the evidence of the Defendant’s first witness ALHAJI RASAQ OJORA the Supervisor of Ojora Family in the area where the two plots are situated. I find his evidence to be more impressive than that of the two witnesses of the family who gave evidence for the plaintiff.

I do not place any reliance on the two plans produced by the parties, Exhibit “A”, the survey plan produced by the Plaintiff is a copy of the original plan. It was said to have been prepared in 1965 but it was not countersigned by the Surveyor-General in accordance with the law at the material time. On the other hand, Exhibit “F”, the plan produced by the defendant was not pleaded and I have therefore decided to ignore it even though it was admitted in evidence without any objection.

The receipts produced by the parties themselves show that the Plaintiff’s plot is different from that of the Defendant.

I am satisfied that the Defendant did not go on the Plaintiff’s land. Rather, he is building on the plot of land which he got from the Ojora family.

In the result, I hold that the plaintiff has failed to establish his claims and the action is dismissed.”

The Court of Appeal, in allowing the appeal of the Plaintiff in a unanimous judgment delivered by Kutugi, J.C.A., stated after carefully considering the issue posed by the pleadings, and I quote:

“From the above, it is quite clear that the learned trial judge was in error in admitting the evidence of other plots of land not being the land in dispute or claimed. And having admitted the evidence erroneously, he should have ignored it in his judgment.”

The Court of Appeal then went on to find that:-

“The learned trial judge failed to evaluate all these evidence because of the view he erroneously took that the appellant was claiming a different land from that of the respondent. But in such circumstances, this Court is entitled to evaluate that evidence which I have done.

(See Omoregbe v: Edo (1971) 1 All N.L.R. 282)

I am therefore satisfied that in the light of the evidence adduced in the court below by the parties, the appellant had proved his claim to warrant judgment being entered in his favour for damages for trespass and an injunction. I am equally of the view that the learned trial judge was in error in dismissing the appellant’s claim as he did. The appeal therefore succeeds and it is allowed. The judgment of the learned trial judge (ashodi J.) including order to costs is accordingly set aside, and in its place I order as follows: