BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Ogunwusi v. Elusoji
  • 237
  • 2004-12-13
  • ₦ 200
  • Buy Now

Ogunwusi v. Elusoji

PRINCE T. A. OGUNWUSI

PRINCE A. A. ADEMILUYI

S. O. ADEYEFA

J. A. BALOGUN

JOSHUA AWOREFA

( On behalf of themselves representing other members of Ojaja Community of Ojaja Quarters, Moore, Ile Ife)

V

MADAM SIMBIATU ELUSOJI

COURT OF APPEAL

( IBADAN DIVISION )

MURITALA AREMU OKUNOLA JCA ( Presided )

VICTOR AIMEPOMO OYELEYE OMAGE JCA

OLUFUNLOLA OYELOLA ADEKEYE JCA ( Read the Lead Judgment )

CA/I/81/2002

THURSDAY, 1ST MAY, 2003

APPEAL - Findings of fact of trial court - When appellate court will interfere with

COURT - Appeal Court - When will interfere with findings of fact of trial court

COURT - Customary court - Incompetence of to entertain and give a binding judgment on issue of title to land

COURT - Injunctive claim by plaintiff against a party claiming a right to title to same piece of land - Duty of court

DOCUMENT - Clear and unambiguous words in - How interpreted

ESTOPPEL - Issue estoppel- Conditions for application of INJUNCTION - Claim for by plaintiff against a party claiming a right to title to the same land - Duty on court

INTERPRETATION - Document with clear and unambiguous contents How interpreted

JUDGMENT AND ORDERS - Judgment of court - Effect of on parties and their privies

LAND LAW - Customary court - Incompetence of to adjudicate and give binding judgment on issues of title to land

LAND LAW - Injunction - Claim for by plaintiff against a party claiming a right to title of the same land - Duty on court

LAND LAW - Possession - Where two parties claim possessory right over the same parcel of land - To whom possession will be ascribed

LAND LAW - Right of way - Party claiming - Duty on to claim right over the land comprised in the way

PLANNING LAW - Town Planning Authority - Power of to create new road - How exercised

TORT - Nuisance - Meaning of

TORT - Nuisance and trespass - Similarity between

TORT - Right to access road - Claimants therefore - What must prove

Issues:

1.            Whether the learned trial Judge was right in law to hold that the reliefs claimed amount to trespass and injunction thereby raised issue of title on which he based his judgment and not nuisance and injunction which did not raise issue of title.

2.            Whether the learned trial Judge was right in law to hold that the decision of a court of competent jurisdiction in suit No. 27/83, between the appellants and the respondent’s predecessors in title which declared the land in dispute as an access road did not constitute issue estoppel binding on the respondent who was a privy of the defendants in the said suit on the ground that the trial Judge in the suit did not consider

issue of title in the judgment as the deed of conveyance was not tendered before them, when the judgment was not subject of appeal before him.

3.            Whether the learned trial Judge had wrongly interpreted the contents of Ife Area Town Planning Authority letter tendered as exhibit P7 which the learned trial Judge interpreted as mere advice and that it established nothing.

4.            Whether the appellants were entitled to judgment having regard to both the appellants’ and respondent’s evidence and defence to the reliefs claimed in the lower court.

Facts:

Plaintiffs and defendant are residents of Ojaja Community, IIe-Ife, an area behind the Nigeria Police Barracks, Moore IIe-Ife. The only outlet to the major road from the community is the land in dispute between the parties which is between the Nigeria Police Barracks and the defendant’s building facing Moore Road. The plaintiffs’ witnesses and the father of the defendant, Ganiyu Elusoji, now deceased, bought their respective lands in the area from a common vendor Chief Odofin Fadiora. The residents of the area have been using the land in dispute as access road for upwards of sixty years. The defendant’s father commenced building operation on his plot of land in 1972, in the process he encroached on the access road. He was challenged and by way of settlement, an area 10 feet wide was retained as access road on the intervention of Nigeria Town Planning Authority and Ife Local Government, confirmed by the letter Ref. No. T.P. 1164/115/ of 14/8/ 1974 , TDV 38/499 of 14/7/76 and 147, Vol.4/141 of 21/7/1976 exhibits C, D and E. After the demise of the defendant’s father, her uncle and mother took over the control of Ganiyu Elusoji’s building. Sometimes in 1982, Rafatu Elusoji blocked the access road by building a shed and a block wall fence across it. She claimed the vacant land as the property of her late husband. This led to the closure of the access road. In 1983, an action suit No. 27/83, was filed against her at the Ife Customary Court. The plaintiffs claimed that the land in dispute was an access road thus inviting the court to make a pronouncement on this issue. The court pronounced in favour of the plaintiffs by declaring that the portion of the land was an access road. When Rafatu Elusoji died, the defendant moved into the premises to inherit the place in 1995. She embarked on the construction of a septic tank, a soakaway pit right on the road in dispute, rebuilt her mother’s shed in front of the road and built a back-house which protruded into part of the road in dispute. All that was left was a small space which only pedestrians and small vehicles can use in defiance of the court judgment. At the trial, the defendant relied on the conveyance and the building plan granted to her father in respect of the entire land he purchased which included the portion used as access road now subject of dispute. The deed of conveyance was admitted in evidence as exhibit DI. At the conclusion of trial, the learned trial Judge dismissed the claims of the plaintiffs.

Dissatisfied, the plaintiffs have appealed to the Court of Appeal.