CASE TITLE: OLORUNNIMBE & ANOR V. OLOBEKE (2026) LPELR-82912(CA)
JUDGMENT DATE: 23RD JANUARY, 2026
PRACTICE AREA: LAND LAW
LEAD JUDGMENT: FADAWU UMARU, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on Land Law.
FACTS:
This is an appeal against the Ogun State High Court Judgment, Sagamu Judicial Division, Per E.O. Osinuga J. (herein referred to as “the trial Court) in Suit No: HCS/86/2011 delivered on the 4th day of May, 2015.
The Appellants (and three other parties who are now deceased) instituted this action through a Writ of Summons against the Respondent at the trial Court and sought:
“(i) A sum of N5 million being damages for trespass committed by the Defendant on the Claimants’ land which trespass has since continued despite repeated warnings and cautions by the Claimants.
(ii) Interest on the judgment sum at the rate of 15% per annum from the date of judgment until the judgment is finally liquidated.”
In the course of trial, it was submitted that the law is settled that both the Court and the parties are bound by the issues joined in the pleadings, and that it is impermissible for a Court to formulate or determine issues not raised by the parties, as such findings amount to decisions on matters that go to no issue. It was contended that, in the instant case, the trial Court breached this fundamental principle on at least two occasions by making findings on matters not pleaded or canvassed by either party.
The Statement of Claim, was referred to wherein the Respondent was merely described as a resident of Orile Ijoku, Sagamu, with a building situate within the land mass of the Appellants and within the jurisdiction of the Court. It was further noted that, in the Statement of Defence, the Respondent merely denied residing at the address pleaded by the Appellants and averred that both his residence and the land in dispute were situate at Agura, Sabo, Sagamu. It was also stressed that nowhere in the pleadings or in the witness statements on oath was the Respondent described as a traditional ruler or as a party to any previous litigation that reached the Supreme Court and that the findings made by the trial Court in this regard were therefore unsupported by the pleadings or the evidence before it and were consequently perverse.
It was further observed that the trial Court stated that an order for trespass could only be made where the land allegedly trespassed upon had been properly identified by the parties. The Court was urged to juxtapose that pronouncement with the consistent position of the Appellants that the land litigated upon in the earlier suit was situate at Ijoku, notwithstanding the contention of the Respondent’s predecessor that it was situate at Agura. It was maintained that both parties had always identified the same physical parcel of land, the only divergence being the nomenclature ascribed to it. In support of this submission, documentary evidence from the earlier suit were referred to, particularly Exhibits E and F, wherein each party described the land differently, as well as Exhibits B and D, being the respective survey plans filed by both families in that earlier litigation.
It was further submitted that, having admitted that the land in dispute formed part of the land previously litigated upon, the Respondent was estopped from contending that the identity of the land was uncertain. Additionally, it was submitted that trespass cannot be committed against a party not in possession of the land.
It was also argued that, since the Appellants’ family had been in possession of the land prior to the institution of Suit No. HCS/34/86, and since the Supreme Court ultimately dismissed the claim of the Agura family, it was untenable for the Respondent, being a privy of the original plaintiffs, to contend in 2011 that the Appellants were not in possession. He maintained that the Respondent’s family failed to establish a better title and was therefore incapable of displacing the Appellants’ possession.
By virtue of the judgment of the Supreme Court contained in Exhibit A, the Appellants’ possession could only be challenged by a party able to prove a superior title. On the issue of costs, it was contended that although costs ordinarily follow the event, they must not be awarded capriciously or treated as a windfall to the successful party, but rather as reasonable compensation. It was argued that the Respondent’s application for costs was predicated solely on the number of Court appearances and the fact that there were five Claimants, without any justification for the quantum claimed.
After the close of evidence, counsel on both sides addressed the trial Court. In its judgment, the trial Court dismissed the reliefs sought by the Appellants. Dissatisfied with the decision, the Appellants filed a Notice of Appeal.
ISSUES:
The appeal was determined on the following issues:
(i) Whether the learned trial judge was right in making findings on issues not borne out by the case put forward by the parties thereby prejudicing the case of the Appellants as Claimants before the lower Court.
(ii) Whether the findings and conclusion of the learned trial Judge that the identity of the land in dispute was not proved can stand in the face of the case put forward by the parties.
(iii) Whether on the totality of the case put forward by the Appellants, the Appellants have not demonstrated their exclusive possession of the land in dispute as to entitle them to the reliefs claimed before the lower Court.
(iv) Whether the award of a total sum of N150,000.00 as cost against the Appellants by the learned trial Court is justified and not excessive given the totality of the case put forward by the parties.
DECISION/HELD:
The appeal had merit and it was allowed.
ISSUES FOR DETERMINATION:
The Court considered the merits of the application.
DECISION/HELD:
In the final analysis, the appeal was dismissed.
RATIOS:
· EVIDENCE- ORAL/DOCUMENTARY EVIDENCE: Whether documentary evidence can be used as a hanger to assess oral evidence
· JUDGMENT AND ORDER- AWARD OF COST: Principles of law as regards award of cost
· LAND LAW- SURVEY PLAN: When a survey plan will not be necessary
· LAND LAW- IDENTITY OF LAND: Position of law on identity of land in dispute vis-a-vis what parties call it
· LAND LAW- POSSESSION OF LAND: Whether a previous judgment that a party successfully defended title, trespass and injunction constitutes a strong act of possession of land
· LAND LAW- TRESPASS TO LAND: Whether possession alone is sufficient to maintain an action in trespass
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