-
"Arising from the facts as found herein, I hold that the defendant's vendors had nothing to sell when they purportedly resold to Bamigbala Amao the area of land vested in Lawani before the sale to Bamigbala Amao. The plaintiff has established better title to the land in dispute.
-
I find as a fact that after purchase of the land in dispute the plaintiff retained possession but did nothing on the land hence occupiers of neighbouring premises used it as rubbish dump! The land was cleared and fenced up by the defendant but since a trespasser cannot have possession in law; the possession remained throughout in the plaintiffs; whom I hold had no materials or foundation on the land.
He also found that the defendant was a trespasser, awarded general damages of N1,000.00 against him and granted to the plaintiffs perpetual injunction against him.
The defendant appealed to the Court of Appeal against the said judgment. Thereafter, by a motion dated 24th of December, 1987, he moved the court for another stay of execution of the said judgment pending appeal. In paragraphs 8, 9, 10, 11 and 12 of the affidavit in support of the motion, he deposed to the following facts:
-
8
"That I have on the land a building which I occupy with my family and other relations
-
9
That I am still indebted to several friends and finance houses for the cost of the building.
-
10
That my solicitor informed me and I verily believe that there are good and substantial points of law in my favour, for consideration of the Court of Appeal.
-
11
That if the order restraining me from going into the property in dispute either by myself agent and or servant is executed, it will adversely affect my reputation as a legal practitioner and also expose me and my family to an untold hardship.
-
12
That the structure of the property which is now duplex building may be altered if the defendant/applicant and his family are ejected."
In opposition to the motion the second plaintiff filed a counter-affidavit sworn to on the 19th of January, 1988. In paragraphs 6, 8, 9, and 10 of the said counter-affidavit he deposed as follows:
-
6
"That as to paragraph 9 of the said affidavit, the defendant/applicant during the pendency of this suit surreptitiously con¬structed the said building fully appreciative of the risk he was taking.
-
8
That as to the issue of untold hardship which will befall the defendant/Applicant's family deposed to in paragraph 11 of the said affidavit, the defendant/applicant as a Senior Legal Practi¬tioner should have known better not to purport to take "posses¬sion" of the land in dispute and during the pendency of the suit.
-
9
That throughout this dispute-cum-action, the defendant/applicant has conducted himself in a cavalier manner; disregarding the police advice that both parties should not go to the said land to avoid a breach of the peace and whilst the police conducted their investigation."
The trial Judge granted the appellant's application for a stay of proceedings on the grounds that:-
-
a
the appellant raised a 'recondite' point of law in his ground of appeal, and
-
b
the fact that the appellant and his family lived in one wing of the twin duplex building constitutes special circumstance in that if the appellant and his family were to be evictee, they would have to look for better alternative accommodation and if he succeeded on appeal they would have to move back.
The respondents appealed to the Court of Appeal against the grant of stay of execution by the trial court. The Court of Appeal allowed the appeal and set aside the order staying the execution of the trial court's judgment.
