Chief Joshua Daramola & Anor V. MR. Samuel Akinwumi Arinduboye (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. :(Delivering the Leading Judgment)

On 29th April, 2013 the High Court of Ondo State holden at Akure in suit No AK/70/2009 delivered Judgment in favour of the Respondent who was the plaintiff in that Court against the Appellants who were Defendants. The lower Court dismissed the counterclaim of the Appellants.

?The claim of the Respondent against the Appellants was for the following:

1. A declaration that the plaintiff is the person entitled to the customary right of occupancy to the Piece or parcel of land lying being and situate at Sasere Lane Ayede Ogbese in Akure North Local Government Area of Ondo State bounded on the first side by Mr. Ogogo’s land on the second side by Mr. Akinjo’s land; 3rd side by Kinjo Hospital and forth side by Mr. Ajayi’s land.
2. The sum of Five Hundred Thousand Naira as damages for trespass committed by the defendants on the land in dispute by deliberately building on the land despite an order of Court not to do that.
3. Perpetual injunction restraining the defendants agents, privies and whosoever claiming through them from further act of trespass to the land.

The Appellants’ counterclaim was for the following:

a) An order that the 2nd defendant is entitled to right of occupancy on its two (2) plots of land lying and situate at Sasere lane Ayede Ogbese on the 1st side by Kinyo Hospital, on the 3rd side is Mr. Adedire land and on the 4th side is Osodi land that it is wrong for the plaintiff who alleged that he bought a plot of land to claim to be given two (2) plots of land.

b) Perpetual injunction restraining the plaintiff his agents, privies and whosoever claiming through them from further acts of trespass to the Apostolic Church land and One Million Naira only as general damages for constant litigations against the 1st Defendant who is not a necessary party to this suit and who has been facing series of litigations in the hand of the plaintiff.

The facts of the case are brief. According to the Respondent, the pw1 bought the land in dispute in 1976. The land in dispute was one of six plots he bought. Pw1 sold the plot in dispute to Pw5. Pw5 sold to the Respondent in 1997 and gave him an affidavit Exhibit PR4.

?Since 1997 when the Respondent bought the land nobody challenged him until 2002 when

the 2nd appellant trespassed into it.

The case of the Appellants according to Dw1 is that the 2nd appellant bought the land on 24th December 1998 from Chief Fadiji now late and tendered Exhibits D1 and D2 dated 23rd march 2007 and 3rd February 2005 respectively.

Upon entering judgment on 29th April, 2013 in favour of the Respondent and dismissing the counterclaim of the Appellants, the Appellants on 10th June 2013 filed a notice of appeal challenging it. The notice of appeal contains four grounds of appeal. The Appellants presented the following issues for determination:

1. Whether the Respondent having pleaded customary grant his root of title coupled with Ogbese Custom to transfer valid title had discharged that burden on him before considering various sales and possession.
2. Whether Exhibit PR6 on mere suspicion never subjected to legal proof is valid to assign reliability and title and has; appellants not pleaded acts why Ajayi of Kinyo Hospital came to refund (N15,000) to late Fadiji.
3. Whether with the Pleadings and evidence before the Court the High Court had not awarded gratuitous award to the Respondent, rejected admissible

survey plan of the Appellants and admitted of the Appellants and admitted unpleaded issues.

The Respondent on his part formulated the following issues for determination:

1. Whether the learned trial judge, given the state of the pleadings and the evidence adduced before the Court came to the right decision in finding for the respondent at the lower Court
2. Whether any miscarriage of justice was occasioned by the decision of the lower Court in declaring title in favour of the Respondent.

I must admit that I find it difficult to understand the issues formulated by the Appellants. I also find issue 2 formulated by the Respondent unnecessary. In my view the appeal can be determined on issue 1 formulated by the Respondent. However, it will not be out of place to add an issue to issue 1 formulated by the Respondent which is: Whether on the state of the pleadings and evidence led before the Court, the Court rightly dismissed the counterclaim of the Appellants. The appeal will therefore be determined on the following two issues: