Alhaji Mufutau Motunwase Vs. Isaiah Sorungbe & Anor (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

In this Suit which emanated from the High Court of Ogun State, the Plaintiffs/Respondents claimed against the Defendant/Appellant as follows:

“(1) Declaration of title according to Native Law and Custom to ALL THAT piece and parcel of land situate lying and being at ALALUKU COMPOUND AFRICAN CHURCH STREET TOTORO AGO-OWU, Abeokuta, Ogun State

(2) N500 damages for trespass committed by the defendant on the said land

(3) Injunction to restrain the defendant, his servants, agents and assigns from putting up any structure or building on the said land.”

Pleadings were ordered and duly filed. At the end of the trial in which both parties gave evidence and called witnesses, Somolu, J. gave judgment in favour of the plaintiffs/respondents allowing their claim in its entirety. An appeal to the Court of Appeal (Omo, Omololu-Thomas and Onu, JJCA) was dismissed on 24th June, 1985. The appellant has now appealed to this Court.

It can thus be seen that this appeal is in fact an appeal against concurrent judgments of two lower courts. It is already trite that this Court will not interfere with such judgments unless it can be shown that there has been a substantial error in law or procedure occasioning a miscarriage of justice. If it is still necessary to support this proposition, See recent decisions of this court in In re Mogaji (1986) 1 N.W.L.R. part 19, 759, 772; Nnajifor v. Ukonu (1986) 4 N.W.L.R. (part 36) 505. Besides, as regards the concurrent findings of fact by the two lower courts, this Court would have to be shown exceptional circumstances before it can interfere. The appellant herein was facing an uphill task, but the appeal was certainly not such as could be dealt with summarily. Indeed, but for the manner in which this appeal was framed and prosecuted, as I shall show hereunder, it may have pulled a surprise.

To start, however, with the pleadings, the respondents in their amended Statement of Claim relied on paragraphs 2, 4, 6, 7,8, 11 and 11A in which they averred as follows:-

“2. The plaintiffs are executing this action for themselves and on behalf of Akiwobi family

4. The original owner of the land in dispute was one Akiwobi who acquired the same in accordance with Yoruba Native Law and Custom. Akiwobi emigrated from Erunmu homestead during the Inter-Tribal wars to acquire the land by settlement ….”
5. Successive generations of the plaintiffs’ family have built and lived on the land in dispute together with the adjoining land. Among the plaintiffs family who have built houses adjoining the

land in dispute in Alaluku compound are Chief J. A. Adebiyi, Shotunde, Awanatu Bodunrin, Ajala’s building all shown on the plan attached to the Statement of Claim.

7. About 1955, the Egba Native Authority approached the Olowu for permission to build a public lavatory on the land in dispute. The Olowu summoned a meeting of the plaintiffs’ family and sought their consent for the public lavatory. The plaintiffs’ family gave their consent and the public lavatory was built on the land in dispute.
8. Some years later, about early 1971, the defendants, by themselves, their agents, servants and assigns, broke down the public lavatory and started to dig the land in dispute preparatory to building operations.
9. The defendant is a member of Omotunwase family whose compound starting from Tiamiyu’s house forms boundary with the Plaintiffs’ family compound. A fence wall separated Tiamiyu’s house from the plaintiffs’ compound but the Defendant broke down the fence wall in order to jump on the land in dispute.

11a. The plaintiffs’ ancestor built his ‘Isona’ art house on the land in dispute and erected in front of it bamboo poles in rows up to where Chief Adebiyi’s house now stands. The poles grew into bamboo trees after his death and the trees were being used by the plaintiffs’ family until they were cleared by the family for buildings. Those on the land in dispute were cleared by the council to give way for the public latrine.”

The defendant in paragraphs 1, 2, 7, 11, 15 of his Statement of Defence averred as follows:-

“1. The defendant is not in a position to deny or admit paragraphs 1, 2, and 7 of the plaintiffs’ Statement of Claim and put the plaintiff to the strictest proof thereof.

2. The defendant denies paragraphs 4, 5, 6, 7, 8, 9, 10, 13, and 15 of the plaintiffs’ Statement of Claim and ask for strict proof of same from the plaintiffs.
3. The defendant avers that the land in dispute originally belonged to one Omotunwasc who acquired same in accordance with Yoruba Native Law and Custom. Omotunwase was a great Owu Prince who migrated from Owu Homestead after the Owu Homestead was sacked following the Owu War and he settled on the land in dispute in 1834.
4. Successive generations of Omotunwase family have built and lived on the land of which the land in dispute forms a part.
5. With regard to paragraph 7 of the Plaintiffs’ Statement of Claim, it was the defendant’s family who gave permission to the Egba Native Authority to build the Lavatory on the land in dispute after the Olowu had sent Akogun of Owu, Olosi of Owu and Bolarin of Owu to the defendants’ family to ask for the permission to build the lavatory.”

These then were the matters on which hath parties joined issue. In his evaluation of the evidence led by the parties, and the findings he made thereon. It was not always quite clear where the learned trial Judge was heading. It is not surprising that the Court of Appeal charged him with equivocating before arriving at his decision. Indeed from some of his findings, it was surprising that his decision was not different from what it was. It would be useful to refer to these findings to appreciate the point being made.