Chief G. O. Obatoyinbo & Anor V. Emmanuel Tobola Oshatoba & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This matter now on appeal to this Court has a chequered history. It originated in Iyara Area Court II where the title was:

“Sule Bakare-Iyamoye
vs.
(1) Samuel Oshatoba
(2) Otitonaiye Babalola – Ekinrin Adde”

After hearing evidence of both parties, the Court transferred the case to the Divisional Area Court Grade I, Kabba. The latter court too heard the evidence on both sides and, like the first court, transferred it to the Upper Area Court Lokoja for hearing and determination. The case was heard and determined by the Upper Area Court Lokoja. An appeal went to the High Court Lokoja which ordered a rehearing before the Upper Area Court, Omu-Aran. There was a hitch as a result of which the High Court directed that the case be transfered to the Upper Area Court Ilorin. As the assessor failed to show up at Ilorin, the case was again redirected to the Upper Area Court Omu-Aran which finally heard and determined it.

The Plaintiffs claimed before the trial court a declaration that the piece or parcel of land known as Onikoko/Obada/Oke-ewu/Ogbokewe lying at Omi Osoun in Iyamoye Oyi Local Government area of Kwara State belonged to his family called Tegba and an order ejecting the Defendants from the said land. The Defendants also counter-claimed for title to the said land.

Evidence was led on both sides and many exhibits including documents were tendered. The trial court inspected the land in dispute and drew a sketch-map. In a reserved judgment the Upper Area Court Omu-Aran reviewed and evaluated the evidence, ascribed credibility or otherwise to witnesses and made findings of fact mostly in favour of the Plaintiffs. It finally adjudged as follows:

“We sustain the claim of the plaintiffs for declaration of title from Odoye on Iyamoye end to Omi Osoun/Ogbokewe on Ekinrin end – the land in dispute as verged red on our sketch map. But the plaintiffs shall remain as allodial land owners of Ogbokewe/Osoun river courses where the defendants have their huge cocoa and kolanut plantation.” .

In effect the plaintiffs succeeded on title but lost on injunction.

Being dissatisfied with particular aspects of this decision, both parties appealed to the High Court holden at Omu-Aran. The appellate High Court (Adeniyi & Orilonise JJ.) allowed the Defendants main appeal, set aside the decision of the trial Upper Area Court and granted the Defendants counter-claim deeming them “grantees of a customary right of occupancy in respect of the land in dispute which has been and is being used for agricultural purposes in a non-urban area.” The Plaintiffs cross-appeal was dismissed.

The Plaintiffs were unhappy with the judgment of the appellate High Court and appealed to the Court of Appeal on the following grounds of appeal:

“1. The learned Judges of the High Court who did not see and hear the witnesses who gave evidence and who did not visit the locus in quo erred in law in setting aside the trial Upper Area Court’s decision to the effect that the plaintiffs occupied and/or effectively controlled a part of the land in dispute while the defendants occupied a part of the land in dispute.

Particulars of error-in-law

i. An appellate court who did not see and hear the witnesses and did not visit the locus in quo must not disturb findings of fact based on credibility and the visit.

ii. The High Court fell into grave error because it lumped together the entire land in dispute.