Dopemu Taiwo Adeyeri & Ors V. Akinbode Okobi & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

This is an appeal from the Court of Appeal, Ibadan. The appellants were the plaintiffs before the High Court of Ogun State holden at Ilaro in a suit filed on 13/5/76. When the appeal came up for hearing on 24/3/97, parties were absent and not represented by counsel. Briefs having been filed, the appeal was taken as argued by them. See O. 6 r. 8(b) of the Supreme Court Rules.

On 15/7/76, the 4th and 5th defendants were joined by the order of the court following an application made to the Court by the plaintiffs. The plaintiffs applied to amend their writ of summons and statement of claim. The application was granted and the amended writ of summons and statement of claim were filed as ordered. The statement of defence was also amended with the leave of the court. The plaintiffs’ claim against the defendants as finally settled in the amended writ of summons is as follows:

“1. A declaration that the plaintiffs are entitled to apply for a customary right of occupancy to all that piece of land situate, lying and being at Aferiku village near Idi-Iroko, Egbado Division, Ogun State.

2. Injunction to restrain the defendants, their agents or servants from trespassing, alienating or otherwise injuriously dealing with the said parcel of land.
3. Forfeiture or whatever interest the 4th and 5th defendants have or might inherited (sic) on the land in dispute on grounds of misconduct.”

The plaintiffs’ case is that the fathers of the 4th and 5th defendants were put on the land in dispute by one of the ancestors of the plaintiffs by name, Adeyeri to build houses and live in them on payment of tribute every three years during the period of Oro festival. The plaintiffs are claiming title through their ancestor Adebo whom they said first settled on the land. They also asserted that the 1st, 2nd and 3rd defendants have nothing to do with the land and that the 4th and the 5th defendants are their customary tenants.

The 4th and 5th defendants denied that they are tenants of the plaintiffs. The defendants gave evidence of their traditional history and acts of ownership. They claimed the land through their ancestor called Babalogun whom they said was the first to settle on the land and that they, the 1st, 2nd and 3rd defendants were the people who allowed the 4th and 5th defendants to be on the land and that they are their customary tenants.

The 1st-3rd defendants also asserted that the 4th and 5th defendants are descendants of one Aferiku, a tenant of Babalogun, whom they claimed first settled on Idologun land and established his fann on Aferiku farm. Aferiku farm is the land in dispute. The defendants further averred that Aferiku begat Sosefun who begat the fathers of the 4th and 5th defendants. But the plaintiffs maintained that this Aferiku was one of the children of Adebo, their own ancestor who first settled on the land in dispute.

The High Court of Ogun State sitting at Ilaro (as per Delano, J. as he then was) granted all the reliefs sought by the plaintiffs. The defendants appealed to the Court of Appeal which allowed their appeal.

The plaintiffs, not satisfied with the said decision of the Court of Appeal, have appealed to this court. Counsel for the plaintiffs/appellants, in his brief, identified the following five issues for determination in the appeal:-

“1. Whether or not the Court of Appeal can suo motu dismiss/strike out an incompetent appeal

2. Whether the learned justices of the Court of Appeal were right in holding that the appellants are not entitled to the declaration sought, when the trial judge who had the opportunity of seeing and listening to the witnesses accepted and preferred the traditional evidence of the appellants to those of the respondents
3. Whether the learned justices of the Court of Appeal were right to hold that because the land held by P.W. 4, P.W. 5, and P.W. 6 are not located on the land in dispute, (though part of the plaintiffs’ land), therefore the trial court was in grave error to hold that payment of tributes by these tenants (on the Aferiku’s land) amounted to evidence of acts of ownership exercised by the appellants
4. Whether from the facts and the pleadings, the learned Justices of the Court of Appeal were right to hold that the learned trial Judge relied and decided the case on issues not raised in the pleadings.
5. Whether or not the denial of title of their overlords by the 4th and 5th defendants who are customary tenants of the plaintiffs amount to, a misconduct which attracts the penalty of forfeiture”

The respondents formulated the following issues in their brief:-

“1. Whether the defendants/respondents appeal from the High Court to the Court of Appeal was incompetent.

2. Whether the plaintiffs/appellants have not waived their right to say that the defendants/respondents appeal before the Court of Appeal was incompetent and by reason of this waiver, whether the plaintiffs/appellants are not estopped from saying that there was no competent appeal before the Court of Appeal
3. Whether or not upon a calm view, a thorough and proper appraisal, consideration and evaluation of the totality and quality of the evidence offered by both sides, the Court of Appeal was not justified in reversing the judgment of the court of trial”

Arguing issue I, the learned appellants counsel contended that the general ground or omnibus ground of appeal contained in the notice of appeal filed by the defendants/appellants on 1/7/80 against the judgment of the learned trial judge is incompetent because it is not a ground applicable in civil appeals.

He submitted that there is a clear distinction between the allegation that: