Chief Falade Onisaodu & Anor V. Chief Asunmo Elewuju & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division given on 22 November 1999. The appellants herein were the defendants while the respondents were the plaintiffs respectively in the case. In the writ of summons before the High Court the respondents as plaintiffs claimed against the appellants as follows:

“(1) Declaration that the plaintiffs are entitled to the certificate of customary right of occupancy in respect of a piece or parcel of land situate lying and being at Ofigba Street, Akinluaduse Sawmill Ise-Ekiti;

(2) N1,000.00 being general damages for trespass which the defendants committed on the said land sometime during the year 1987 and which trespass still continues.

(3) A perpetual injunction restraining the defendants, their servants or agents from committing further acts of trespass on the said land.”

At the trial the plaintiffs called eleven witnesses and the defendants called seven witnesses in support of their respective claims. Counsel for the parties addressed the court and the learned trial Judge in a reserved judgment delivered on 19th September 1994, dismissed the claims of the plaintiffs. The plaintiffs’ appeal to the Court of Appeal was allowed. The present appeal to this court by the defendants is against that decision of the Court of Appeal.

In their brief of argument, the defendants as appellants submitted three issues for determination which read as follows:

“(1) Whether, in view of the evidence given by a witness to the appellants (DW2) under examination in chief, the seeming contradictory evidence given by him under cross-examination destroys the case of appellants especially with the evidence given by appellants and their other witnesses and bearing in mind that appellants have no counter-claim before the court.

(2) Whether it could be held that the trial court failed to evaluate properly the evidence led by it, and even if this is conceded, though not admitted, whether this is enough to destroy the defence of the appellants.

(3) Whether the decision of the lower court is reasonable and accords with the evidence led.”

For their part, the plaintiffs as respondents raised two issues for determination in this appeal. These are:

“1. Whether the Court of Appeal was right in holding that the admissions and contradictions in the appellant evidence in the court of first instance have reduced the weight of appellant’s evidence before the court and have knocked out the bottom out of the case for the appellants.

2. Whether having examined the evidence before the trial court and found that the trial court had failed to appraise the evidence properly, the Court of Appeal was right, and it was its duty to give the proper appraisal to the evidence.”

Both sets of issues are similar. I shall however determine this appeal in line with the issues raised by the respondents which I find more germane. I shall deal with the two issues together.

The claim before the trial court was for title to the piece of land in dispute, trespass and injunction. The plaintiffs in this case are members of Ofigba family in Ode Ise quarters in Ise Ekiti while the defendants are from Onisaodu family in Ise Ekiti. At the trial both sides gave traditional evidence as to how their ancestors migrated from other parts of the country to Ise Ekiti and how the families of both parties acquired land for building and farming. The issues revolve around the piece of evidence given by DW2 Chief Jacob Abiodun called by the defendants. This witness, in cross examination testified as follows: