Ezekiel Apata V. James Olanlokun & Anor (2013)

LAWGLOBAL HUB Lead Judgment Report

STANLEY SHENKO ALAGOA, J.S.C.

This is an appeal against the judgment of the Court of Appeal Ibadan Division (hereinafter referred to as the lower Court or the Court below) delivered on the 2nd of December, 2003 affirming the judgment of the High Court Ilesha, Osun State delivered on the 30th of June, 1992. At the said High Court, the present Respondents as Plaintiffs for themselves and on behalf of the Ogidan Family took out a Writ of Summons against the present Appellant as Defendant claiming the following:

i. Declaration that the Plaintiffs are entitled to the customary right of occupancy to that piece or parcel of land situate, lying and being at Imoo near Itagunmodi bounded on the West by the Motor Park, on the South by John Fagbewesa’s farm” on the East by the Kuku Hill and on the North by Joseph Ola’s farm.

ii. Forfeiture of the customary tenancy of the Defendant on the said land.

iii. 16 cwt of dried cocoa beans at 1 cwt per year from 1976 or its cash equivalent.

iv. Injunction restraining the defendant, his servants, agents and those claiming through him from entering the land in dispute.

The Plaintiffs filed a 30 page Statement of Claim contained at pages 5 – 8 of the Records while the Defendant filed a 21 page Statement of Defence contained at pages 8 – 11 of the Records.

The Plaintiffs’ reply to the Statement of Defence is contained at Pages 11 & 12 of the Records. Pleadings were thereafter exchanged by and between the parties after which the case proceeded to be heard, and in its considered judgment, the trial Court found in favour of the Plaintiffs substantially granting the reliefs sought.

Aggrieved, the Defendant appealed against the judgment to the Court below which dismissed the appeal and affirmed the judgment of the trial Court. This is a further appeal by the Appellant against that judgment.

This followed the grant by the Court below of a motion on notice dated the 10th February, 2004 and brought pursuant to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 for “leave to appeal to the Supreme Court against the decision of this Honourable Court delivered on the 2nd of December, 2003 in Suit No. CA/I/159/94 other than grounds of law alone that is mixed law and fact.”

The Notice of Appeal consists of 13 (thirteen grounds) and the said Grounds are reproduced hereunder devoid of particulars:-

Grounds of Appeal:

1. That the Lower Court erred in law in dismissing the Appellant’s appeal without properly considering the Appellant’s complaints particularly that the Respondents did not prove their root of title to entitle them for a grant of declaration of title and payment of Ishakole this has led to gross miscarriage of justice.
2. The Lower court erred in law in holding that the Respondent had proved his root of title to the land in dispute on the evidence it was able to gather from Exhibit P1 which was not evidence before the lower Court and part of 2nd Respondent’s evidence quoted by the lower Court as amounting to prove of root of title without properly considering and analyse the Appellant’s submissions in his brief of argument advanced in paragraphs 6.16 to 6.38 on pages 7-10 of the Appellant’s brief of argument. This has led to gross miscarriage of justice.
3. The lower court erred in law in holding that the identity of the land in dispute was certain, when establishment of identity of land is never based on presumption as the lower court has held in this case. This has led the Court to gross miscarriage of justice.
4. The Learned Justices of the Court of Appeal erred in law in holding that the Appellant’s ancestor do pay Ishakole, when the Court held, as follows:-

“AND in the Customary Court proceedings in P1 and P2 that there is abundant evidence that the Appellant’s father paid Ishakole to the Respondents’ father privies in title to the land.”

When the proceedings and the judgments in the said Exhibits P1 and P2 were not subject of appeal before it and it was so treated in order to defeat the Appellant’s case without considering the Appellant’s argument advanced in Issue No. 4 of the Appellant’s Brief. This has led to gross miscarriage of justice.