Babatayo Oni V. Emmanuel Olokun & Anor (1994)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

The plaintiffs by writ of summons dated 13th August, 1987 are claiming against the defendant a declaration-

“that the land situate lying and being at Ahere (Aiyegbaju) was owned originally by Olumogbe family for the use of Osu Community as Aiyeyemi market and as was not granted to defendant’s father-Aro.”

“Pleadings were filed and exchanged at statement of claim and statement of defence. Thereafter evidence were led by both the plaintiff and the defence. The learned trial Judge, Adeyemi, J:, after addresses by counsel, in a reserved judgment, found the plaintiffs’ claim successful and gave judgment in favour of the plaintiffs as per their writ of summons and paragraph 29 of their statement of claim. Paragraph 29 of the statement of claim is a mere verbatim repetition of the claim set out in the writ of summons.

The defendant was unhappy with the judgment and felt aggrieved hence the instant appeal which was brought on 4th of August, 1988 against the decision of the court below delivered on the 17th June, 1988. The notice of Appeal dated the 27th July, 1988 contained 10 grounds of appeal, the omnibus ground inclusive.

In the appellant’s brief of argument filed by the defendant the following issues were identified as calling for determination-

“1. Whether the claim of the respondents could have been regarded as a mere declaratory judgment or a declaration of title to dispossess the appellant his proprietary and equitable rights of land in dispute.

2. Whether the trial learned Judge was right in law or in Equity to have found that there was no proper grant made to the defendant’s (Appellant) father.
3. Whether the Ilesha High Court was right for failure to decide the root of title of Olumogbe from the Owa Obokun Ofokutu.
4. Whether the Ilesha High Court was not correct to hold that the respondents were guilty of “standing by” that could have called for issue “Estoppel by conduct” against the respondents.
5. Whether the respondents were caught by the provisions of Limitation Act or Law applicable in Oyo State where the declaration sought amounted to recovering and dispossessing the appellant of his bona fide landed property.
6. Whether the land in dispute on which title had been ascribed to the appellant by the Court of Appeal, Ibadan on the 3rd day of July, 1987 could be jettisoned and/or side-tracked by Ilesha High Court on the 17th day of June, 1988 and thereby entered for the respondents a declaratory judgment to dispossess the appellant of his proprietary and equitable rights of the land in dispute.
7. Whether the appellant established a better proprietary and possessory title to the land in dispute.”

On the other hand, three issues were formulated in the respondent’s brief on behalf of the plaintiffs who are hereinafter referred to as respondents. They are-

“1. Whether plaintiffs’ claim of declaration is caught by Statute of Limitation- Limitation Law Cap. 64 Laws of Oyo State of Nigeria when the plaintiffs do not claim possession.

2. Whether the equitable defence of standby by laches and acquiescence of the defendant avail the defendant and whether they were properly rejected.
3. Whether the plaintiffs/respondents proved their claim and were entitled to the declaration in respect of the land in dispute sought.”

I have studied the formulations of both parties and I am of the opinion that, in spite of the passion and emotional undertone, the appellant’s identification of issues is preferred although some of them are slanted to accommodate appellant’s emotion as well as passion.

At the hearing of the appeal, appellant adopted and relied on the amended appellant’s brief. Mrs. Ukatu adopted and relied on the amended respondents’ brief prepared by an unidentifiable character in E. Adeyeye Adelekun &Co. I think appellant’s issue 3 is the heart and marrow of the matter otherwise regarded as Jugular vein of the case. It should, therefore, be considered before any other one. In canvassing the issue which is related to grounds 4, 7, 9 and 10 of the grounds of appeal, appellant contended that the respondents have failed to prove their title to the land in dispute as they have not been able to trace and prove the root of Olumogbe to Owa Obokun Ofokutu. He submitted that the respondents’ failure to bring as their witness the Owa Obokun of Ijesha land or his emissary to prove the grant to Olumogbe is an indication that the respondents’ traditional history was fallacious, impossible to buttress and prove their root of title to the land in dispute or to any parcel of land called Apole Ahere.

In this connection, the respondents’ counsel, submitted that respondents’ claim is based on traditional evidence and evidence was adduced to that effect which was in line with their statement of claim paragraphs 5-12. He referred to evidence of 1st plaintiff page 13 lines 5-15 which evidence counsel contended was not challenged under cross-examination by the defence.

In the circumstances, the nature of the evidence led is to be examined in the light of pleadings. The relevant paragraphs of the statement of claim are paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the statement of claim which is produced immediately hereunder-

“3. The plaintiffs bring this action in representative capacity on behalf of OLUMOGBE Family of Osu.