Ademoyegun Amusan & Anor. V. Rufus Olawuni (2001)

LawGlobal-Hub Lead Judgment Report

F. TABAI, J.C.A.

In the Writ of Summons issued on the 21/10/92 at the Ife Judicial Division then of the High Court of Oyo State, the Plaintiff/Respondent, suing for himself and other children of AGOREMILEKUN, except Afolabi, claimed against the Defendants/Appellants jointly and severally as follows:-

“1. Declaration that the Plaintiffs are entitled to the grant of customary right of occupancy over and upon those three portions of palm trees, cocoa, kolanut farmlands situate lying and being at OLOWOREJU and FAKILE areas of WAKAJAIYE Town.

2. N1,000.00 being general damages suffered by the Plaintiff when the Defendants unlawfully seized and trespassed upon the palm trees, on the farms and reaping them without plaintiff’s authority or consent.
3. Injunction restraining the Defendants, their agents, servants and privies from further acts of trespass upon the farms.”

And in paragraph 52 of the Statement of Claim filed on the same day it was averred as follows:-

“Whereof the Plaintiff claims as per writ of summons.”

Apparently due to political/administrative changes affecting the situs of the properties in dispute, the case proceeded to trial under the Iwo Judicial Division of the High Court of Osun State. The trial itself involved the testimony of three witnesses for the Plaintiff, five for the defence and the address of counsel for the parties. And in the judgment on the 28/7/93 the learned trial judge A. O. Aderemi, J. granted all the reliefs endorsed in the writ of summons.

This appeal is against that judgment. In the original notice of appeal filed on the 13/10/93 4 grounds of appeal were raised. With the leave of this Court 12 additional grounds were filed. The 12th ground is the omnibus ground which was the 4th ground in the original notice of appeal. In all therefore there were 15 grounds of appeal. The parties through their counsel filed and exchanged their briefs of arguments. The amended appellants’ brief of argument prepared by Chief A. O. Fadugba was filed on the 2/7/99 while the Respondent’s brief prepared by L. Adebisi Adedeji was filed on the 28/9/99. In the Appellants’ Brief of Argument, Chief Fadugba formulated the following issues for determination:-

“1. Whether or not the Iwo High Court has jurisdiction to entertain and adjudicate over the farmlands in dispute being in non-urban town of Wakajaiye near Gbongan when there was and there is still an Aiyedade Customary Court at Wakajaiye and the neighbouring town of Gbongan the head quarters of Aiyedade Local Government Council.

2. Whether or not the lower court was right to give judgment for the Respondent when the reliefs claimed in the writ of summons were not stated in the statement of claim.
3. Whether or not the lower court was right to give judgment to the Respondent for three farmlands instead of two claimed in the writ of summons and when he did not prove his case to any of the farmlands according to law.
4. Whether or not the Respondent a distant member of Sangoseyitan family can lawfully be declared absolute owner of the three farmlands forming part of Sangoseyitan farmland in the absence of partition or absolute grant.
5. Whether or not the Respondent has established and proved his right to inherit the farmlands in dispute under Yoruba native law and custom of inheritance which he relied upon for the success of his case.
6. Which of the two parties to this appeal was entitled to judgment having regard to the weight of evidence?
7. Whether or not the Respondent proved the civil wrong of trespass to entitle him to an award of damages when he was not in possession.”

In the Respondent’s Brief of Argument Adebisi Adedeji raised the following three issues:-

“1. Whether or not the non-stating of the reliefs in the Statement of Claim was sufficient to defeat the claim of the Respondent.

2. Whether or not the lower court was right to have given judgment to the Respondent.
3. Whether or not the High Court has jurisdiction to try the case.”

Respondent’s issue 3 raises the issue of jurisdiction and is the same as appellants’ issue 1 while Respondent’s issue 1 relates to the issue of the reliefs claimed and is the same as Appellants’ issue 2. And Respondent’s issue 2 raised the general question of burden and standard of proof which is covered by Appellants’ issues 3, 4, 5, 6 and 7. I would therefore adopt the issues as formulated in the Appellants’ Brief of Argument.

With respect to issue 1 the substance of the arguments of the Appellants as contained in pages 5 and 6 of their brief is that by virtue of the provisions of section 41(a) of the Land Use Act and cases decided thereon like SADIKWU V. DALORI (1996) 4 SCNJ 209 at 217-220; OGUNSINA V. OGUNLEYE (1994) 5 NWLR (Part. 346) 625; OYEDIRAN V. EGBETOLA (1997) 5 NWLR (Part 504) 122 and OGIGIE V. OBIYAN (1997) 10 NWLR (Part 524) 179, the Iwo High Court has no jurisdiction and that the court which has jurisdiction is either the customary court at Wakajaiye or that at Gbongan.

On the 2nd issue the appellants referred to paragraph 51 of the Statement of Claim wherein the claim is stated to be “as per writ of summons” and submitted that that amounted to an abandonment of reliefs claimed in the writ of summons. Learned counsel for the appellant relied on Order 25 Rule 12(2) of Oyo State High Court (Civil Procedure) Rules also applicable in Osun State and cases like ENIGBOKAN V. AMERICAN INTERNATIONAL INSURANCE CO. (1994) SCNJ (Part 11) 168; LAHAN V. LAJOYELAN (1972) 6SC 190; UBA V. EUROPHARM LTD. (1990) 6 NWLR (Part 155) 239 and TELLA V AKERE (1988) WNLR 26.

On the 3rd issue it was the contention of appellants’ counsel that for a plaintiff to succeed on a claim for declaration, he must prove the boundaries and thus identity of the land and that notwithstanding whether the identity had been admitted by the defendant since plaintiff succeeds only on the strength of his own case and not on the admission of the defendant. It was contended that in this case the plaintiff/respondent failed to so prove. He relied on EKWEALOR V. OBASI (1990) 2 NWLR (Part 131) 231; FABUMI V. AGBE (1985) 1 NWLR (Part 2) 299. It was contended further that while the Respondent claimed only the farmlands at Oloworeju and Fakile, the lower court granted an additional but unclaimed farmland at Olota and submitted that the judgment was for that reason invalid. He relied on ODUKWE V. OGUNBIYI (1998) 8 NWLR (Part 561) 329 and OHANAKA V. ACHUGWO (1998) 9 NWLR (Part 563). It was also contended that the Respondent claimed for palm trees and not the land and that it was therefore wrong for the lower court to grant a declaration over land. To buttress this argument about the claim over palm trees only, learned counsel referred to paragraph 37 of the Statement of Claim. It was also contended that the evidence was contrary to the reliefs claimed. Another contention of learned counsel for the appellants is that there was no proof of title of Jacob Makinde and that it was not enough to prove that the said Jacob Makinde was the first to cultivate the land.