Modupe Ifayinminu V. Mrs. Taiwo Fadayomi & Anor (2004)

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CORDELIA IFEOMA JOMBO-OFO, J.C.A.

This appeal stems from the decision of A.O. ADEBUSOYE, J. of the Ondo State High Court sitting at Ondo in a judgment delivered 12th October, 2010 affirming the judgment of the Customary Court of Ondo State delivered 27th June, 2008 in favour of the plaintiffs herein the respondents.

FACTS OF THE CASE
The respondents who were the plaintiffs at the Customary Court by a plaint claimed against the appellant as the defendant for entitlement to the Customary Right of Occupancy over the farmland situate at Okepu Road, via Ondo in Ondo State, damages for trespass and injunction.

The case went to trial wherein the respondents called five witnesses and the appellant called two witnesses. While testifying the appellant gave the location of the land in dispute as being at Igomola consequent upon which the respondents applied that a visit be made to the locus in quo. Appellant’s counsel excused himself from the visit to the locus on personal ground but assured that his client the appellant was going to join the court and respondents to the locus and a date was fixed. Having foiled the scheduled visit to the locus in quo on two consecutive occasions by the absence of the appellant and of her counsel, the trial court adjourned the case for address and thereafter adjourned for judgment.

By its judgment delivered 24th June, 2008, the trial customary court granted all the claims of the respondents against the appellant. The appellant appealed against the said judgment of the trial customary court to the High Court of Ondo State which appeal was dismissed on the 12th of October, 2010. The appellant being dissatisfied with the dismissal of her appeal by the High Court is now on appeal before this court vide Notice of Appeal dated and filed 18th March, 2011 and containing nine (9) Grounds of Appeal.

The parties in compliance with the rules of this court duly filed and exchanged their briefs of argument. The appellant’s brief of argument is dated 27th February, 2012, filed 28th February, 2012 but deemed properly filed on 3rd December, 2012 while the reply brief is dated 9th December, 2013 and filed 10th December, 2011. Both briefs were settled by BADE AWOSUNLE, ESQ. The respondents’ brief of argument dated and filed 22nd November, 2013 was settled by R.O. OGUNMOYERO, ESQ.

At the hearing of the appeal on 16th January, 2014, the learned counsel for the appellant adopted and relied on both briefs as their argument in the appeal. He urged on us to set aside the judgment of the lower appellate court and dismiss the respondents’ claims granted them at the trial customary court. On the part of the respondents, learned counsel on their behalf having made an oral application to withdraw the respondents’ brief of argument dated and filed 7th January, 2013 but deemed properly filed on 10th October, 2013, the same was withdrawn and struck out. He then went on to adopt and rely on their brief of argument dated and filed 22nd November, 2013 as their argument in this appeal. He urged on the court to dismiss the appeal with substantial cost and affirm the decision of the lower court.

The learned counsel for the appellant has distilled the following four issues for the determination of the appeal:
i. Whether the lower court was right when it came to the conclusion that the respondents established ascertainable location and boundaries of the land in dispute. This issue relates to grounds 2, 3 and 4 of the grounds of appeal.

ii. Whether in the circumstances of this case, the lower court was right when it affirmed the judgment of the trial customary court on the basis of evidence of long possession. This issue relates to grounds 5 and 6 of the grounds of appeal.

iii. Whether the lower court was right when it agreed with the trial customary court that it was essential to visit locus in quo in this case so as to determine the boundaries of the land in dispute. This issue relates to grounds 7 and 8 of the grounds of appeal.

iv. Whether the lower court properly evaluated the evidence on record in this case. This issue relates to grounds 1 and 9.

Learned counsel for the respondents nominated three issues as arising for determination of the appeal. The issues are:
i.. Whether in view of the concurrent conclusions and findings of the two lower courts on the issue of the satisfactory proof by the respondents of their ownership of the land and the condemnable conduct of the appellant with respect to her boycott of the court for the visit to the locus, the Honourable court can interfere and disturb those findings and conclusions. The issues covers (sic) grounds 1, 7, 8 and 9 of the notice of appeal.

2. Whether the issue of the identity of the land in dispute can be disturbed in view of the concurrent findings of the two lower courts on the issue. This issue covers grounds 2 and 3 of the notice of appeal.

3. Whether the decision of the lower court can be disturbed taking into consideration the fact that pleadings are not filed at Customary Courts and other peculiar practice and procedure of such courts.