Shittu Sanusi & Ors. V. Buraimo Obafunwa & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

In the Writ of Summons filed at the Sagamu High Court of Ogun State on the 19th September 1984, the Respondents as Plaintiffs for themselves and on behalf of the Ofifi Family of Isokun Ilishan claimed inter alia that “they are entitled to Right of Occupancy on a piece or parcel of land situate, lying and being at Ilishan, Remo, Ogun State”, and in paragraph 5 & 6 of their original Statement of Claim dated 6th December 1984, they averred as follows –

5. The Plaintiffs state that the land in dispute is situate, lying and being at Ilishan Ikenne Road, Ilishan Remo, Ogun State and is edged GREEN in Plan No. OGE 343A/78 and attached to this Statement of Claim”.
6. The Plaintiffs state that the whole area edged RED in the said plan belonged originally to one Ofifi who came from I1e-Ife to settle on the land very many years ago.

They further averred as follows in paragraph 40 of the Statement of claim –

“WHEREOF the Plaintiffs claim as per their writ of summons”.

The same averments were reproduced in their “Amended Statement of Claim” dated 22nd April 1985, and repeated in paragraphs 5, 6, & 43 of their “Further Amended Statement and Plan” dated 28th February 1986.

The Appellants as Defendants filed a Statement of Defence dated 3rd of April 1985; an “Amended Statement of Defence” dated 3rd of May 1985, and after 4 of their witnesses had testified on their behalf, a Further Amended Statement of Defence” dated 22nd of October 1987, which they sought leave of the lower Court to deem as having “been regularly filed and served”. After hearing arguments from counsel, the lower Court held as follows –

“I find that the Defendants have brought in their genealogical tree which is so detailed – – one is not left in doubt at all that the Defendants have just woken up from their slumber to tell the world their family history i.e. who begat who. The proposed amendments are fundamental. In this case the Plaintiffs called 10 witnesses and have closed their case. The Defendants have called 4 witnesses before it dawned on them to bring this application. – – – The Defendants have not come to equity with clean hands. It is one lie after the other. It will work injustice on the Plaintiffs to allow this massive amendment. Accordingly the application to amend paragraphs – – is hereby refused and the application is hereby dismissed. As stated earlier the formal amendments in paragraphs – – are hereby granted and an amended Statement of Defence reflecting only these amendments should be filed within 7 days. The Further Amended Statement of Defence dated 22nd October 1987, which was flied without leave is hereby ordered to be expunged from the records”

Consequent upon the above Ruling, the Appellants filed a “Further Amended Statement of Defence” dated 28th of October 1987, wherein it was averred –

3. In answer to paragraph 5 of the Further Amended Statement of Claim, the Defendants say that the land in dispute is situate, lying and being at Ikenne, Ijebu Remo, Ogun State of Nigeria and it is more particularly described and edged RED on Plan OGE3434AA/78 made by S. Akin Ogunbiyi, Licensed Surveyor”. (Italics mine).
4. A few men revolted against the entire Messe Family and employed Mr. S. Akin Ogunbiyi Licensed Surveyor in 1978 to carve out a portion of Messe Obara Family land for their use in the name of their paternal Ancestor called Ofifi.
5. The said Licensed Surveyor prepared a plan No. OGE343/78 dated the 24th day of November 1978 in the name of Ofifi Family and thereon verged the land taken “RED”.
6. The Defendants further aver that the Plaintiffs also instructed the said Mr. S. Akin Ogunbiyi Licensed Surveyor to fix some additional details into the area verged RED on the plan No. OGE343/78, which instructions the said licensed Surveyor carried out and produced the plans No. OGE343A/78 and OGEAA referred to in paragraphs 3 and 9 of the Further Amended Statement of Claim. The Defendants shall also rely on the said plan No. OGE343AA/78 at the hearing of the action.

At the conclusion of the trial, wherein 10 witnesses testified for the Respondents and 8 witnesses gave evidence for the Appellants, and after hearing addresses of counsel, the learned trial Judge, Hon. Justice I.O. Sonoiki delivered Judgment on the 18th of February 1988, wherein he held –

“There shall be Judgment for the Plaintiffs against the Defendants jointly and severally for a customary right of occupancy to the area verged Green on Exhibit A excluding the areas verged yellow therein. There shall be N400.00 (Four hundred Naira) general damages for trespass and the Defendants, their servants, agents and privies are retrained from committing further acts of trespass on the land in dispute. There shall be N2,500 costs to the Plaintiffs”. (Italics mine).

Dissatisfied, the Appellants have appealed to this Court with a Notice of Appeal containing 11 Grounds of Appeal, some of which the Respondents argue should be struck out. The said grounds without their particulars are –

1. The learned trial Judge erred in law and on the facts in granting a Customary Right of Occupancy to the area verged Green on the plan tendered as Exhibit ‘A’ excluding the area verged Yellow thereon and so came to a wrong decision.
2. The learned trial Judge erred in law and misdirected himself on the facts when he observed as follows: –

“The defendants do not deny that they entered the land and sold portions of it to Chief Okulaja, etc. No act of trespass could be greater than these. As the Defendants have no claim to the land, they ought to be restrained from going on to the land.

3. (No Ground 3)
4. The learned trial Judge erred in law in not identifying the three vital issues involved in this case and thereafter to proceed to settle the issues in his Judgment in line with the evidence adduced so as to enable him to arrive at a just decision in the above matter and consequently he arrived at an entirely wrong decision.
5. The learned trial Judge erred in law and on the facts in dealing with the case of the defence rather than on the proper consideration of the proof of the Plaintiffs’ claim upon its merits and the proper appraisal of the whole of the evidence adduced before him and so he came to a wrong decision.
6. The learned trial Judge misdirected himself in law and on the facts when he held as follows –

These people including the 1st D.W claim relationship with Messes Obaro Familiy. The only explanation for this claim of relationship with the Messe Obaro Family would not be far from the fact that they were able to sell land with Messe Obaro Family and to pocket the money without accounting to members of Ofifi Family. They could be nothing other than degenerates.

7. The learned trial Judge erred in law and grossly misdirected himself when he held as follows –

“Plaintiffs have established their claim to the disputed land and the Defendants have not disputed this. The defendants claim they are joint owners as relations which the Plaintiffs deny. The onus is on the Defendants to prove this relationship and they can only do this by giving the genealogical evidence of their relationship with Plaintiffs’ family. These, the Defendants have woefully failed to prove. They cannot just come to Court and say they are related to the Plaintiffs through Odubero. They must show the family tree connecting them with Ofifi because according to the Plaintiffs Odubero was not the wife of Ofifi but his wife was “Jebi”.