Madam Oredola Ogunameh & Ors V. Olugbenga Adebayo (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

Madam Ashabi Adebayo, the late mother of the Respondent herein, was the Plaintiff at the Shagamu High Court of Ogun State, where she had instituted an action against five Defendants, including the Appellants herein, claiming – a declaration that she was entitled to the grant of a statutory right of occupancy to a piece of land along Olutayo Ogunyanwo Street, Makun, Shagamu; N500,000.00 as special and general damages; and perpetual injunction restraining the Defendants, etc., from further trespass to the land.

At the trial, Madam Adebayo testified as PW2 and called two other witnesses – PW1, Sunmola Sanni, the Asipa of Koyelu Family, who testified that the Family sold the land in dispute to her and acknowledged his signature on the Purchase Receipt (Exhibit A), and PW3, Amos Ade Onabote, her Bricklayer.

Kolawole L. Ayanwale, a Registered Surveyor, was the 1st Defence Witness, and his testimony and Survey Plan (Exhibit E) led the learned trial Judge, Hon. Justice B. O. Ogunade, to order a visit to the locus. He had observed –

“At this stage It seems to me that having regard to the state of the conflicting evidence fed by the parties so far in respect of the site in dispute a visit to the locus will be beneficial’. (Italics mine)

At the locus in quo, the learned trial Judge recorded his observations, which was read out In Court and “both counsel agreed that the record is correct”.

Thereafter, the 1st Appellant testified that the land in dispute was allotted to her as a member of the same Koyelu Family and that she was given Exhibit F, a Land Agreement dated 13/4/77, as evidence of the grant. Sule Bakare, another member of the Koyelu Family testified as DW3 that the land belonged to the 1st Appellant and while he was in the witness box, the Appellants’ counsel applied and was granted leave to amend their Statement of Defence.

DW3 completed his testimony and the 3rd Appellant then testified as DW4.

Thereafter, counsel addressed the Court and in his Judgment delivered on the 4th of December 1997, the lower Court held as follows on the issue of title-

“After weighing all the evidence led by the parties on an imaginary scale as suggested in MOGAJI vs. ODOFIN (1978) 4 S. C. 91. I have come to the conclusion that more weight ought to be ascribed to the evidence of the Plaintiff and her witnesses on the issue of who has a better title to the land in dispute. I therefore hold that the Plaintiff has proved a better title than the 1st Defendant and those who are relying on her claim to title”. (Italics mine)

Dissatisfied with the decision of the lower Court, the Appellants appealed to this Court with an Amended Notice of Appeal containing 4 Grounds of Appeal.

In line with the Rules, briefs of arguments were duly filed and exchanged and in the Amended Appellants’ Brief prepared by Chief Lanre Akintola, it was submitted that the following Issues call for determination in this appeal –

1. Whether from the totality of the evidence adduced by both parties the lower Court used the proverbial scale of justice, vide Odofin & ors V. Mogaji & ors (1978) 2 NSCC275 before it entered Judgment on favour of the Respondent.
2. Whether it was right for the lower Court to substitute its own observations of what happened at the locus in quo and pointed out certain features of the land in dispute and everything else said by witnesses at the locus.

It was however submitted in the Amended Respondent’s Brief prepared by Olu Adenowo, Esq., that the Issues for Determination are as follows-

1. Whether on the totality of the evidence on record the trial Judge arrived at a proper decision in the Judgment delivered in favour of the Respondent.
2. Whether by the visit to the locus in quo, the notes of inspection recorded by the trial Judge and the subsequent procedure adopted there was a fundamental breach, which occasioned miscarriage of justice in the entire consideration of the case.

In my view, there is not much difference between the Issues formulated by the parties – they both draw attention to the Appellants’ grouse, which is that the lower Court failed to evaluate the evidence before it properly and did not apply the correct procedure at and after the Court’s visit to the locus in quo.