Tiamiyu Ogunyomi & Anor. V. Oladosu Ogundipe & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of J. O. Bada J. of the High Court of Justice Ila Orangun, in the Ila Orangun Judicial Division of Osun State of Nigeria in Suit No. HLR/29/93 TIAMIYU OGUNYOMI & ANOR (For themselves and on behalf of the Olode Ogunyomi family) v. Oladosu Ogundipe & anor delivered on the 23rd October, 1997. In the said Suit, the present Appellants as Plaintiffs had by paragraph 19 of their amended statement of claim and plan dated the 8th May, 1996 claimed against the Respondents as Defendants and as per their writ of summons as follows:

(a) Declaration that the Plaintiffs are entitled to the customary right of occupancy of the piece or parcel of land situate, lying and being at Otowu Village, Aran Orin road, Ila Orangun and it is edged RED on plan No: OS/0560/94/L.103 drawn by I. O. Aiyegbayo licensed surveyor on 30/3/94.

(b) The sum of N20, 000:00 being special and general damages for trespass committed on the said piece or parcel of land on or about 1st May, 1990 which trespass still continues.

(c) Perpetual injunction restraining the Defendants, their servants, agents, privies or anyone claiming through or under them from further acts of trespass to the said piece or parcel of land.

Briefly the case for the Appellants as Plaintiffs in the court below as can be gleaned from the Amended Statement of Claim and plan at pages 32-34 of the Record of Appeal and paragraphs 2.00 at page 1 paragraphs 2.09 at page 2 of the Appellant’s Brief of Argument is as follows:-

The Plaintiffs are farmers and the land in dispute is situate at Oluode Ogunyomi Otewu Village Aran Orin Road, Ila Orangun. One Ogunyomi Alade a great warrior, hunter and ancestor of the Plaintiffs settled on the land in dispute as a virgin forest during the reign of Orangun Agboluaje and farmed extensively on the land growing economic and food crops and establishing a village called Oluode Ogunyomi village on the land in dispute. Ogunyomi Alade farmed on the said land alone for seven years and two months before he introduced his many children to the said farmland. His exclusive ownership in possession of the land in dispute was affirmed by the Ila Native Authority in 1952 and thereafter by Oba William Ayeni the Orangun of Ila in 1972 and in further exercise of their right of ownership of the land in dispute the descendants of Ogunyomi Alade allotted portions thereof to several customary tenants who farmed thereon without any let from anyone at all. In May 1990, the Defendants trespassed on the land damaging the crops thereon and laying unfounded claim to a portion of the land.

The Respondents as Defendants in their Amended Statement of Defence and Plan dated the 16th June, 1995 at pages 22-24 of the Record of appeal and paragraphs 3.01 – 3.04 at page 3 of the Respondents’ Brief of Argument have also stated their own case laying claim to the land in dispute which is that the land in dispute formed part of the land granted to Ogunlolu their ancestor as a virgin unoccupied forest land at Otewu by the Orangun of Ila, Oba Olajobi Agboluaje J. Ogunlolu farmed on this and the remaining part of the land cultivating cash and food crops and on his demise, the whole farm including the one in dispute devolved on his children according to native law and custom and later to the descendants of these children who were exercising right of ownership over the farmland by farming thereon and placing tenants on the farmland. Pleadings having been exchanged, the case went on to be heard.

The 1st Plaintiff and ten witnesses gave evidence on behalf of the Plaintiffs while three witnesses gave evidence on behalf of the Defendants. At the conclusion of evidence by the parties, learned counsel on both sides addressed court and in a considered judgment delivered on the 23rd October, 1997 the Court found in favour of the Defendants and dismissed the Plaintiff’s claim in its entirety.

Dissatisfied with this judgment, the Plaintiffs appealed against same by filing a Notice of Appeal dated the 29th October, 1997 and filed on the 17th November, 1997 and which is contained at pages 109-111 of the Record of Appeal. The said Notice of Appeal consists of four Grounds of Appeal stated hereunder devoid of particulars-

1. The decision is against the weight of evidence.
2. The learned trial Judge erred in law and on the facts when in dismissing the Plaintiff’s claim he held that –

“It is my view that the Plaintiffs are not entitled to the customary right of occupancy of the piece or parcel of land situate, lying and being at Otewu village, Aran-orin road, Ila Orangun.”

When the evidence adduced by the Plaintiffs clearly supported the case of the Plaintiffs as to title and possession.

3. The learned trial Judge erred in law and on the facts (sic) held as follows:

“It is settled law that where two parties claim to be in possession the law ascribes possession to the one with better title.”

When from the evidence before the court only the Plaintiffs led evidence of title, the defendants even though pleaded title led no shred of evidence in buttress thereof but completely abandoned the averment in his pleadings.