Alhaji Saibu Gbadamosi V. Mr. Okege & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Oyo State, Ibadan Judicial Division delivered on 20th January 2003 dismissing the plaintiff/appellant’s claim for declaration of title, damages for trespass and injunction. Dissatisfied with the decision the appellant filed a notice of appeal containing eleven grounds of appeal. With leave of this Court granted on 13/10/05 the appellant amended his notice of appeal by filing five additional grounds of appeal thus bringing the total number of grounds of appeal, to sixteen.

In compliance with the rules of this Court the parties duly filed and exchanged their respective briefs of argument. In his brief dated and filed on 4/12/07 but deemed filed on 31/3/08 the appellant distilled four issues for determination as follows:

1. Whether having regard to the pleadings and evidence adduced before the trial court, the learned trial Judge was right to have dismissed all the appellant’s claims in its entirety. (Grounds 2, 5, 9 & 10)
2. Whether from the pleadings and evidence based on them, the learned trial Judge evaluated the evidence and drew proper inferences and conclusions in dismissing all the claims of the appellant. (Grounds 1, 3, 13, 15 & 16)
3. Whether the learned trial Judge was right to have based his judgment on illegal and inadmissible evidence to wit: Exhibit E contrary to the rule of admissibility of documents, more especially [as] Exhibit E is a registrable instrument within Section 5 of the Land Title Registration Law Cap 57 Laws of Oyo State of 1978 Vol. III and Section 5 of Land Instruments Registration Law, Laws of Oyo State 1978 Cap 56 Vol. III, within which the said document ought to have been registered under the said law. (Ground 12)
4. Whether the judgment is against the weight of evidence. (Grounds 11 & 14)

No issues were formulated from Grounds 4, 6, 7 and 8 of the grounds of appeal. The said grounds are deemed abandoned.

The respondents in their brief dated and filed on 9/5/08 but deemed filed on 23/9/08 adopted the four issues formulated by the appellant. At the hearing of the appeal on 12/4/2010, S. A. Onifade Esq., adopted and relied on the appellant’s brief and the Reply brief dated 24/9/08 and filed on 2/10/08. He urged the court to allow the appeal. Mrs. M. Aworemi adopted and relied on the respondent’s brief aforesaid and urged the court to dismiss the appeal.

By paragraph 17 of his statement of claim dated 19/4/2000 at page 14 of the record, the appellant as plaintiff claimed against the respondents, who were defendants at the lower court, as follows:

“17. Whereof the plaintiff claims against the 1st and 2nd defendants jointly and severally and or in the, alternative as follows:

i) A declaration of a statutory right of occupancy to all that parcel of land situate, lying and being at (sic) opposite Old Niger West Company Ltd. Challenge Ibadan.

ii) N100.00 damages for trespass committed by the defendants when they entered upon the plaintiffs family land and did still continues (sic).

iii) An order of perpetual injunction restraining the defendants, their agents, privies and any other person or persons who may Claim through the defendants.

iv) A declaration by the court that the 3rd defendant is a trespasser on the aforementioned piece or parcel of land behind the one encroached by the 1st and 2nd defendants opposite Old Niger West Company Limited, Challenge, Ibadan which will be clearly shown on the survey plan to be filed later in this suit”

The 1st and 2nd respondents filed a joint statement of defence at pages 37 – 40 of the record, to which the appellant filed a reply at pages 41 – 44 of the record. The 3rd respondent did not file any pleadings and did not testify at the trial.

The appellant instituted the action in a representative capacity for himself and on behalf of the members of Kure Awojobi family of Ibadan. At the trial the appellant testified on his own behalf as PW3 and called three other witnesses. It was the appellant’s case that over 150 years ago there was a war known as the Gbanamu war, which was fought by Iba Oluyole, Kure Awojobi, Ashiru Onipako and Olorisagbonna of Ibadan against the Egbas and the Ijebus. Ibadan won the war and after the conquest the families referred to above shared the vast area pf land amongst themselves. Individual families settled on their respective portions. Kure Awojobi, the appellant’s ancestor, settled on his own portion located generally from Felele junction, on both left and right sides up to Adelabu market on Ijebu-Ode Road, Ibadan. According to the appellant Kure Awojobi, his great grandfather farmed on his land and after his death his children took over and continued farming thereon. He testified that his family sold some plots of land to some persons, including one Osigbodu. He testified that the land in dispute consists of only two plots out of about 1000 acres owned by the family. He also testified that although he resided in the Republic of Benin at a point in time, he always came home during Ileya festivals and visited the land to ensure that there were no trespassers on it. At a point in time he caused a letter to be written by his solicitor to some trespassers found on the land, which was pasted on the fence but received no reply thereto. He stated that he also had labourers who regularly cleared the land, It was his case that none of the respondents have the authority of his family to be on the land in dispute. He tendered a dispute plan, Exhibit B, prepared in 2000, to show the area, trespassed upon by the respondents. It was the case of the respondents that the 1st respondent, who is the owner of the 2nd respondent, purchased the land in dispute from one Alhaji Aremu of Morafat Nig. Ltd., which sale was evidenced by a deed of assignment tendered as Exhibit D. He stated that Morafat Nig. Ltd. had constructed a building on the land, which was to be used as a shopping complex but which he demolished upon purchasing the land and rebuilt to display his cars and trucks. He stated that the land was fenced and there was an existing gatehouse. He traced the sale of the land he occupied from the sale to him by Morafat Nig. Ltd. through previous purchasers back to 1959.

Various’ documents (Exhibits C, C1, C2, C3 and C4) were tendered through an assistant Deeds Registrar to confirm the various transactions. He also tendered Exhibit E, a document of transfer from Mid-Motors Ltd., a company that used to sell cars on the land to one Timothy Odutayo Kuti, one of the purchasers of the land. Kuti allegedly sold the two plots shown in Exhibit C1 to his wife. Mrs. Kuti assigned a portion of plot A to Mr. Oye Ariyo Odunpla. Oye Ariyo Odunola assigned the said portion to Alhaji Muritala Aremu of Murafat Nigeria Ltd and two others. Alhaji Muritala Aremu and the two others assigned the portion to the 1st Respondent while the 3rd Respondent purchased the second portion of Plot A. Mrs. Kuti retained the second plot. The 1st defendant stated that he had been on the land undisturbed from 1996 when he purchased it until 2000 when the appellant instituted the action before the trial court. After considering the evidence of the parties, the exhibits tendered and the submissions of learned counsel in their final addresses the learned trial Judge dismissed the plaintiff’s claims in their entirety, hence this appeal.