Chief Isaac Olokunlade & Ors V. Chief Peter Adebisi Ademiloyo (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the Appellants against the decision of the High Court of justice, Omuo-Ekiti, delivered by Justice M.A. Agbelusi on the 12th day of May, 2001 wherein the learned judge held that the subject matter in dispute is caught by issue estoppel and dismissed the Plaintiff’s claim.

The Appellants as the plaintiffs at the Lower instituted this action for and on behalf of the Olokoju family of Iluomoba-Ekiti against the Defendant, Chief Peter Adebisi Ademiloyo, the Anaun of Iluomoba-Ekiti (for and on behalf of Ahaun family of Iluomoba-Ekiti) and claimed the following reliefs as contained in paragraph 41 of their 2nd Amended Statement of Claim:-

1. A Declaration that the large piece or parcel of land known as AKOLA or OLOKOJU FAMILY LAND lying, situated and being along Ijesa-Isu/Ikole Road, Iluomoba Ekiti and which is particularly described and delineated on a plan to be hereinafter filed belong absolutely to Olokoju family of Iluomoba Ekiti.
2. The sum of FIVE MILLION NAIRA (N5,000,000.00) only as damages for one Hundred Raffia palm trees belonging to the 3rd plaintiff uprooted maliciously and without any justification by the Defendant at the plaintiff’s farmland lying, situate and being at Okeliju on Olokoju family land, Iluomoba-Ekiti.
3. The sum of THREE MILLION NAIRA (N3,000,000.00) only as general damages for incessant trespass committed by the Defendant on the Plaintiffs’ family land known as, Akola or Olokoju family land lying, situate and being along Ijesa-Isu/Ikole Road, Iluomoba-Ekiti which is specifically described and delineated in a plan to be hereinafter filed.
4. An ORDER of perpetual injunction restraining the Defendant’s, their agents, privies, servants or anybody acting for or on their behalf from further trespassing on the said plaintiffs family land above described.

The Appellant case as can be gleaned from the Pleadings and evidence adduced is that forefathers Okeranga migrated from Ijesha Isu many years ago and settled on this Piece or Parcel of land which was unhabitated by anybody. That on arrival at Iluomoba’ the Plaintiffs ancestors met OBA OBALEBOJU OTUPE the Ajagun of Iluomoba who allocated the large sparce of land in dispute to them. The plaintiffs also aver that the reigning Oba Obaleboju Otupe was a direct descendent of Oba Ajagun Dero, the first Ajagun of Iluomoba Ekiti. They averred that they are the traditional owners of the entire land in dispute from time immemorial and have been tilling the land without any disturbance at all except from the Defendant. The Appellants claim that, they and their ancestors have been-farming on the Land in dispute and hunting on the land and that the land, the subject of dispute is bounded on the West by Oya stream joining Isesi River and making the traditional boundary between the Plaintiff’s land and the Defendants. That in the North, the Plaintiff share a common boundary with Igbemo people’ and in the South west, the plaintiffs have a common boundary with the Ajagun of Iluomoba-Ekiti and in the East, they have a common boundary with Ijesha-Isu People.

They also averred and led evidence that they have settlements scattered all over the family land where both cash crops like cocoa, coffee, kolanuts, food crops like Yam, cocayam, banana, rice etc were planted. That the act of trespass committed by the Defendant and his people on the land in dispute led to the institution of action at the High Court of Justice sitting at Akure Division in Suit No. AK/34/61 which ended in Supreme Court in 1975 in Suit No. SC. 175/1974, between (1) Jeremiah Aladeoluba (2) Isaac Olokunlade vs. Chief Andrew Oladapo ended in the

case of the Plaintiffs being non-suited and the dismissal of the cross appeal of the Defendants family with cost of N150.00 in favour of the Plaintiffs.

The Respondent’s case on the other hand is that the land in dispute which is situated at Iluomoba-Ekiti belongs to them from time immemorial and has been exercising acts of ownership thereon. They relied on traditional history tracing their root of title to OBA OBALEBOJU OJOPE, the then Ajagun of Iluomoba-Ekiti. They also exercise acts of possession by leasing the land in dispute to strangers that is people from Akoko in Ondo State.

The Respondent also gave evidence that the land in dispute belongs to them from time immemorial being the first settler in Iluomoba-Ekiti relying on various judgment of court to substantiate this traditional history. They are:

1. Suit No. AK/ 67/61: Chief Andrew Oladapo Olofingba vs. Anjorin & Ors. And WSCA No Caw /42/71/ Isreal Anjorin & Ors. Vs, Chief Andrew Oladapo Olofingba.
2. Suit No. H13/86: chief Alegiri Adedipe & 3Ors. Vs. Madam Abigail Olasimoju & 10r.
3. Suit No. Hom/9/2005: Chief Isaac Olokunlade & ors. Vs. Mr. Abegunde Samuel & Ors.

Issues were joined and the matter went into trial. The plaintiffs/Appellants called 9 witnesses and Defendant/Respondent called 6 witnesses. After close of evidence their respective counsels address the court. The learned trial judge, in a considered judgment delivered on the 12th day of May, 2009 dismissed the Appellants’ claim in its entirety, holding that the matter is caught by estoppel per rem iudicatam or issue estoppel.

The Appellants are dissatisfied with the said decision of the lower court and appealed to this Hon. Court vide a Notice of Appeal filed on the 30th June, 2009, upon the following five grounds of Appeal, namely:-

GROUNDS OF APPEAL

1. The learned trial Judge erred in law in holding that the parties are referring to the same land when pleading and evidence led showered the contrary.
2. The learned trial Judge erred in law in not allowing his decision be found by the court of Appeal decision in Exhibit ‘1’ which stated that given the whole of Iluomoba-Ekiti to the Defendant was an obiter and could not constitute issue estoppels.
3. The learned trial erred in law in considering only paragraph 33 of the 2nd further Amended Statement of Defence without considering the evidence led in support of the said paragraph before coming to the conclusion that there is no dispute on the identity of the land.
4. The learned trial judge erred in law in holding at page 16 paragraph 4 thus:

“Again on issue No.5 where learned counsel for the defendant raised the poser whether the Plaintiffs have proved exclusive possession to the land in dispute entitling them to award of damages. which i said in this judgment constituted estoppel among the parties” when the Appeal Court had ruled that Exhibits ‘F’ and ‘G’ cannot grant (sic) issue estoppel.

5. The learned trial judge erred in law when he refused to consider the issue of damages claimed by the Plaintiffs.

Parties filed and exchanged briefs of argument. In the Appellants brief of argument settled by Owoseni Ajayi, Esq., the following four (4) issues were formulated for the determination of the appeal, to wit:-

1. Whether the defence of the Respondent was on the same land being claimed by the Appellants’
2. Whether the learned trial judge was not bound by the decision of the court of Appeal tendered and admitted as Exhibit’1′.
3. Whether the Hon. Court was right in refusing to consider the issue of damages claimed by the plaintiffs on the sole reason that the case is caught by the doctrine of issue estoppel even when the Defendants expressly admitted damages.
4. Whether on the preponderance of evidence adduced by the parties’ judgment ought to have been given to the plaintiffs.

In the Respondent’s brief of argument settled by Emmanuel Bamidele Omotoso, Esq., the following four (4) issues were also formulated for the determination of the appeal, to wit:-