Mr. Bade Awosunle & Anor V. Chief (Mrs.) Christianah Fagbemi & Anor. (2011)

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 judgment of the High Court of Ondo State, sitting at Ondo delivered on 18/4/2007 granting the claims of the 1st plaintiff (1st respondent in this appeal) and dismissing the counter claim of the 1st defendant (1st appellant herein).

By a Writ of Summons dated the 30th day of July, 2004 and Statement of Claim dated the 23rd day of August 2004 filed before the Ondo State High Court, Ondo Division the 1st respondent, claimed the following reliefs against the appellants:

1.”A declaration that the plaintiff is the person entitled to assignment of Certificate of Statutory Right of Occupancy and/or use of land situated and lying at Abusoro/Ondo/Ife Road, Ondo measuring approximately 1, 250 hectares, which is more particularly described and edged Red on the survey plan no. JOE/1992/ dated 11th December 1986 prepared by J. Olasehinde Esan, Licensed Surveyor with Certificate of Occupancy registered in Ondo State Registry of Deed Akure on the 15th day of March 1991.

2. Perpetual injunction restraining the defendants, their servants, agents or privies from entering or committing further acts of trespass on the land.
3. One Hundred Thousand Naira (N100, 000.00) only as general damages for acts of trespass of the defendants on the said land.”

The appellants filed a Joint Statement of Defence and 1st defendant’s counter claim dated the 17th day of September 2004. The 2nd respondent was subsequently joined as co-plaintiff. The writ of summons and statement of claim were amended accordingly. In the Amended Statement of Claim dated 5/5/06, the respondents sought the declaration in relief 1 in favour of the 1st respondent. The appellants also amended their pleading and in their Amended Statement of Defence dated the 15/9/06 sought the following reliefs:

1. “An order setting aside any Deed of Assignment issued by the 2nd plaintiff in favour of the 1st Plaintiff and/or any other instrument whatsoever obtained by the Plaintiffs and/or on their behalf by any person howsoever for being irregularly issued and/or obtained for want of entitlement to such instrument and/or instruments over the land in dispute.
2. An Order setting aside the Certificate of Occupancy obtained by the / plaintiff on the land in dispute for being irregularly issued and/or obtained for want of the 2nd Plaintiff’s entitlement to the Certificate of Occupancy over the land in dispute.
3. Declaration that the 1st Defendant is the person entitled to the grant of Statutory Right of Occupancy over the parcel of land measuring approximately 22 1/2 plots situate tying and being at Ogbe Area, KM 5 Ondo-Ife Road, Ondo which land is bounded as follows:
4. On the Right Side by 2nd Defendant’s Land
5. On the Left Side by Abusoro Road
6. At the Front by Abusoro Road
7. At the Back by John Afolabi Adenika’s Land
8. N225, 000.00 (Two Hundred and Twenty-Five Thousand Naira) only being specific and general damages for trespass committed by the Plaintiffs on the said land.
9. An order of injunction restraining the Plaintiffs, their assigns, servants, agents, and anyone whosoever claims through them from committing trespass or further acts of trespass on the land in dispute and/or dealing with the land in dispute in any manner.”

The respondents filed a defence to the 1st appellant’s statement of defence and counter claim dated 4/10/06. After the completion of pleadings, the case proceeded to trial. At the conclusion of the trial, the learned trial Judge in a considered judgment delivered on 18/4/07 dismissed the 1st appellant’s claims and granted the claims of the respondents. The appellants being dissatisfied with the decision filed a notice of appeal containing nine grounds of appeal.

The case of the respondents at the court below was as follows:

The 1st respondent purchased the land in dispute, which is situate along Ondo/Ife Road, Ondo from the 2nd respondent who purchased same from the Akingbesote family of Ondo. Their case was that Akingbesote (who later became known as Chief Lisa Ifore Akingbesote) inherited the land from Losan through his maternal side. That Losan also begat the father of the 2nd appellant.Akingbesote exercised all rights of possession on the said parcel of land. The 2nd respondent’s father, Chief Jomu James Akinnawo sold the land farmed upon by Chief Akingbesote to one Chief Opotu Akinrele Akintoye (hereinafter referred to as Chief Akinrele). When Chief Akingbesote heard of the sale, he reported the case to the Osemawe of Ondo who referred the matter to Chief Lisa Fawehinmi for adjudication. As a result of the arbitration, the 2nd appellant’s father was ordered to return the purchase price to Chief Akinrele. He could not afford to do so. It was therefore decided that Chief Akingbesote should refund the purchase price to Chief Akinrele who in turn gave the original purchase agreement between him and the 2nd appellant’s father (Exhibit K) to Chief Akingbesote. The outcome of the arbitration was tendered in evidence as Exhibits J and J1. Exhibit J is the English translation of Exhibit J1. The respondents’ case was that the land in dispute forms part of the land repurchased by Chief Akingbesote from Chief Akinrele. Part of the land in Exhibit K was also sold to one Chief Odunwo Akingbulue.

The case of the appellants on the other hand was that the land in dispute is situate at Abusoro, along Ondo/Okeigbo/Ife road and forms portion of a large parcel of land founded by the 2nd appellant’s ancestor, Losan. The land devolved from Losan through his descendants to the 2nd appellant who sold same to the 1st appellant. That Chief Akingbesote through whom the respondents claim was a customary tenant to the 2nd appellant’s family on another portion of the family land. After the death of the 2nd appellant’s father, Chief Jomu James Akinnawo and Chief Akingbesote, Chief Akingbesote’s children allegedly broke into the 2nd appellant’s land and alienated large parcels thereof to several persons without the consent or authority of the 2nd appellant’s family. When the 2nd appellant’s family noticed the trespass, they challenged them, as a result of which the principal members of the Akingbesote family entered into agreements with the family undertaking to repay the family for land wrongly sold to various individuals.

The agreements were admitted in evidence as Exhibits M and N respectively. The respondents however claimed that after executing Exhibits M and N they discovered that the land comprised in those agreements was the same land that Chief Akingbesote re-purchased from Chief Akinrele. They therefore instructed their solicitor to write to the 2nd appellant demanding a refund of the money paid to him in respect of Exhibits M and N. Two letters were written. They were admitted in evidence as Exhibits L and L1. The 2nd appellant denied receiving the letters. The appellants contend that the land in dispute is a portion of the larger parcel of land trespassed upon by the Akingbesote family.

The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant formulated four issues as follows:

1. Whether the trial court was right in placing the onus of proof of the identity of the land allegedly retrieved by Chief Akingbesote from Chief Opotu Akintoye Akinrele on the appellants. Grounds 2.
2. Whether the trial court was right when it granted the respondents’ claims against the appellants and dismissed the 1st appellant’s counter claim against the respondents. Grounds 1, 3, 4, 5, & 8.
3. Whether in the circumstances of this case, it was necessary for the 2nd appellant to apply for an Order of forfeiture of the customary tenancy of Akingbesote family before the claims of the 1st appellant could succeed. If the answer to the above is in the affirmative.

Whether it was proper for the trial court to have raised the issue of non-forfeiture of the customary tenancy of Akingbesote family suo motu without affording parties the opportunity to address it on the issue. Grounds 6 & 7.

4. Whether the trial court properly evaluated the evidence placed before it. Ground 9.

The respondents also formulated four issues for determination thus:

1. Whether the trial court raised the issue of forfeiture of customary tenancy in this case suo motu and thereby occasioned a miscarriage of justice to the appellants.
2. Whether the trial Judge was right when he granted the respondents’ claims against the appellants and dismissed the 1st appellant’s counter-claim against the respondents.
3. Whether the appellate court can interfere with findings of facts made by the trial court.
4. Whether the land in dispute forms part of the land adjudicated upon by Chief Lisa Fawehinmi and if the answer is in the affirmative, whether the 2nd Appellant had any land he could sell to the 1st appellant.

At the hearing of the appeal on 10/10/2011, Thompson Akinyemi, learned counsel for the appellants adopted and relied on the appellants’ amended joint brief of argument dated 31/1/2011 and amended reply brief also dated and filed on 31/1/2011. Both briefs were deemed properly filed pursuant to an order of this court made on 10/3/2011. He urged the court to allow the appeal. The respondents, although duly served with hearing notice through their counsel on 6/10/2011, were absent at the hearing and were not represented by counsel. However, having filed an amended joint brief of argument dated and filed on 17/3/2011, they are deemed to have argued the appeal pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules 2011.