Adamu Erinle & Ors V. Alhaji Busari Aluko & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Ogun State High Court of Justice, Agbara Judicial Division delivered on the 16th day of June, 2010. The matter was begun at the Ota Judicial Division but with the transfer of the trial judge to Agbara Judicial Division, the Chief Judge of Ogun State granted fiat to the Judge to conclude the matter. The matter was accordingly heard and determined at the Agbara Judicial Division of the Ogun State High Court of Justice.

At the trial High court (lower court) the Appellants were the plaintiffs, while the Respondents were the Defendants. As Plaintiffs, the Appellants had instituted this action against the Respondents as defendants seeking for the following reliefs as per paragraph 49 of the Amended Statement of Claim.

(a) A declaration that the Plaintiffs’ family are the persons entitled to a grant of statutory right of occupancy over and in respect of the parcel of land lying, being and situate on Idorawa farmland, Igbesa Ogun State and better described and delineated in Survey No. OG/1176/2008/001 dated 30th April, 2008 and prepared by R.O. Akinyemi, Licensed/Registered Surveyor.

(b) N1,000,000.00 as general damages for the trespass committed by the defendants on the Idorawa family land outside the land granted to them as customary tenants.

(c) An order of forfeiture against the defendants in respect of the land granted to them as customary tenants by the plaintiffs’ family.

(d) Possession of the portion verged blue on the survey plan No. OG/1176/2008/001 dated 30th April, 2008 and prepared by R.O. Akinyemi, Licenced/Registered Surveyor granted to the defendants as customary tenants.

(e) Perpetual injunction restraining the defendants either by themselves, their agents, workmen, privies or howsoever described from selling, leasing, alienating tampering with or going unto the Plaintiff’s land.

(f) Cost of this action.

Concisely, the claim of the Appellants is that the land in dispute devolved to them through their ancestor, one Adagunja. That the said Adagunja migrated from Ile-Ife to found and settle on the land in dispute. According to the Appellants, the Respondents are not part of the Idorawa family, but strangers who were granted the land by the Appellants as customary tenants. That the Respondents exceeded the boundaries of the land granted them as customary tenants and have also started selling parts of the land granted them without the consent or authority of the Appellants.

On their part, the Respondents claim that it was their ancestor Ido-Arawa, whom they also claimed migrated from Ile-Ife that founded and first settled on the land in dispute. They accordingly, also traced their ancestry to the said Ido-Arawa and therefore claimed to be the authentic Idorawa family. They also insisted that the Appellants are their customary tenants.

At the trial, the Appellants who were plaintiffs called nine (9) witnesses and tendered a Survey Plan of the land in dispute and some other Exhibits which they relied upon in prove of their case. The Respondents as Defendants called seven (7) witnesses and tendered some exhibits, also in support of their case. At the close of evidence and addresses of counsel, the learned trial judge dismissed the Appellants’ case entirely. The Appellants are aggrieved by the said judgment and have appealed to this Court.

The Notice of Appeal was dated the 12th day of July, 2010 and filed 13/07/2010. It consisted of nine (9) Grounds of Appeal as contained at pages 294 – 303A of the Record of Appeal. The said Grounds of Appeal without their particulars are hereby reproduced, and they are as follows:-

1. The Learned Trial Judge erred in law in failing to appraise and evaluate the traditional history led by the parties before resorting to the application of the rule in KOJO II v. BONSIE and this error led to miscarriage of justice against the Appellants.
2. The Learned Trial Judge erred in law when he stated thus: “Application of the principle in KOJO v. BONSIE (supra) in this case is definitely as a result of the unsatisfactory traditional evidence adduced by the claimants” when in actual fact the evidence of traditional history relied upon and adduced by the Appellants was never appraised or evaluated to determine whether it was satisfactory or not.
3. The Learned Trial Judge erred in law in relying on the evidence presented by Respondents when the evidence was dilatory, not probable and at variance with their pleading.
4. The Learned Trial Judge erred in law in relying on the judgment of the Oba-in-Council of Igbesa, Exhibit ‘E’, to hold that the Respondents were the owners of the land in dispute when the said exhibit was neither admissible in law nor relevant to the issue of ownership of the land in dispute.
5. The Learned Trial Judge misdirected himself when he held thus: “However at the trial the claimants did not call any evidence to show when the customary tenancy was granted to the family of the defendants and what the terms and conditions of the customary tenancy were as the law enjoins them to do”, when indeed these were satisfactorily done in the pleading and evidence led by the Appellants.
6. The Learned Trial Judge erred in law when he held that the Appellants failed to prove sufficient acts of ownership in recent years to show their claim of title when indeed there was abundant evidence of these on record but the lower court chose to ignore them.
7. The Learned Trial Judge erred in law in failing to pronounce and/or make findings on vital facts upon which issues were joined particularly with respect to the claim of the Appellants that the Respondents were not authentic members of Idorawa and ought not to have been allowed to defend the case in the name of the said family.
8. The Learned Trial Judge erred in law when he failed to consider the evidence of boundary men called as witnesses by the Appellants but chose to consider the evidence of DW3 and DW5, the purported tenants, called as witnesses by the Respondents.
9. The judgment is against the weight of evidence.

In obedience to the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellants’ Brief of Arguments was dated the 20/1/2011 and filed the 24/1/2011, but deemed as properly filed on the 12/4/2011. Therein, the Appellants nominated five (5) issues for determination as follows: