Adebayo Alade & Anor V. Salami Ogundokun & Anor (1992)

LawGlobal-Hub Lead Judgment Report

RABIU DANLAMI MUHAMMAD, J.C.A. 

The Plaintiffs’ claim against the Defendants is for:-

“(a) Declaration that as the Customary owners the Plaintiffs are entitled to statutory right of occupancy in respect of the plaintiffs’ piece or parcel of land situate lying and being at Aroro, Igbo-Elepe area, Ile-Ogo, via Iwo in Oyo State, the plan of which will be filed later in court.

(b) N2, 000 being general damages against the Defendants jointly and severally for trespass committed on the said land sometime in March 1982. The trespass still continues.

(c) Injunction restraining the Defendants, their servants, agents and/or privies, from further acts of trespass on the said land.”

Pleadings were ordered filed and exchanged. Nine witnesses including the 1st and 2nd plaintiffs testified in support of the plaintiffs’ claims, while six witnesses including the two defendants testified for the defence. After addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment dismissed the plaintiffs’ claim as “wholly misconceived and unproved”. He also awarded N1, 500 costs in favour of the defendants.
It is against this judgment that the plaintiffs have appealed to this court upon three original grounds of appeal and with the leave of the court filed four additional grounds of appeal. The grounds of appeal shorn of the particulars are:-
1. ORIGINAL GROUNDS
GROUND 1
The decision is against the weight of evidence.
2. GROUND 2
Error in Law:
Particulars will be furnished when Record of Appeal is received.
3. GROUND 3
Further grounds of appeal will be filed on receipt of Records of Appeal.
4. ADDITIONAL GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred and misdirected himself in Law when he held, page 45 lines 29-32, page 47 lines 1 – 6, ‘while I agree that 3rd P.W. (Delemo) is the eldest member of the second defendant’s family, I do not believe that he is the head of the family. There is the abundant evidence that he does not reside at Ile-Ogo and did not even attend the funeral ceremony of his father. I do not believe that members of his family can retain a person of his character as their head of family. He appears to me to have been procured by the plaintiffs as an outcast of his own family to give evidence against his family interest’ and therefore came to a wrong decision which caused a miscarriage of justice.

5. GROUND 2
The learned trial Judge erred in law when he held at page 47 lines 28-33, page 48 lines 1-10 ‘surely if land at Ile-Ogo is stool land and there are five ruling houses, one ruling house cannot claim an exclusive right to title over all land there. If this court awards title to one of the ruling houses; that is, to Akinola Ruling House, from which the first plaintiff emerged, what will be left for the other ruling houses? By its nature, a Statutory Right of occupancy is a State guaranteed title to land: page 40 lines 4-10. It is for this reason that I accept the submission of the learned counsel for the defendants that if the plaintiffs’ case is that the land is stool land then they should have sued in representative capacity and with the consent of all other ruling houses. In so far as this action is brought in a personal capacity it is wholly misconceived. And thereby came to a wrong decision which caused a miscarriage of justice.

6. GROUND 3
The learned trial Judge erred in law in dismissing the appellants’ claim when the respondent relied on partition in their pleadings, but failed to prove such a partition nor gave such evidence and therefore came to a wrong decision which caused a miscarriage of justice.

7. GROUND 4
The learned trial Judge erred in law when he held at page 49 lines 4-6 that ‘the plaintiffs not being in possession cannot therefore be granted Certificate of Occupancy.’ And thereby came to a wrong decision which caused a miscarriage of justice.”

Learned counsel for the parties filed and exchanged their respective briefs of argument. In their brief, the appellants identified three issues for determination. These are:-

(i) Whether there was proper evaluation of the evidence proferred by the plaintiffs and their witnesses in contrast to those of the defendants; from the learned trial Judge’s summing-up contained at pages 44-47

(ii) Whether the land at Ile-Ogo was held by successive Baales as communal heads in trust for the people.

(iii) Whether it was proper for the learned trial Judge to have set out in detail to adversely highlight the evidence of P.W.3 on the unpleaded facts in order to boost (also in great detail) the evidence of D.W.4 who is a brother to D.W.5 and both in-laws to D.W.2 (the 2nd defendant) so as to provide reasons for dismissing the case of the plaintiffs.

Below are what the Respondent called issues for determination:-
ISSUES FOR DETERMINATION:-
1. The issues for determination postulated by the Plaintiffs/Appellants are pure issues of facts.
2. The issues being issues of fact the Plaintiff/Appellants are bound and/or required under S. 134 (1) (2) of the Evidence Act to prove their claim which they failed to do.
3. Submitted that the learned trial Judge saw the witnesses and evaluated their evidence correctly copiously and found the case of the Plaintiffs/Appellants not proved.
4. That the learned trial Judge dismissed and rightly too the case of the Plaintiffs/Appellants as required in cases not proved. Kodilinye v. Odu (1935) 2 WACA 336 at 33 Oyeyide V. Adeoti (1973) NMLR 103 at 104 Adebakin v. Odujebe (1973) NMLR 148 at 124.