Alfa Dauda Olukade & Ors V. Alimi Kelani & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is from a judgment of a High Court sitting in Abeokuta, Ogun State (the court below), over a lawsuit respecting disputed parcel of land situate at Egudu Farm Igbesa in which the court below decreed customary right of occupancy over the disputed land in favour of the respondents together with orders that the appellants should pay all the arrears of customary tribute (Ishakole) at the rate of N10.00 per annum per each appellant with effect from 1.1.1980 to 13.5.1996, forfeiture of the customary tenancy granted to the appellants through their ancestors and repossession of the disputed land by the respondents, and a permanent injunction restraining the appellants’ re-entry into the disputed parcel of land.

In summary, the respondents’ case as plaintiffs at the court below was that their progenitor, one Ose or Osee, who was a hunter and farmer migrated from Ile-Ife to found the disputed parcel of land as its first settler thereon upon which he farmed seasonal crops and planted economic trees like cocoa and bitter kola in his lifetime; that their progenitor had one child called Odugbemi who bore two children called Dada Osoja, a female and grandmother of the respondents, and one Alimi Kelani, the former later came to be known as Odugbemi or Osoja family; in the course of time the respondents’ ancestors granted parcels of the disputed land to the appellants’ ancestors on terms as to payments of Ishakole, a form customary tribute paid in produce like yam and palm oil as well as cowries, which was then the medium of exchange but was later converted into cash, the medium of exchange brought by the advancement of civilization.

With the passage of time, Egudu grew into a village. For some time it had no Baale or village head. The constant harassment by thieves and robbers necessitated the appointment of a Baale among the villagers who were tenants of the respondents with the latter’s permission and blessing; after the death of the first Baale, one Alli Aina Abata, the appellants stopped payment of Ishakole or customary tribute to the respondents; when the time came to appoint a new Baale, the respondents refused to give their consent and approval until the arrears of the customary tribute was paid, therefore the appellants agreed with the respondents in writing to pay the arrears of the tribute as their customary tenants on account of which the respondents lifted the embargo on the appointment of a new Baale. The appellants appointed the new Baale, reneged on their promise to pay the arrears of the tribute and wrote through their solicitors denouncing the respondents as their overlords which prompted the suit at the court below.

The appellants’ case as defendants at the court below was that their ancestor, one Eguduwa, a hunter and farmer, migrated from the old Oyo town some three hundred years ago and settled at Oke-Igboku in Ado-Odo and later moved to Egudu as the first settler there were he planted economic trees like bitter kola, palm trees, kolanut and oranges on part of the land, while a portion thereof was used by him to farm seasonal crops. It was there that their progenitor procreated Olukade, Geere, Ogunbisi, Adeesi, Egunfunke, Egunleti and Ikuponji; that they produced three Baales of the village as of right or independent of the respondents who are not their overlords, nor did they enter into written agreement with the respondents acknowledging they are their customary tenants and in arrears of Ishakole or customary tribute.

The court below accepted the version of the respondents and entered judgment for them per their claims summarised in the course of the discussion. Dissatisfied, the appellants filed a notice of appeal with seven grounds of appeal on 23.5.96, which was amended by order of the Court and filed on 29.9.11.

From the nine grounds of appeal contained in the notice of appeal, the appellants’ learned senior counsel, Mr. Badejo, refined nine issues for determination in the further amended appellants’ brief of argument dated 29.9.2011, and filed on 29.9.11, but deemed properly filed on 10.10.2011, as follows –

“(i) Whether in the circumstances of this case, it was proper for the learned trial Judge to grant an Order of Injunction which was not claimed by the Plaintiffs – Ground 1 of the amended Notice of Appeal.

(ii) Whether the learned trial Judge was right to have treated and relied on the evidence of the 1st and 2nd Plaintiffs’ witnesses i.e. the 4th and 6th defendants as an admission against interest of the defendants in this case Ground 3 of the amended notice of appeal.

(iii) Whether in view of the evidence, Exhibit A was in fact made by the Defendants when there is no due execution of the said Exhibit A to accord with the relevant protection of the defendants as guaranteed under the Law – Ground 4 of the amended Notice of Appeal.

(iv) Whether the learned trial Judge was right to have relied on Exhibits B, G-G16, G17 to G27 and the negatives of the photographs in view of the evidence before the court – Ground 5 of the amended notice of appeal.

(v) Whether the learned trial Judge was right to have relied on Exhibits C, C1, CA, C1A and H1 in view of the irregularities and the specific findings of the Court that the 16th P.W. issued Exhibit CA, C1A and produced Exhibit H and H1 due to over enthusiasm to establish his case Ground 6 of the amended notice of appeal.

(vi) Whether the judgment of the learned trial Judge is against the weight of evidence – Ground 9 of the amended notice of appeal.

(vii) Whether it was right for the learned trial Judge to conclude that the evidence of 1st, 2nd, 3rd, 4th, 6th and 9th defendant witnesses as regards the grant of land made to them by the defendants goes to no issue in view of the pleadings and evidence Ground 2 of the amended notice of appeal.