Alhaja Muinat Odumosu & Anor V. Taiwo Oluwole & Anor (2002)

LawGlobal-Hub Lead Judgment Report

O. ADEKEYE, J.C.A.

This is an Appeal against the judgment of the High Court of Ogun State, Sagamu Judicial Division, delivered on the 29th of September 1994. The Plaintiffs, Taiwo Oluwole and Alhaji Kasumu Bisi representing themselves and the Legushen Family of Offin Sagamu, Ijebu-Remo in Ogun State, now Respondents in this Appeal claimed against the Defendants Alhaja Muinat Odumosu and Madam Muyibat Oyekan, now Appellants, before the High Court in Sagamu the following relief’s: –

1. A Declaration that the Plaintiffs are entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being along Onyagba Street Legunshen Family land – Offin, Sagamu Ijebu- Remo Ogun State of Nigeria which land is more particularly described and edged “Yellow” on the attached Plan No OG 60/73 drawn by S. Akin Ogunbiyi Licensed Surveyor.
2. The sum of Twelve Thousand Naira (N12, 000) being special and general damages for trespass committed by the Defendant, his agents and servants on the land in dispute.
3. Perpetual injunction restraining the Defendant by himself, his agents and servants from committing any further acts of trespass on the land in dispute.

In the suit filed at the lower court parties filed and exchanged pleadings. The case proceeded to hearing on the amended statement of claim and amended statement of defence and reply to amended statement of defence. The facts at the disposal of the trial court were that the Respondents as Plaintiffs rested their root of title in respect of a large tract of land at Offin Sagamu Ijebu-Remo on traditional evidence that their ancestors Onasanjo and Okumala came from Orile-Offin, crossed Erebunu Stream, to settle on this vast area of land now known and called Legunshen Family land. The land in dispute between the parties forms part of the land. The family land extended beyond Erebunu Stream up to the place now called Ijagba in Offin Sagamu. Onasajo and his brother Ikumala led members of the Legunshen family from Offin homestead (Orile Offin) to Sagamu along with Akarigbo Igimisoje due to inter-tribal wars. They used the area known as Legunshen quarters Offin Sagamu for residential purpose; they retained their respective farms which they were using before they moved to Sagamu across Erebunu Stream including the land in dispute. Onasajo and Okumala enjoyed undisturbed possession of their land until their death when the land devolved on their children and grandchildren including the Plaintiffs now Respondents. The Legunshen family had granted parcels of their land to members of their family and strangers for residential purpose. Records of such grants were kept in the Family records by the family secretary. The family had exercised maximum acts of ownership on their vast area of land undisturbed until June 1971 when Olayiga Balogun, Osolabi Adesina and Yekini Saka came to erect a saw-mill industry on the land. The three people traced their claim to the land, otherwise known as Legunshen land through purchase from one Bisiriyu Kadiri, the father of the Appellants. Bisiriyu Kadiri claimed to have bought a large parcel of land including the land in dispute from Salu Odojukan, a principal member of Legunshen family in 1948. As the Respondents had no records of such sale, they resisted the occupation of the land and authorised one Chief Buraimoh Awofala to file an action in court against the three people in the Customary Court until Bisiriyu Kadiri died in 1973. There were series of actions in court in respect of alleged trespass into the Legunshen family land until 1984 when the Appellant commenced erection of buildings on the land. The Appellants based their claim and ownership of the land on a Court Judgment. Both parties raised Suit Nos. AB/85/71, No 708/56, Appeal No 74/57 and HCJ/46/77 as Res Judicata as parties’ issues and subject-matter are the same as the present action. The Respondents abandoned the claim for damages for trespass in their amended statement of claim vide pages 4-24 of the record. The learned trial Judge in his considered judgment found for the Respondents in terms of the reliefs claimed in their Amended Statement of Claim.

Being dissatisfied with the decision of the trial court the Appellants appealed to this Court. Parties settled Records and exchanged Briefs. The Appellants in their Notice of Appeal had six amended grounds of appeal from which he formulated five issues for determination as follows:-

1) Whether having regard to the Respondents’ pleadings on traditional evidence being the only mode of ownership considered by the court, the facts of ownership by inheritance as averred and evidence led in support thereof are sufficient to support a Claim for declaration of title.

2) Whether paragraphs 1, 22 and 24 of the amended statement of defence amount to mere and not specific denial of the traditional evidence as averred in paragraphs 3, 6, 7 and 27 of the amended statement of claim and if so;

Whether a declaration of title to a piece of land can be granted solely on the basis of admissions in pleadings.

3) Whether the Respondents established the identity of the land in dispute with certainty as to entitle them to the declaration and injunction sought and if the answer is in the affirmative, whether the Order of injunction was rightly made having regard to the circumstances of the case.

4) Whether the learned trial Judge was right in holding that the land in dispute herein is the same as the land in dispute in Suit No 1 AB/85/71 otherwise called 1971 case.

5) Whether the learned trial Judge properly evaluated the evidence.

The Respondents however distilled only one issue for determination as follows: –

Whether or not the Legushen family had divested themselves of their title to the land in dispute through the sale of a larger piece of land including the land now in dispute to Bisiriyu Kadiri by Chief Saliu Odojukan as pleaded in paragraphs 6 and 7 of the amended statement of defence.

The issue is said to have arisen from ground 4 of the Appellants’ ground of appeal. The Appellants’ counsel asked the Court to grant him the indulgence of adopting his Arguments in Issue No 5 of the Appellant’s issues for determination, in the Appellants’ brief to cover this sole issue.

The court shall adopt the five issues for determination as distilled by the Appellants.