Alhaji Mohammed Buhari Awodi & Anor V. Mallam Saliu Ajagbe (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Ilorin, delivered on 20th June, 2007 wherein it affirmed the decision of the appellate session of the Kwara State High Court. A brief fact of the case leading to this appeal will suffice.

On 3rd July, 1996, the original plaintiffs, now respondent sued the original defendants, now appellants at the Upper Area Court I, Ilorin claiming the following reliefs:

1. A declaration that the Plaintiffs family in Ara Village, Kwara State Polytechnics Permanent site Area near Ilorin are the customary Holders/Owners and possessors of all the parcel of land stretching from Ara Village to Odogori, having an area of 133.267 hecters – part of which the defendant has trespassed upon particularly around Gaa Area Ile-Oganga River.
2. A declaration that the sale of many parcels of the said land and allocation of some other parts to people – whose names are yet to be known to the plaintiffs without the prior consent and approval of the plaintiffs is null and void.
3. General damages of Five Thousand Naira (N5,000.0) against the defendant for trespass he committed on the aforesaid land by illegally selling parts of the lands and plucking the locust beans of the plaintiffs on parts of the aforesaid land.
4. An order of perpetual injunction against the defendant, restraining him, his servants, agents or privies or his heirs from entering any part of the aforesaid plaintiffs’ land.

In reaction to the above claim, the appellants as defendants denied the claim of the plaintiffs and filed their counter claim on behalf of themselves and Ogbanga family as follows:

1. A declaration that defendant’s Ogbanga family are the owners of the piece or parcel of land situate and being at Ara Village bounded by Liman, Gaa Abubu, Odo Gori Ogangan, Ologbojo and Magaji Opoopo respectively.
2. The sum of N10,000.00 only being damages for trespass against the plaintiff in respect of the aforesaid piece or parcel of land.
3. An order of perpetual injunction restraining the plaintiff either by himself, his servants, agents, privies or any person or persons howsoever from trespassing or committing further act(s) of trespass on the defendants’ family land above described.

After hearing evidence from both parties for and against their respective claims and counter-claims, the trial Upper Area Court held as follows on page 167 of the record of appeal:

“In our view in the faces of acts of ownership exercised by both parties as highlighted above in the evidence of the parties in the open court and during the visit to the locus and especially as pointed to us by the DW III which both parties agreed with him, we believe that each of the party have been exercising acts of ownership which spanned for a long time, we hold that both parties have established before the court act of ownership and user of the land in disputes, even though the story of the plaintiff on the traditional history is more convincing than that of the defendant. And also since the plaintiffs claimed and the defendants counterclaimed, the burden is squarely on both sides to adduce credible evidence in support of that title … since the plaintiffs are claiming the whole Ara and the defendants are claiming part thereof, we hold that from the totality of the evidence before us, both parties have pieces or parcel of land at Ara.

We therefore hold that from the totality of the evidence before us, and what was shown to us at the locus, and having regard to the findings in this case reached on the balance of probability, we believe that both parties in this case have land at Ara.”

The trial court then held that both the claim and counter claim succeeded in part.

The appellants herein, being dissatisfied with the decision of the Upper Area Court, filed an appeal to the appellate session of the High Court of Kwara State, Ilorin. The respondents herein, were also dissatisfied with the said judgment and also cross-appealed. In its judgment, the appellate High Court held inter alia as follows:-

“It was because none of the parties disputed each other’s claim as shown by the boundaries that made the court to draw up a sketch map showing each party’s claim as limited by the accepted boundaries. We agree therefore that the court was justified in awarding each proved portion of the land to each party … and since the two parties agreed to the boundaries shown to the court during the visit to the locus in quo, each party was entitled to a declaration in respect of the parcel falling within his own boundary. The respondents/counter claimants could not ask for a declaration in respect of the whole parcel of land. They are only entitled to the portion established by evidence and which falls within their own boundaries …”

Again, the appellants were dissatisfied with the judgment of the High Court. They further appealed to the Court of Appeal which upheld the judgment of the two previous courts on issue of long possession but set aside their findings on traditional history. The respondents also cross appealed. The lower court also found no merit in the cross appeal. Both the appeal and the cross appeal were dismissed.

Being dissatisfied with the judgment of the lower court, the appellants have further appealed to this court upon notice of appeal filed on 26th July, 2007. The said notice has three grounds of appeal out of which the appellants have distilled two issues for determination. The two issues are as follows:

1. Whether upon failure of the plaintiff who relied on traditional history to establish his title, reliance can be placed on act of possession.
2. Whether the court can grant a relief not claimed by both parties.

The respondent has also decoded two issues for the determination of this appeal and are couched differently thus:

1. Whether it is just and right for the lower court to interfere with the concurrent findings of fact of the two courts below on the issue of prove of title by traditional history on the one hand and thereafter uphold another concurrent findings of fact of the same court as regards prove of title by acts of ownership and long possession on the other hand.
2. Whether in view of the claim and counter claim of the parties to the land in dispute, the concurrent decision of the three courts below in awarding same to each party to the extent of what was proved can be faulted on grounds of not being solicited for.

As can be seen here, the two issues formulated by the appellants are in tandem with those of the respondent but couched differently. I shall determine this appeal based on these two issues.