Baro Bajoden & Anor V. Enock Iromwammu & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiffs, now respondents, sued the appellants as defendant, in the Ondo State High Court, holden at Ondo and claimed as follows:-

“1. Declaration of title to and possession of all that piece or parcel of land, bush and water called Uba Ikorigho now known as Otumara Mogun Ohen situate, lying and being at Odonla Town in Ugbo area in Okitipupa Division.

2. Perpetual injunction restraining the defendants, their servants, agents and/or all persons claiming through them from entering or doing any act e.g. cutting trees or harvesting fishes in the river upon the said land, bush and water.
3. N1,000 or (500pounds) being General Damages for trespass committed by the defendants upon the piece or parcel of the said land, bush and water.”

After the filing and exchange of pleading the case proceeded to trial. At the trial the respondents called three witnesses while the appellants called two. The facts are straight forward. The respondents claimed that their ancestor – one Tapa, who, originally came from Ile-Ife was the first to settle at IKorigho. He came from Ugbo. Tapa begat Ogunro. Ogunro had three children called Ogunje, Aiyerin and Ehinmosan who were born at Ikorigho about 200 years ago. They said the appellants who are Binis from Bendel State are not related to them by blood. That the ancestors of the appellants met Ogunje, Aiyerin and Ehinmosan on the land in dispute fishing.

The appellants’ ancestors then took permission from Ogunro’s children above to fish in the waters and to build floating houses at Ikorigho which they were permitted to do.The appellants on the other hand said it was their ancestor who first settled at Ikorigho. That their ancestors are Kanikan, Okunbo, Mogun-Ohen, and Bajoden (called Bazuaye or Obazuaye). They said it was their ancestor Bajoden, who permitted plaintiffs/respondents’ ancestorto fish at Ikorigho. Gin a reserved judgment the learned trial judge, Ogunleye J. entered judgment in favour of the respondents for a declaration of title to land in respect of claim (1) above, while claims (2) and (3) were dismissed or refused.

The appellants dissatisfied with the judgment of the High Court appealed to the Court of Appeal holden at Benin-City. Four grounds of appeal were filed and the following issues were submitted for determination –

“(i) Are some of the findings of fact made by the learned trial judge and the conclusions reached on those findings justified by the evidence on record to entitle the plaintiffs/respondents to judgment

(ii) Are the plaintiffs/respondents entitled to judgment for a declaration of title on the strength of the evidence adduced by them in support of their claim as shown on the printed record

(iii) Whether the plaintiffs/respondents have proved their title under customary law as held by the learned trial Judge.

(iv) Whether the learned trial Judge was right in holding that the defendants/appellants sought and obtained the permission of the descendants of Tapa to fish at Ikorigho.”

The Court of Appeal for reasons which cannot be justified on the record preferred to treat the grounds of appeal rather than the issues. Since the issues themselves must and did flow from the grounds of appeal, I find nothing wrong or unfair with that option as contended by appellants’ counsel.

The Court of Appeal carefully considered all the four grounds of appeal (and therefore the four issues above) and came to the conclusion that the appeal failed and dismissed it. Dissatisfied with judgment of the court below the appellants lodged a further appeal to this court.

Both sides filed and exchanged briefs which were adopted at the hearing.

The following issues are set down in the appellants’ brief for determination –