Chief Dauda Oloro & Anor V. Mr. Olu Olabode Kayode-olawolu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Ondo State High Court, Owo Division delivered on 29th June, 2004 by Fadoju, J. in, Suit No. HOW/6A/98.

The Appellants were the 2nd and 3rd Defendants in Suit No. OW/CC1/15/97 before the Customary Court 1, Owo, Ondo State. The Respondent was the plaintiff who sued 3 Defendant’s on behalf of himself and Owotoyinbo family. The claim of the Respondent was as set out on the record as follows:

(a) The sum of N2,000 (Two Thousand Naira) being special and general damages for crops such as Timbers, Oranges, Palm trees etc destroyed and/or harvested without plaintiffs consent;

(b) A declaration that the family of Late Owotoyinbo of Owo was entitled to a customary right of occupancy of the land being at Iworo Camp vis Ojana, Owo and which land was bounded as follows;

(i) on the 1st side by the land of one Chief Asema –

(ii) On the 2nd side by River Obinrin

(iii) On the 3rd side by a footpath leading to Ojana, and

(iv) On the 4th side by River Orungba.

(c) An order forfeiting the interest of the Defendants, their agents, privies and servants in the disputed land and for the plaintiff to regain possession of same since the land, was granted to the Defendants’ privies and agents without the plaintiff’s consent; and

(d) An order restraining the Defendants, their agents, servants and privies from parading themselves as customary tenants of the plaintiff or as owners of the disputed land.

The matter went to trial according to the extant rules of the Customary Court. A series of witnesses gave oral testimonies on both sides of the divide. A number of documents and were also tendered and admitted in evidence. Also, as part of the trial the court moved to the locus in quo on 2 occasions and took some oral evidence of witnesses. At the end of the very exhaustive proceedings, respective learned counsel addressed the court and the matter was adjourned for judgment. Meanwhile the 1st Defendant then on record, Mr. Jimoh Oforo died.

In a very well considered judgment delivered on 6th May, 1998 the trial Customary Court, upon its views and observations on the totality of evidence adduced before it found for the plaintiff against the remaining 2 living Defendants. The judgment was in the following terms:-

1. The plaintiff, on behalf of Owotoyinbo family members is hereby granted the ownership and Customary right of Occupancy of the farm land lying and situate at Iwaro Camp on Ojana Road, Owo, as bounded in the claim;
2. The defendants, their agents and privies shall hereby forfeit their rights of tenancy forthwith;
3. The defendants shall pay to the benefit of the Plaintiff the sum of One thousand Naira only (N1,000) as general damages;
4. The defendants shall also pay to the benefit of the plaintiff (N250), Two Hundred and Fifty Naira only as cost; and
5. The defendants his (sic) agents and privies are henceforth restrained from further activities on the said farmland: (See page 68 record of appeal).

The Defendants were dissatisfied with this judgment and appealed to the Ondo State High Court in a notice of appeal dated 29th May, 1998 but filed on 1st June, 1998. The notice was predicated on a lone omnibus ground that the judgment was against the weight of evidence. The High Court granted leave for additional grounds of appeal to be filed. Four additional grounds were accordingly filed. After so much delay the appeal was fully argued some time in 2004.