Chief James Oluseyi Olonade & Anor V. H. Babatunde Sowemimo (2014)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the judgment of the Ibadan Division of the Court of Appeal hereinafter referred to as the court below, affirming the decision of the Ogun State High Court, hereinafter referred to as the trial court. The Judgment of the court below being appealed against was delivered on 28th day of May, 2003. The trial court’s decision the court below affirmed was delivered on 29th July, 1998. The facts of the case that brought about the appeal are as hereinunder summarized.

The appellants as plaintiffs at the trial court, for themselves and on behalf of the Ijesha Community of Abeokuta, sued the respondent who, in addition to being the defendant, also counter-claimed for himself and on behalf of the Joseph Sowemimo Family. Appellants’ claim as contained in paragraph 35 of their further amended statement of claim is for forfeiture, declaration of title, damages and injunction. Respondent’s counter claim is for declaration of title, damages and perpetual injunction in respect of the same piece of land to which appellants’ claim relates. The appellants testified and called four other witnesses in support of their case. They also tendered one document. In defense of the case and proof of his counter-claim, the respondent testified and called six witnesses. He tendered thirteen exhibits, three of which were through PW6, the first appellant.

Plots No. 82 and 86 along Sokenu Road at Oke Ijeun in Abeokuta are in contention between the parties. The appellants assert that the plots form part of the land granted by the Egbas to Ijesha people led by their ancestor Adeleke; that after the grant to them by the Egbas, the Ijeshas have continued to exercise various acts of ownership in relation to the parcel granted to them which acts include grants to many people with respondent’s father, Sowemimo, being one such beneficiary. The grant made to Sowemimo by the appellants’ ancestors is under customary tenancy.

It is also appellants’ case that respondent’s father had built two houses on the land in dispute and, contrary to the terms of the tenancy between them, abandoned the two plots. This explains the re-entry into the land by the Ijesha people who thereafter let the two plots to one Alhaji Saubane Olaogun, the Asiri Abo. The said Olaogun has developed the two plots and rents same out to tenants on behalf of the Ijesha Community.

The respondent, on the other hand, claims that his father derived title to the two plots following absolute grant by Ijeun people, the original owners. The grant to respondent’s ancestor was made many years before the settlement of the Ijesha Community on a nearby land. The respondent denies his father ever being a tenant to the Ijesha Community. He insists that the appellants are trespassers.

In a considered decision, the trial court found that the Ijeshas were not the original owners of the land in dispute and that Sowemimo, respondent’s father, had built his two houses on the land in dispute which he acquired from the Ijeuns long before the settlement of the ljesha Community in Abeokuta. The court further held that there couldn’t have been any customary tenancy, therefore, between the Ijeshas and respondent’s father. Consequently, the court dismissed appellants’ claim and granted respondent’s counter claim in part. It is the dismissal of the plaintiffs appeal against this court decision of the trial court by the court below that brought about the appeal to which this judgment relates. The Notice of Appeal filed on 11th August, 2003, contains five grounds.

Parties have filed and exchanged their briefs of arguments as required by the rules of court. At the hearing of the appeal on 24th February 2014, the said briefs, including appellants’ reply brief, were adopted and relied upon by counsel as parties’ respective arguments for or in opposition to the appeal.

Respondent’s brief contain arguments on the preliminary objection he earlier filed against the competence of the appeal. Learned respondent’s counsel did not however formally move this Court at the hearing of the appeal to now enable the court decide one way or the other on the preliminary objection. In the circumstance, respondent is deemed to have abandoned the preliminary objection and same is hereby accordingly discountenanced. See: Iliya Akwai Lagga v. Audu Yusuf Sarhuma (2008) 6-7 SC (Pt 1) 101, Contract Resource Nig Ltd v. United Bank for Africa Plc (2011) 6-7 SC (Pt 111) 150.

The three issues formulated at page 5 of the appellants’ brief read:-

“(1) Whether the Justices of the Court of Appeal were not wrong or committed misdirection of law when they confirmed the granting of the Respondent’s counter-claim based on two contradictory roots of his title to the land in dispute (Ground 1).

(2) Whether the learned Justices of the Court of Appeal were not wrong in confirming the judgment of the trial court based on acts of possession as opposed to the unproved root of title as pleaded. (Grounds 4 and 5).

(3) Whether the Justices of Appeal (sic) were not wrong in their holding that although the learned trial judge directed the visitation to the locus-in-quo, the failure to eventually visit the locus in quo before judgment did not occasion miscarriage of justice (Ground 3).”

The respondent has adopted the foregoing three issues as those calling for consideration in the determination of the appeal.