Chief L.K. Ajibare & Anor V. James Akomolafe & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of D.O Jegede, J of the Ekiti State High Court sitting at Ikere-Ekiti delivered on the 13th day of May, 2009, wherein the learned trial judge granted all the reliefs sought by the Respondents, who were plaintiffs at the lower court. The Appellants who were sued for themselves and on behalf of the Ejimo family of Okekere Quarters, Ikere-Ekiti were defendants at the lower court. The Respondents as plaintiffs at the lower court also sued for themselves and on behalf of Sapetu Ibariba family of Okekere Quarters of Ikere-Ekiti.

Briefly, the Respondent’s case at the lower court is that, the Sapetu Ibariba family- whom they represent is seised of a large expanse of land situate at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti under native law and custom from time immemorial, and that the said family has been exercising various acts of ownership and possession thereon without any let or hindrance. It is also their case that the land in dispute was subject of litigation between their family and that of the Appellants, sometimes in 1989 before the Ekiti South Grade 1, Customary Court, Ikere-Ekiti in Suit No. IC/346/89 between CHIEF DAVID POPOOLA VS CHIEF S.B. FAGBUAGUN. That in that suit, the Appellants’ family was the plaintiff, wherein they claimed damages for trespass and a perpetual injunction, but the suit was dismissed. That the Appellants appealed that decision to the High Court which further affirmed the decision of the Customary Court. The Respondents then contend that to their surprise, they discovered that, sometimes in 2004, the Appellants unlawfully entered the land in dispute, cleared same and constructed a road thereon without their consent. The Respondents then took out a writ of summons against the Appellants at the lower court, dated the 1st day of June, 2004 and filed the same day, wherein they sought the following reliefs, as contained in paragraph 18 of the Amended statement of claim dated the 3/06/2008:

(a) A declaration that by the judgment of the Ekiti South Grade 1 customary court, Ikere-Ekiti in suit No: IC/346/89; CHIEF DAVID POPOOLA VS CHIEF S.B. FAGBUAGUN delivered on 6th July, 1990 and affirmed by the High court, Ikere-Ekiti in suit No: HCR/11A/1990 on 18th February, 1991, the defendant is estopped from laying any claim of ownership and from carrying out any act of trespass by way of leasing or cultivating or constructing a road or erecting any structure or doing anything to any portion of the land situate, lying and being at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti.

(b) A declaration that all that large parcel of land situate, lying and being at Igbolo-Ekiri farmland along Ise Road, Ikere-Ekiti belongs exclusively to the Sapetu lbariba family of Okekere Quarters, Ikere-Ekiti and the said family is entitled to Customary right of occupancy in respect of same.

(c) N2.5 Million general damages for trespass committed by the defendant on the aforesaid plaintiff’s farmland which said trespass consists of illegal and unlawful entry upon the plaintiff’s aforesaid farmland and deforestation of same and which trespass still continues.

(d) An Order of perpetual injunction restraining the defendent, his agents, servants, privies or whoever name called from further trespasbing on the land/or dealing with the aforesaid farmland in such a way and manner as would interfere with the plaintiff’s family ownership right, title and interest in the said family land.

The Appellants as Defendants at the lower court filed an Amended Statement of Defence dated 3rd November, 2008 and filed the same day, to which the Respondents as plaintiffs filed an Amended Reply dated 10/11/2008 and filed the 12/11/2008. Issues were therefore joined and the suit proceeded to hearing.

At the trial before the lower court, evidence was led on behalf of the parties and several documents tendered and admitted as exhibits. At the close of evidence, the parties filed Written Address and the matter adjourned for judgment. In a considered judgment delivered on the 13th day of May, 2009, the learned trial judge gave judgment in favour of the plaintiffs and granted all the reliefs sought by them. The Defendants (now Appellants) are dissatisfied with the judgment of the lower court and have now filed this appeal seeking that the said judgment be set aside. I wish to point out that during the pendency of this appeal, the original Appellant, James Olasehinde Elero, died. Consequently, the Appellants by a Motion on Notice dated the 28/7/2010 and filed the 09/08/2010, sought for the leave of this Court to substitute his name with those of CHIEF L.K AJIBARE and PA JACOB A. ADENIYI and leave was granted them to do so on the 18/10/2010. The processes were accordingly amended to reflect such substitution.

The Grounds of Appeal and the particulars in support thereof are contained in the Appellants’ Notice of Appeal dated the 1st day of August, 2009 and filed the 12th day of August, 2009. I propose therefore to reproduce the said Grounds of Appeal for ease of reference, but without their particulars. They are:

1. The learned Trial Judge erred in law by holding that the plaintiffs proved their case for declaration of title to land having established that onerous task of proving their case when apparently the evidence led by the plaintiff was not only weak but riddled with inconsistencies.
2. The Learned Trial Judge erred in law by holding that the plaintiffs are entitled to their relief for a declaration that they are entitled to customary right of occupancy in respect of the land lying, situate and being at Igbolo Ekiti (sic) along Ise Road,

Ikere-Ekiti despite the fact that the area over which the declaration was sought was not proved.

3. The Learned Trial Judge erred in law by relying on the defense of the defendant to boost the weak case of the plaintiffs upon which they were granted declaration right contrary to the well established legal position that for a plaintiff to succeed in a declaratory relief, he must offer credible evidence.
4. The Learned Trial Judge erred in law by placing reliance on exhibit “A” and “B” which are previous judgments in respect of disputes between the plaintiffs and defendants upon which the lower court predicated its judgment which said exhibits did not relate to the title to the land in dispute.
5. The Learned Trial Judge erred in law and or misdirected himself failing to appreciate the case put forward by parties when he confused the contents of Exhibit “A” with the case put forward by parties which evidence relates to the settlement of the parties in their places of abode which is clearly different from the land in dispute.
6. The Learned Trial Judge erred in law by relying on irrelevant facts not pleaded in arriving at his decision.
7. The Learned (sic) erred in law by holding that the defendant did not put forward a defense to the plaintiffs’ claim as far as the disputed land was concerned despite the filing of the statement of defence disputing and denying plaintiffs’ claim.
8. The decision of the lower court is against the weight of evidence.

As required by the Rules and Practice of this Court, parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument which is dated the 22nd day of July, 2010 and filed the 22/10/2010 is settled by Chief A.A Adeniyi of Counsel. The Respondents’ Brief is settled by Bamidele Omotoso Esq., and is dated the 12/11/2010 and filed the 23rd of November, 2010. The Appeal was then heard on the 16th day of February, 2011.

At the hearing of the Appeal, Chief A.A. Adeniyi of learned Counsel for the Appellants adopted the Appellants’ Brief of Argument dated the 22/7/2010 and deemed filed the 18/10/2010. He further cited the case of DADA V BANKOLE (2008) 3 M.J.S.C. P.1 at PP. 14 – 15 as additional authority and urged us to allow the appeal, and set aside the judgment of the lower court. Equally, Mr. Bamidele Omotoso of Learned Counsel for the Respondents adopted the Respondents’ Brief of Argument dated the 12/11/2010 and filed the 23/11/2010. He then urged us to dismiss the appeal and to affirm the judgment of the lower court.

In the Appellants’ Brief of Argument, four (4) issues were distilled for determination from the eight Grounds of Appeal set out in the Notice of Appeal. They are as follows: