Chief Oladapo Akinde V. Raphael Ogundirahun (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of O. O. Akeredolu J., sitting at the Akure Judicial Division of the High Court of Justice, Ondo State, which judgment was delivered on 5/12/2009.

The appellant as plaintiff before the customary court at Idanre claimed against the Respondent for the following reliefs:

1. A declaration that the plaintiff is entitled to the grant of customary right of occupancy over the land lying situate and being at Isagun – Saro High Hill, Idanre which is bounded on the right side by Olofin Grammar School, on the left side by Late Herbert Olubodun Farm, on the topside by High Chief Ologbosere layout and on the bottom by root path.
2. A declaration that all previous sales of land by the defendant null/void and of no effect.
3. N1,000 damages for trespass committed by the defendant his servants, agents privies, or otherwise however from interfering, entering and/or trespassing unto plaintiff’s land the subject matter of this action.
4. A perpetual injunction restraining the defendant his servants, agents, privies or otherwise however from interfering, entering and/or trespassing unto plaintiff’s land the subject matter of this action.

The respondent also filed a counter – claim before the lower court, the customary court as follows:

1. A declaration that the Defendant is the person entitled to the customary right of occupancy over the land which situates and being at Isagun/Saro Idanre which land is more particularly described as follows:

i. The land is bounded on the 1st side by Olofin Grammar School’s land.

ii. On the 2nd side it is bounded by the land of the Late Chief Olubodun.

iii. On the 3rd side it is bounded by the property of the Baale of Arapa

iv. On the 4th side it is bounded by the land of one Chief Olagidi (Now deceased).

2. Perpetual injunction restraining the Defendant his Servants, agents privies from committing any acts of trespass upon the land, which is the subject matter in this suit.

The case of the appellant in the lower court (customary court) is that his great grandfather Balogun Oyokuremo and his grandfather High Chief Logbosere Akinde left Oke Idanre to settle on the land at Isagun/Isaro. Upon the demise of his great grandfather, his grandfather inherited the land. His grandfather had 30 wives and many children. When his grandfather died the land could not accommodate his father’s farm and Martin Akinde’s farm. His father moved to another location leaving Martins Akinde on the land. Martins Akinde was married to Rebecca, the Respondent’s sister. Both Martins and Rebecca Akinde are dead. The respondent continued farming on the land without disturbance from the appellant until appellant was informed that the respondent was selling the land. Appellant also told the court that he is not related to Akinde family through his mother but that he is a son of Logbosere Akinde.

The respondent case is that the land originally belonged to his father and that he had been on the land before his father died. He had been on the land since 1940 without any challenge. He planted mangoes, coffee, yam among other things on the land. In 1997, Olofin Grammar School encroached on the land and he wrote a letter (Exhibit A) to the Board of Governors of the School.

He placed caretakers on the farm to look after his crops. He denied that appellants father had a on the land. He gave the name of appellant’s father as Julius who had a farm in Laisa. He gave a portion of the farmland to Martin Akinde his brother – in law in 1959. The portion he gave to Martin Akinde is next to his boundary with Olubodun. He sold portions of land to Benson Omoniyi, Mr. Akinladejo, Mrs. Dorcas Oladugba Mr. Johnson Adesemoye and Mr. Akintorinwa.

In support of his claim, the appellant testified and called two witnesses. The respondent gave evidence and also called two witnesses.

After the close of evidence the court and the parties visited the locus in quo and counsel on both sides thereafter furnished their final addresses. The trial court’s findings are as follows:

1. The evidence on record shows that the father of the plaintiff was called Julius Oladapo, Logbosere Akinde was the father of the plaintiff’s mother. The plaintiff has maternal relation with Logbosere Akinde under customary law, the plaintiff is not entitled to the claim being sought.
2. Nobody from the biological paternal lineage joined the plaintiff in suit, Idanre culture and custom is patrineal (sic) patrilineal
3. All lands in Idanre belongs to Owa of Idanre land, but when you open up a virgin land and plant permanent crops like Koko, Kola and Citrus, that portion belongs to the person that owns the crop.
4. Albart Olubodun, Chief Olayidi, Mr. Francis Akintorinwa PW2, all have their farm and share boundaries with the disputed land located at Isegun – Sare. This means that Isagun – Sare does not belong to a single family but to Owa of Idanre land.
5. The grandfather of the plaintiff and the plaintiff did not have any landed properly, crops either cash or permanent on the disputed land but the defendant had (sic) has.
6. The defendant had been on the disputed land since 1940 i.e 67 years ago and had been exercising all rights of ownership and effective occupation over the disputed land without any molestation or challenge from anybody.
7. Exhibit ‘A’ tendered by the defendant confirmed that when Olofin Grammar school was encroaching on the disputed land, he wrote to the Board of Governors chairmaned by the plaintiff then to check or warn the Board of Governors for their encroachment. This shows that he does not sleep over his right.
8. PW1, High Chief Mrs. Olagidi under cross examination said that the defendant has been following her sister to the farm for over 40 years and that the defendant entered the land in dispute 6 years ago while PW2 Mr. Francis Akintorinwa said he had never set his eyes on the defendant on the disputed land. PW1 and PW2 statements are contradictory. The court opines that they are not witnesses of truth and their evidence should be discountenanced.
9. DW3 Mrs. Yemisi Osobade (nee Akinde) the biological daughter of Mr. Martins Akinde gave evidence that the disputed land does not belong to Akinde family and that the defendant brought is father Martins Akinde to the land in dispute. The court opines that this is the correct truth.
10. Court findings during the visit to locus – in – quo confirmed that the defendant has cocoa, kola and citrus trees that are very old due to old age, the land in dispute was demarcated some boundary with life trees such as ‘Atori’ which is typical and in conforming with the tradition system of boundary making in Idanre native law and custom.
11. The plaintiff has nothing to show as being his landed property on the land in dispute during the visit to locus – in – quo.
12. The court opines that apart from all the aforesaid, the plaintiff has acquiesced whatever right if any defendant has been exercising all rights of ownership since 1940 without any record of challenge on the land in dispute.

The trial court disbelieved the plaintiff and his witnesses, accepted the evidence of the defendant and his witnesses and found in favour of the defendant counter claim.