Chief Samusideen Afolabi Ayorinde & Ors V. Chief Hassan Sogunro & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The respondents as Plaintiffs sued the appellants (defendants) on a writ of summons and statement of claim for:

1. A declaration that the plaintiffs are the persons entitled to customary right of occupancy in respect of the vast area of land situate lying and being of and around Idi Orogbo area, Ikija village in Ogun State of Nigeria.
2. A declaration that the 1st, 2nd and 3rd defendants are customary tenants of the plaintiffs.
3. Recovery of possession of the vast area of land situate, lying and being at and around Idi Orogbo area, Ikija village in Ogun State of Nigeria held under customary tenure in that the defendants committed acts inconsistent with and in defiance of the plaintiffs, refusing to pay annual rent/tribute and selling and leasing the said land.
4. Declaration that all sole or leases or purported sales or leases allegedly made by the defendants were null and void.
5. Perpetual Injunction restraining the defendants from further selling or leasing the said land. The annual rental value is N500.00

The case was tried on pleadings. In their statement of claim the plaintiffs traced their traditional history of the land in dispute, to IBARAGUN the founder of the Ibaragun land. The defendants traced their traditional history to KUNRUNMI; seven witnesses were called by the plaintiffs, while the defendants called five witnesses. In all six documents were admitted in evidence as exhibits, Trial commenced on the 28th day of March 1994 and was concluded on the 7th of December, 1994, Judgment of the High Court (trial court) was delivered on the 23rd day of February, 1995. In that judgment the learned trial judge found:

“That the ancestor of the Plaintiffs was Ibaragun while the ancestor and leader of the defendants was Kunrunmi, and that Kunrunmi paid Isakole as customary tenant to the Ibaraguns”

His lordship concluded that the plaintiffs are entitled to a customary right of occupancy, and granted all the plaintiff claims.

The defendants lodged an appeal. It was heard of the Court of Appeal, Ibadan Division. That court affirmed the judgment of the trial court and dismissed the appeal with N5, 000 costs against the defendants/appellants. This appeal is against that judgment.

In accordance with well settled Rules of appellate practice briefs were filed and exchanged. The appellants brief was deemed filed on 26/3/09, while the respondents brief was deemed filed on 4/12/09. An appellant’s reply brief was deemed filed on 9/2/11.

Learned counsel for the appellants’ formulated five issues for determination. They are:

1. Whether the evidence, Exhibit E and F admitted by the trial court with the consent of both parties and before the two lower courts was not a proceeding and, or judgment before the two lower courts, irrelevant and inadmissible within the purview of Section 34, sub-section (1) of the Evidence Act, Cap E 14, volume 6, Laws of the Federation, 2004 and was rightly excluded in the determination of the herein matter by the two lower courts.
2. Whether the lower court (Court of Appeal, Ibadan Judicial Division) was right to have held that the trial judge, Bakre, J observed, applied and relied on the Rule in Kojo II v. Bonsie 1957 1 WLR p. 1223 of 1226 in the determination of the herein action and, or finding for the plaintiffs, now respondents.
3. Whether in view of the available evidence on Record from both parties, the Rule and, or principle in Kojo II v. Bonsie 1957 1 WLR p.1223 at 1226 applies to the instant matter and ought to have been observed, applied and relied upon in the determination of this action by the two lower courts.
4. Whether the trial court had properly evaluated the evidence of the parties and their witnesses in the herein matter as to have precluded the lower court (Court of Appeal, Ibadan Judicial Division) from disturbing the findings and judgment of the trial court.
5. Whether the lower court was right to have held or confirmed that there had been no perversion or miscarriage of justice in the findings, conclusion and judgment of the trial judge.

Learned counsel for the respondents formulated two issues. They are:

1. Whether evidence of a deceased in a previous case, the judgment of which was later set aside on appeal, and a new trial held without the witness being called, is still relevant in the later proceedings under section 34 of the Evidence Act, and if so, to what extent.
2. Whether the plaintiff/respondents tendered evidence of such quality and quantity which entitled them to the reliefs sought.

I have examined the issues formulated by both sides.

I shall consider the issues formulated by the appellants’ in resolving this appeal as they appear to portray their real grievance.

At the hearing of the appeal on the 14th of February 2012 learned counsel for the appellants’, Dr. F. Jolaosho adopted the appellant brief deemed filed on 26/3/09 and reply brief deemed filed on 9/2/11 and urged this court to allow the appeal, Chief (Dr.) V.A. Odunaiya adopted the respondents’ brief deemed filed on 14/12/9 and urged this court to dismiss the appeal.

The findings of the learned trial judge are as follows:

1. Ibaragun founded Ibaragun land which included the land in dispute,
2. Ibaragun gave land to people around to settle which settlement later become the villages which included the area known as Ikija and now in dispute.
3. The people settled were all regarded as customary tenants and they paid tribute (Ishakole).
4. The ancestors of the plaintiffs/respondents was Ibaragun while the ancestor of the defendants/appellants was Kunrunmi and that Kunrunmi paid Ishakole as customary tenant to the Ibaraguns.
5. The relationship of overlord and customary tenants descended upon the descendants of Ibaragun and Kunrunmi respectively.
6. The claim for forfeiture succeeds and order of forfeiture is accordingly granted.
7. Since the defendants had no title, all sales, leases of purported sales or leases were null and void, and
8. The defendants are perpetually restrained from further selling or leasing the said land.

The Court of Appeal agreed with all these findings and dismissed the appeal, I shall now consider the issues for determination of this appeal. (i.e. the issues formulated by the appellants).