Chief Sarafa Oyelade V. Pa Daniel Ilupeju & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A (Delivering the Leading Judgment)

This is an appeal by the defendant/appellant against the judgment of O. A. Ojo J. of the High Court of Osun State sitting at Ejigbo delivered on the 27th day of October, 2005. In their amended writ of summons the plaintiffs/respondents claimed as follows:-

(i) A declaration that the plaintiffs are the persons entitled to the statutory right of occupancy of All that parcel of land situate and being at Oke-Ogun area along Ijado Road, Ejigbo Local Government of Osun State which land is shown on survey plan No. OS/0823/98/D/008 drawn by O.K. Oluokun Registered surveyor dated 28th day of April, 1998 and thereon edged yellow.

(ii) N5000 000.00 (Five hundred thousand naira only) damages for trespass committed on the said land on or about the 8th day of April, 1987 and still being committed when the defendant, his agents and/or servant wrongfully entered the said land for the purpose of harvesting palm fruits and destroying/damaging farm products belonging to the members of the plaintiffs’ family.

(iii) Injunction restraining the defendants, his privies, agents and/or servant from further trespass on the said land or any part thereof.

Pleadings were filed and exchanged, viz amended statement of claim and amended reply to the statement of defence both dated and filed on 26/1/04. Further amended statement of defence dated 28/1/04 and filed on 3/2/04

The respondents’ case at the lower court as can be deduced from their pleadings at page 6-13 of the record is that they have been owners of the land in dispute from time immemorial when their ancestor Ogunsosin settled thereon; that their ancestor, Ogunsosin migrated from Otamokun and settled on the land in dispute; that both Ogunsosin (respondents’ ancestor) and Ogunyori (appellant’s ancestor) were brothers and both migrated from Otamokun and settled on different parcels of land adjacent to each other separated by the ‘Ose’ river which formed a natural boundary between them putting the Respondents’ land to the South and the appellant’s to the North; that since the settlements, both descendants of Ogunsosin (respondents) and descendants of Ogunyori (appellant have always been in exclusive possession of their respective parcels of land without let or hindrance from either side nor from outsiders. Since the settlement, the descendants of Ogunsosin (respondents) exercised rights of ownership on the land in dispute which included planting of various cash crops, giving out portions of the land to tenants, extraction and smelting of iron with its relics evident on the land.

Acts of ownership within living memory include the grant of part of the land in dispute to Ejigbo Muslim community to use as Muslim cemetery and another portion to AUD Primary School in recognition of which a school house was named after the respondents’ family (Ilupeju House). The respondents claimed that this suit was instituted because of false claim of ownership of the land in dispute and several acts of trespass thereon by the appellant in 1997 such as attempts to harvest palm fruits, illegal and wrongful allocation of portions of the land to some unsuspecting individuals, prevention of the respondents family members from continuing to farm on the land and illegal destruction of farm produce on the land.

The appellant’s case on the other hand is that the land in dispute forms part of a larger area of land granted to and put in care of the appellant’s family (holding the Chieftaincy title of Ejemu of Ejigbo) by the Ogiyan of Ejigbo. The said land he claimed was originally granted to and put in care of their original ancestor, Ogunniran Mokumo (who migrated from Otamokun) by Ogiyan Ondoye over 300 years ago. With the consent of Ogiyan of Ejigbo, the appellant’s family made grants to several persons including the respondents’ family members for farming and other uses and collected tributes from them.

The appellant alleged that the respondents were tenants on the land and that Ogunsosin was not their ancestor but was one of the past Ejemu of Ejigbo just like Ogunyori. They claimed that members of their family also farm on the land and carry out iron smelting at “Orota.” The appellant denied that the respondents’ ancestor came from Otamokun. He claimed he came from Konifin and arrived Ejigbo several years after Akinjole founded Ejigbo.

In proof of their case, the plaintiffs/respondents called six witnesses while the defendant/appellant called eleven witnesses. The Learned Trial Judge after the evidence and addresses of counsel delivered judgment on 27/10/05 in favour of the plaintiffs/respondents. Dissatisfied with the decision, the appellant filed a notice of appeal containing only the omnibus ground on 1/11/05. The appellant subsequently filed an amended notice of appeal with 7 additional grounds of appeal.

From the seven grounds of appeal, the appellant distilled three issues for determination as follows:-

1. Whether the respondents led cogent and credible evidence to identify the land in dispute with definite certainty to be entitled to declaration of title (Grounds 2 and 3)
2. Whether the respondents established the root of title of Ilupeju in whose name they sued in a representative capacity to be entitled to declaration of title (Grounds 4 and 5)
3. Whether the pieces of evidence proffered by the respondents were cogent and credible enough to support the findings/decision of the learned trial Judge that the respondents were entitled to the relief sought (Grounds 1 and 6)

The Respondents on their part formulated only one issue for the determination of this appeal viz:

“Whether, based on the pleadings and evidence led, the respondents have proved their claim to ownership of the land in dispute on the balance of probability and therefore entitled to their claims.”