Cornelius Anjorin Lebile V.the Registered Trustees Of Cherubim And Seraphim Church Of Zion Of Nigeria, Ugbonla (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

This action was brought in a representative capacity on behalf of the Lebile family. The full family name was pleaded in paragraph 2 of the amended statement of claim as Lebile Okunnuwa family. The said family is part of a community known as Igbokoda. Igbokoda is in Ilaje/Ese-Odo Local Government Area of Ondo State. The reliefs sought against the defendants were stated as

(1) A declaration that the plaintiff is entitled to a customary right of occupancy of a parcel of land situate along College Road, Igbokoda which is bounded on one side by Ilaje High School, on the second side by the building of Mr. Jeje, on the third side by College Road and on the fourth side by Toloki Stream.

(2) An order of perpetual injunction

(3) N10,000.00 general damages for trespass.

The location and description of the said land was further particularly pleaded in paragraph 9 of the amended statement of claim thus:

“The land in dispute is bounded on the east by the uncompleted building of Mr. Cornelius Jeje, on the west by Ilaje High School, Igbokoda, on the North by Toloki Stream and on the south by College Road, Igbokoda.”

Then in paragraph 10, it was averred:

“The land to the south of College Road, Igbokoda is also part of Lebile Okunnuwa family land.”

The relevance of these averments shall be shown later in this judgement.

In a judgment delivered on 26 November, 1991, by the High Court at Okitipupa presided over by Ajayi, J., the action was dismissed. The Court of Appeal, Benin Division affirmed the judgment on December 1, 1995. In the appeal to this court, the appellant has raised eight issues for determination. I consider only issues 1,6 and 7 are worthy of discussion. I shall however touch on all the issues and for that purpose I do hereby reproduce the eight issues as follows:

“1. Was the Court of Appeal right in affirming the judgment of the trial court based on both amended statement of defence and further amended statement of defence

2. Whether the court below was right when it struck out as incompetent Issue One (1) raised and argued in the appellant’s brief.
3. Whether it was necessary for the appellant to have sought and obtained prior leave of court to raise and argue Issue Three (3) when it arose from grounds of appeal that attacked the judgment of the trial Judge on his interpretation and application of the provisions of the Land Use Act, 1978, particularly section 6 of it.
4. Was the court below right in not deciding against the respondents issues 2, 4, 5, and 6 raised and argued in the appellant’s brief when they properly arose from the amended grounds of appeal filed and when the respondents did not canvass contrary arguments to those of the appellant of them
5. Whether the court below was right to have raised, on its own motion, and decided, two issues and to have neglected to decide the six (6) issues raised by the appellant for the determination of the court.
6. Whether the appellant ought to have joined the Local Government and/or the community before the court could properly decide the issues raised by him in the suit.
7. Was the Court of Appeal right when it held in its judgment that ‘the defendants have shown more acts of ownership on the land in dispute than the plaintiff’
8. Did the court below exercise its discretion judicially and judiciously when it awarded costs against the appellant when it dismissed his appeal but did not award costs against the respondents when it struck out their cross-appeal as incompetent”

I must return here to the plaintiff’s amended statement of claim. It would appear that as a basis of the title relied on, the plaintiff pleaded in paragraphs 6, 7, 8 and 11 that:

“6. Lebile Okunnuwa was the founder of Igbokoda, and the 1st Baale of the place (1930-1957).