Francis Adesina Ayanwale V. Olumuyiwa Olumide Odusami (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant as plaintiff on a further amended statement of claim, claimed from the respondent as defendant the following:

1. Declaration of Statutory right of occupancy to the piece or parcel of land situate, lying and being at Adesiyan Street, Palm grove, Ilupeju off Ikorodu Road, Lagos State.
2. N500 damages for trespass;
3. An order of injunction restraining the defendant jointly and severally, their respective servants and/or agents from committing further acts of trespass on the said parcel of land.

The plaintiff gave evidence to show that he was entitled to a declaration of title to the land in dispute. The defendant and one Mr. John Ayo Adegboye gave evidence contending that it is the defendant that is the lawful owner of the land. Fourteen documents were admitted in evidence as exhibits. In a considered judgment delivered on the 24th day of November, 2000, the learned trial judge granted all the plaintiff’s reliefs. The learned trial judge reasoned as follows:

“I prefer the evidence of the plaintiff and his witnesses to that of the defendant and his witness. The 3rd defendant failed to call the proprietor of the school whom he claimed to have given a portion to testify for him. From the evidence before me it is my finding and I so hold that the plaintiff in this case has a better title. On the whole, having gone through the whole evidence and having given my most careful scrutiny, I have come to the conclusion that the plaintiffs case must succeed”.

Dissatisfied, the defendant lodged an appeal in the Court of Appeal, Lagos Division. That Court reversed the judgment of the learned trial judge. In allowing the appeal the Court of Appeal said:

“In the instant case, the plaintiff/respondent on whom lay the onus of proof failed to give evidence as to how Ojomo Eyisha family came on the land. He did not, by evidence link his Deeds of Conveyance to the established land owing family. As I said all he did was to tender bare Deeds of Conveyance…the Learned trial Judge was wrong in granting a declaration of title to the respondent…”

This appeal is against that judgment. In accordance with rules of this Court briefs were filed and exchanged. The appellants brief was duly filed on the 7th of June, 2004, while the respondents brief was duly filed on 1st of September, 2004.

From the Notice of Appeal filed on 11th December 2002, but deemed duly filed on 4/10/11 a sole issue was formulated for determination. It reads:

Whether, in view of the evidence before the court, the Court of Appeal was right in dismissing the Plaintiff’s claim for declaration of Statutory right of occupancy.

Learned Counsel for the respondent also formulated a sole issue for determination. It reads:

“Whether the Court of Appeal was right in dismissing the appellant’s claim for Declaration of title when the appellant merely tendered two Deeds of Conveyance (Exhibits B and C) in proof of his claim but failed to give traditional evidence of his root of title.

Both issues ask the same question, and so this appeal shall be heard on the issue formulated by the appellant.

At the hearing of the appeal on 4th of October, 2011 both counsel adopted their briefs and urged this court to find as per their respective conclusions. Arguments in the briefs run as follows:

Learned Counsel for the appellant observed that both parties traced their title to the Ojomo Eyisha family, the original owner of the land in dispute. He submitted that the appellant was the first to purchase the land and so had a better title than the respondent. Reference was made to Exhibits B. and C.