Gabriel Ogunleye & Anor V. Chief S. O. Jaiyeoba & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

In the High Court of Justice, Akure Judicial Division of Ondo State, the reliefs claimed in Paragraph 32 of the further amended statement of claim, by the respondents against the appellants were as follows:-

“(i) A declaration that the plaintiffs are entitled to the customary right of Occupancy over about ten (10) hectares of Igoba communal land which is situate at Igoba village near Akure. The value of the land is about N3, 000,000; 00 (Three million naira).

(ii) The sum of N500, 000.00 (five hundred thousand naira) damages for Trespass committed on the said land by the defendants in May 2003.

(iii) An injunction to restrain the defendants, their servants, agents and privies from entering the said land.”

The parties filed and exchanged their respective pleadings in the trial court registry. During the hearing, the respondents as plaintiffs called 8 witnesses while the appellants as defendants called 4. The evidence adduced by the respondents was that their ancestors led by Oogunyakin, their progenitor migrated from Ile Ife and initially settled at Ode-Iye near Oba-Ile, Akure. As a result of incessant killing of their children by wild animals, they moved and finally settled at Igoba community 500 years ago. For centuries their long line of ancestors lived on the land, part of which is now in dispute, farmed it, built houses and leased out portions to tenants without any interference whatever from anybody until May 2003. They created two approved layouts on the land; one in 1982 and the second in 1987. They allocated several plots to many people who have built houses on the plots as far back as 1987. They claimed that the appellants did not trespass on phase one of the layout but in 2003, they trespassed into phase two of the layout removing beacons, pillars and illegally sold large portions of the land measuring 10 hectares without the knowledge and consent of the respondents. They claimed the appellants went further to surreptitiously survey the land in June 2003 and obtain approval for a layout on the land, which approval had earlier been granted the respondents in 1987 by Ondo State government. The respondents made representations to the government and a complaint to the police, and finally instituted this suit.

The appellants on their own part led evidence that the land in dispute measuring about 500 acres and situate at Agbeja was given to their ancestor Obasesin by Elemo Famuagun of Oba-Ite in appreciation of Obasesin giving him his daughter Mebila in marriage. Following the grant, Obasesin invited his brother, Atanlogun and together they farmed the land. The appellants’ evidence is that they have since the grant been in undisputed possession and had made several grants to other people who have also remained in undisputed possession. When they hired a surveyor to survey the land and create a layout, the respondents claiming ownership of the land got the 1st appellant arrested by the police. The police advised them to go to court as the police do not handle land matters. The appellants denied being in Igoba land and maintained that the land they occupy is in Agbeja land.

After due consideration of the evidence led by the parties and of the submissions of their counsel, the learned trial judge, Hon. Justice O.O. Akeredolu being satisfied that the evidence of the plaintiffs/respondents witnesses is more probable and more credible than that of the defendants/appellants gave judgment for the respondents against the appellants.

Dissatisfied with the judgment, the appellants lodged an appeal against it to this court. As usual the parties filed and exchanged briefs. Out of their four grounds of appeal in the notice of appeal, the appellants formulated two issues for the determination of this court. The respondents adopted the same two issues in their brief but split the issues into three to fall in line with the arguments as presented by the appellants in their brief. The issues are as follows:-

(1)Whether the trial court was not in error to have held that the respondents have sufficiently proved their title to the land when from the evidence they did not establish their root of title based on evidence of traditional history.

(2)Whether the respondents sufficiently identified the land with definite certainty to which their claim of title to land relates.

(3)Whether a party can rely on evidence of acts of ownership and long possession in proving his title where he does not have an exclusive right.

On issue No. 1, the thrust of the appellants’ argument is that the learned trial judge misinterpreted the trite principle of law that the onus is on the plaintiff seeking a declaration of title to land to satisfy the court that he is entitled to the relief on the evidence brought by him; and in doing this he must rely on the strength of his own case and not on the weakness of the defendant’s case.

Learned Counsel argued that the learned judge came to this error by his conclusion that the defendant did not plead the root of title of Elemo Famuagun of Oba-Ile who granted the land to Obasesin their ancestor and that Pw7 and Pw8 were not cross examined by the defendants on the traditional evidence they gave, thus leaving their evidence unchallenged. The contention of the appellant appears to be that they as defendants have no role to play in the matter; that it is a plaintiff who traces his root of title to someone that bears the burden of proving that person’s root of title. To support their contention, the appellants referred to several authorities including Alomaja v. Adewale [2004] 15 NWLR (Pt 897) 564 @5S8 where Muntaka Coomasie JCA observed: