Jacob Bolaji Adelusola Vs Joseph Oladiran Akinde (2004)

LAWGLOBAL HUB Lead Judgment Report

O. EDOZIE. JSC 

The Plaintiffs/Appellants in Suit No. HCL/26/83 filed at the Abeokuta High Court in Ogun State commenced proceedings culminating in this appeal against the Defendants/Respondents from whom they sought a declaration of right of occupancy over an area of land, N200 damages for trespass and an injunction restraining further acts of trespass on the disputed land. From their pleadings and evidence in support thereof, the Plaintiffs/Appellants relied on traditional evidence to establish their case. According to them, the vast track of land edged red in their survey plan admitted in evidence as Exhibit B, belonged to Akowonwado their ancestor who migrated from Ile-Ife to settle on the land about 200 years ago.

[QQTheir said ancestor Akonwonwado first settled on a portion of the vast land known as Ilase and then at Oko-omi also within the land. He exercised acts of possession and ownership by farming, building and hunting thereon without interference by anybody. Upon his death, all his landed properties including the portion now the cause of the dispute which is edged yellow in the survey plan Exhibit B were inherited by his children namely, Latorikan, Oyikilu, Ookala, Dada Agbobalaya, Ejibosa, Agedu and Aajoye. These children spread all over the entire land and founded a number of villages such as Ore later called Ore-Akinde founded by Laforikan, Olorulepupo formerly known as Oko Ilase founded by Oyekilu, Erinle village founded by Erinle son of Talabi and Ikemo founded by Ookola who begat Ajayi Aga and Aina Eru. It was the case of the Plaintiffs/Appellants that the Defendants/Respondents were descendants of Ogunyemi who fled from Ilaro as a result of the death of many of his children. He fled with one surviving child called Akinde with his mother to Ore village where they stayed with Onitan his friend. After Ogunyemi’ s death, Akinde continued to stay in Ore village, which later became Ore Akinde because of the popularity of Akinde as an Ifa priest. Akinde was given a portion of the land belonging to Ajayi Aga and Aina Eru the children of Ookola for farming purposes. The descendants of Akinde are still in occupation of that portion of land. The Plaintiffs/Appellants further alleged that no portion of the entire land inherited by the descendants of their great ancestor Akowonwado had been sold and nobody entered any part of their land without the permission of members of their family. The present dispute erupted because the Defendants/Respondents encroached beyond where they were given by trying to build a church without first obtaining permission from the Plaintiffs/Appellants’ family.

By their own pleadings and evidence proffered in support thereof, the Defendants/Respondents denied the Plaintiffs’/Appellants’ claims and traversed their main allegations. Ostensibly relying on traditional evidence, they equally lay claim over the land in dispute. According to them, their great ancestor Ogunyemi came from Ilaro. He and Aina Akaraki were the first settlers in Mede which later became known as Oko-omi. Ogunyemi lived and died there and thereafter one of his three sons Akinde moved to the place now known as Ore Akinde, which he founded. The descendants of Akinde continued to exercise acts of ownership over Ore Akinde where they built houses and constructed roads without any let or hindrance nor permission from anybody. Finally, the Defendants/Respondents admitted erecting a church building at Ore Akinde without seeking the consent and permission of the Plaintiffs/Appellants asserting that the land in Ore Akinde and its environs marked ‘B’ and edged Red in their survey plan admitted as Exhibit ‘C’ belongs to the Defendants’/Respondents’ family.

After due summarization and evaluation of the evidence of the parties, the learned trial Judge Sofolahan J on 15th November 1990 upheld the traditional evidence of the Plaintiffs/Appellants adjudging them entitled to the customary right of occupancy over the area edged red in their plan Exhibit ‘B’ and an injunction against the Defendants/Respondents with respect to the yellow verge in the said plan Exhibit ‘B’, Dissatisfied with the outcome of the proceedings at the trial court, the Defendants/Respondents lodged an appeal to the Court of Appeal, Ibadan Judicial Division which court in its judgment of 30th April, 2001 though affirming the findings of facts made in favour of the Plaintiffs/Appellants with respect to their traditional history, nonetheless non-suited the Plaintiffs/Appellants on the ground that the area of land which they claimed on their writ, to wit, “an area of land situate, lying and being at Ore village via Uju Otta, Ogun State” was not identifiable.

It is against that judgment of the Court of Appeal non-suiting the Plaintiffs/Appellants that they the Plaintiffs/Appellants have brought this appeal predicating same on a notice of appeal containing two grounds of appeal.

Having regard to the preliminary objection raised by the Defendants/Respondents, I propose to set out the two grounds of appeal shorn of their particulars. They read as follows:-

“Grounds of Appeal

The Court below misdirected itself in law in its order non-suiting the Plaintiffs’/Respondents’ case after all the concurrent findings of fact particularly where it stated –

“The only technical hitch that prevented the Plaintiffs/Respondents from having judgment was the disparity between their claims as phramed (sic) and the area of land they successfully proved as their own. There is no doubt therefore that it will be totally inequitable for their claim to be dismissed. I believe that from the facts established in this case, this is a case in which an order of non-suit ought to be made”

The Order is unreasonable and unwarranted having regards (sic) to the facts.”

In the Appellants’ brief of argument, learned counsel for the Plaintiffs/Appellants raised two issues for determination, viz, : –

Whether the Court of Appeal’s approach to the Plaintiffs’ claims was right in law that the trial Court was wrong when it granted the Plaintiffs judgment for declaration of title to the entire area of land verged ‘Red’ in their survey plan Exh. B on the view that their claim was limited to an area of land named “Ore village” as endorsed on the Writ of Summons.

Whether the approach of the Court of Appeal was right in setting aside the judgment of the trial Court on the order of injunction granted on the view that that area to be covered by the order of injunction was not strictly defined.”