Joseph Akole & Ors V. Joshua Ojo Alonge & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A.: (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Ekiti State sitting at Ikere Ekiti, delivered on 20th October, 2011. The learned trial Judge granted all the reliefs sought at the lower court by the Respondents. Dissatisfied with the said judgment the Appellants appealed against same vide their Notice of Appeal dated and filed on 17th January, 2013.

The Respondents claimed against the Appellants the following reliefs:

“1. A declaration that OSOBE FAMILY HALL situate, lying and being at the Osobe family compound, Ikere Ekiti belongs exclusively to the plaintiffs and that only the plaintiffs can exercise acts of ownership over same.

2. A declaration that first to fourth defendants are not members of the OSOBE FAMILY of Ugele Uro Quarters, Ikere Ekiti and as such have no power to manage, supervise or interfere in the affairs of OSOBE FAMILY of Ikere Ekiti.
3. A declaration that the first and second defendants are members of OSOTUN FAMILY of Eruku Ikere Ekiti.
4. A declaration that the third and fourth defendants are members of ELEMOSO FAMILY of Ikere Ekiti.
5. A sum of N1 million general damages for acts of trespass committed and still being committed by all the defendants, their agents, servants or privies on the plaintiff s’ land situate, lying and being at Abepe farmland, Eti Osun, Igbara Odo Road Ikere Ekiti.
6. An order of perpetual injunction restraining the defendants their servants, agents or privies from committing further acts of trespass on the plaintiffs’ land situate, lying and being at Abepe farmland, Eti Osun, Igbara Odo Road, Ikere Ekiti”

The Respondents’ case at the lower court is that they are members of Osobe family, Osobe compound, Ikere Ekiti while the 1st and 2nd Appellants are from Osotun family of Ikere Ekiti and 3rd and 4th Appellants are members of Elemoso family of Ikere Ekiti. The Respondents grouse is that the 1st and 4th Appellants sold the Respondents’ family land to strangers including the 5th and 6th Appellants. They alleged that the farmland in dispute belonged to their ancestor late Pa Osobe. They added that they had been exercising various acts of ownership on the farmland before the Appellants trespassed into the farmland which act of trespass prompted the action at the lower court.

On their part, the Appellants’ case was that Osobe and Osotun were from the same family with Elemoso as their father. They further asserted that the Respondents were merely engrafted into the Osotun/Osobe family of Uro Ikere Ekiti for the fact that their great mother Alaoko was Osobe’s daughter.

The case later proceeded to trial and the Respondents as Plaintiffs called three witnesses and also tendered three exhibits marked A, B and C respectively. See: pages 168 -175 of the record. The Appellants who were Defendants equally called three witnesses and tendered one exhibit, which was admitted as exhibit D.

At the close of the Appellants’ case on 20th June 2011, the court ordered parties to file written addresses. At this stage the Respondents brought an application to amend their statement of claim which application was granted. Thereafter the Appellants obtained leave of the court to recall two of their witnesses, they also amended their pleading and filed a supplementary address as their final address had already been filed before the amendment granted the Respondents.

The learned trial Judge finally delivered judgment in this case on 20th October, 2011 and granted all the reliefs sought by the Respondents. See: pages 192-206 of the record. The appeal against the judgment of the lower court is by Notice of Appeal filed on 17th January, 2013 with four Grounds of appeal.

The parties filed and exchanged their briefs in line with the rules of court. The Appellants’ brief dated 20th March, 2013 but filed on 21st March, 2013 was settled by Mr. Kayode Akinwumi. In their brief the learned Counsel distilled 6 issues for the determination of this appeal. The issues are:

1. “Whether the learned trial Judge was right to have granted the application brought by the Plaintiffs/Respondents to amend paragraph 10 of their statement of claim which was admitted by the defendants/Appellants in their statement of defence considering the state of the proceedings in Suit No HCR/28/2005.
2. Whether the learned trial Judge properly evaluated, if he ever carried out any evaluation, the evidence placed before him in arriving at the conclusion that the defendants/Appellants are tenants to the Plaintiffs /Respondents.
3. Whether the failure of the trial Judge to advert to and consider the evidence from all the Appellants’ witnesses, Exhibit D tendered by the Appellants and admitted without any objection from the Respondents counsel, the final written address filed by the appellants counsel, together with the supplementary address, does not amount to a denial of fair hearing and whether this failure has not occasioned an injustice to the Defendants/Appellants.
4. Whether the learned Judge properly exercised his discretionary power judicially and judiciously when he rejected the Defendants/Appellants application to amend their statement of defence on the ground that the Plaintiffs had closed their case and would therefore have no time to react to the amendment after which the said Judge granted a similar application brought by the plaintiffs when the defendant had not only closed their defence but have gone ahead and filed their final written address as mandated by the court.
5. Whether the learned trial Judge was right in his failure to give any specific findings of fact on the question placed before him by the parties to this case, as regard the true child of Pa Osobe between Oluabinu mentioned by the Plaintiffs/Respondents in their amended statement of claim and Osotun asserted by the Defendants/Appellants in their defence.
6. Whether the Plaintiffs/Respondents actually proved that they are in actual or constructive possession of Abepe Farmland to be entitled to a claim in trespass against the Defendants/Appellants.”

For the Respondents, Mr. Emmanuel Bamidele Omotoso who prepared their brief formulated the following 3 issues for determination:

i. “Whether having regards to the circumstances of this case, the trial court was wrong in granting the respondents’ application for leave to amend their statement of claim at the time it did.

ii. Did the trial court make any specific finding on who is the true son of Osobe between Oluabinu and Osotun.

iii. Whether the learned trial Judge properly evaluated the evidence of the parties before coming to the conclusion that the respondents proved their claims as per the writ of summons and statement of claim.”