Kamaldeen Toyin Fagbenro V Ganyiyewhe Arobadi & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

In the High Court of Lagos State, holden at Ikeja, the respondents as plaintiffs claimed against the appellant as defendant, the following reliefs as per paragraph 20 of their amended statement of claim:

(a) An order of declaration of statutory right of occupancy alternatively customary right of occupancy in respect of the farmland situate lying and being at Itoge Road Village, Badagry Lagos, a survey plan of which will be filed hereafter i.e. plan No.SBS/442/84L.

(b) N500.00 damages for trespass on the said land described in 20(a) above which act of trespass was committed by the defendant, his servants, agents and/or privies,

(c) An order of perpetual injunction restraining the defendant by himself his servants, agents and/or privies restraining them from further acts of trespass over the said land described in 20(a) above.

Pleadings were thereafter ordered, filed and exchanged between the parties. At the trial, both parties called witnesses who gave evidence in support of their respective cases. The learned trial Judge Sotuminu J. (as she then was) after hearing the addresses of counsel for the parties delivered her judgment on 29th June, 1992 and concluded by saying:

“the plaintiffs’ case fails in its entirety and it is dismissed accordingly”.

Dissatisfied with this decision, the plaintiffs/respondents appealed to the Court of Appeal which after hearing the appeal allowed the appeal, set aside the decision of the trial court and ordered that the action of the plaintiffs/respondents succeeded in the trial court.

The appellant now appealed to this court against that decision of the Court of Appeal. He filed five grounds of appeal and in his brief of argument he raised four issues for determination of this court in the appeal. The issues are:

1. Whether the Court of Appeal rightly interpreted and applied the evidence of the 2nd DW which was given in Yoruba Language and translated into English Language as meaning that the appellant bought the land in dispute from the offsprings of the respondents.
2. Whether the Court of Appeal was right in setting aside the finding of the trial court on exhibit.
3. Whether on the evidence before the court, the appellant discharged the burden of proof on him by preponderance of evidence.
4. Whether the Court of Appeal properly construed exhibit D which they held to be patently ambiguous.

The respondents formulated three issues for determination in their joint brief which read:

1. Considering the admission made by the defendant/appellant that plaintiffs/respondents are the original/radical owners of the land in dispute, whether the appellant has succeeded in discharging the burden of proof that an absolute grant of same had been granted to the appellant.

Alternatively

That the respondents have divested themselves of title in respect of the said land in dispute.

2. Can the said burden be discharged by contradictory and irreconcilable evidence adduced by the appellant and his only witness.
3. Whether the Court of Appeal is not in a position as the trial court to make proper inferences as to the accurate interpretation of documentary evidence adduced by parties more so as question of credibility of witnesses is not called to question.

The facts giving rise to this case are straight forward and not very much in dispute. It is a simple land dispute between the parties. The appellant admitted in his pleadings and evidence that the respondents are the radical owners of the land in dispute but that they sold the land to him and put him in possession thereof. He produced in evidence the survey plan of the land in dispute and the receipt witnessing payment for the land which receipt was thumb printed by all the respondents except the 4th. The respondents pleaded that the appellant trespassed on the land in dispute.

I have carefully examined the grounds of appeal filed by the appellant in this appeal and I am of the clear view that the issues raised there-from by the appellant in his brief are apposite and I shall consider them accordingly.