Lasisi Aremu V. Alhaji Lawal Adetoro (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This is an appeal against the judgment of the Court of Appeal in respect of title to land lying between Obedu stream and Iya-Oba stream in Ofatedo. The appellant is asking for a statutory right of occupancy. At the High Court, the learned trial Judge gave judgment to the appellant as plaintiff. The Court of Appeal upturned the judgment and allowed the appeal of the respondent who was the defendant in the High Court.

The case of the appellant as narrated by the learned trial Judge is as follows: The appellant’s grandfather. Ogunyemi was granted a parcel of land by Oba Atoloye, the first Olafa of Ofatedo about 100 years ago. Oba Atoloye came into the possession and ownership of the parcel of land through a grant by one Balogun Oshungbekun of Ibadan about two hundred years ago. At the time of the grant by Balogun Oshungbekun, Ofatado and some other districts around there was administered by Ibadan. The appellant’s grandfather was succeeded by his father, Ogunyemi. The appellant and his other members of the family inherited the land. They planted economic crops such as cocoa, kolanuts on the land in dispute until 1985 when the respondent entered the land. The entry resulted in the action filed by the appellant in a representative capacity.

The case of the respondent is different. It is as follows. The land in dispute was bought from the owner, Oba Laoye, the late Timi of Ede sometime in 1976. The late Timi of Ede acquired the land by conquest about 200 years ago. Possession of the land was delivered to the respondent in the presence of three other people he called as witnesses. The respondent also pleaded the doctrine of res judicata based on the fact that the land in dispute is part of a larger parcel of land over which there was a litigation originated in the High Court in 1964 between Timi of Ede, Oba Laoye and Oba Bello Oyewusi of Idoo-Oshun.

The appellant called five witnesses. The respondent called four witnesses. The learned trial Judge gave judgment to the appellant. An appeal to the Court of Appeal succeeded. The appellant has come to this court.

Briefs were filed and duly exchanged. The appellant formulated the following issues for determination:

“(i) Whether the Court of Appeal properly set aside the trial High Court’s judgment.

(ii) Whether the Court of Appeal properly analysed the parties’ case.”

The respondent formulated the following issue for determination:

“Whether the Court of Appeal was right in setting aside the judgment of the trial court on the ground that the appellant’s case on the ground of the identity of the land in dispute is not made.”

Learned counsel for the appellant, Prince J. O. Ijaodola submitted on issue no.1 that the decision of the Court of Appeal was perverse on the ground that the Court of Appeal could not lawfully reverse the findings of fact based on credibility of evidence by the High Court. He cited Balogun & Ors v. Agboola (1974) 1 All NLR (Pt. 2) 66: Egri v. Uperi (1974) 1 NMLR 22: Bakare v. The State (1987) 1 NWLR (Pt.52) 579, (1987) 3 SCNJ 1 at 5 and Awosanya v. Board of Customs & Exercise (1975) 3 SC 4,. (1988) 12 SCNJ 313.

Learned counsel submitted on issue no.2 that the Court of Appeal misdirected itself in holding that the respondent in the appeal traced his title to his own land at Ido-Oshun, Osogbo, Edo to Timi Ajeju who acquired the land by conquest about 200 years ago. Learned counsel contended that it was the appellant at the Court of Appeal, Alhaji Lawal Adetoro, who traced his root of title to Timi Ajeju and not the plaintiff/respondent in that court. He submitted that the misdirection has occasioned substantial injustice in that it obscured the vision of the learned Justices of the Court of Appeal which led them to set aside the laudable findings of fact by the learned trial Judge wrongly. He urged the court to allow the appeal.

Learned Senior Advocate for the respondent, Mr. N. O. O. Oke, submitted on the only issue raised that the identity of the land was in issue and the appellant failed to prove it. He referred to paragraphs 3 to 6 of the amended statement of claim, the evidence of PW1, PW2, PW4, PW5 and PW6 and asked rhetorically at page 5 of his brief: “which parcel of land was the appellant and his witnesses talking about for consideration as the subject matter of dispute between the appellant and the respondent” He called the attention of the court to the fact that although the survey plan was duly pleaded in paragraph 5 of the amended statement of claim, it was never tendered.

Learned counsel also pointed out that the appellant did not attack the judgment of the Court of Appeal on the ground upon which the respondent’s appeal before it was allowed principally on the identity of the land on which the declaration was sought. Accordingly, he cannot be heard on appeal to question that finding. He cited Yesufu v. Kupper International NV (1996) 5 NWLR (Pt. 446) 17; Eholo v. Ekhator (1996) 2 NWLR (Pt. 430) 338; NBCI v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617: Ijale v. A.-G., Leventis and Co. Ltd. (1959) SCNLR 255 and Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254. He urged the court to dismiss the appeal.