Madam Ayayi Yusuf & Anor V. Raphael Akinsunnoye (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High court of Ondo state sitting at Akure, delivered on 26th March 2009 dismissing the appellants’ claims in their entirety.

The appellants herein, as plaintiffs at the trial court instituted an action by writ of summons filed on 16/11/06 against the respondent as defendant, for the following refiefs:

1. A declaration that the plaintiffs family is entitled to the grant of the Statutory Right of Occupancy over the parcel of land known as Asamuro and Oguntola family land along Ipinsa Road, Akure, Akure south Local Government as shown in survey plan No. YG/OD/01/022 dated 11/3/01 and approved layout No.AKS/AURPO/642/2006.
2. The sum of N2 Million for the acts of trespass committed and still being committed by the Defendant.
3. Perpetual Injunction restraining the defendant, either by himself, agents, servants or privies from further committing any acts of trespass on the plaintiffs’ family land.

The parties filed and exchanged pleadings and the suit proceeded to trial. The appellants called two witnesses and the 1st appellant also testified on their behalf. The respondent testified in his own defence and called three other witnesses. The appellants tendered two exhibits marked Exhibits A1 and A2 while the respondent tendered Exhibit A3. The appellants’ case was that the land in dispute was originally founded by Asamuro Ogunbintan. Upon Ogunbintan’s death the land devolved on his daughter, Madam Oguntola. During Madam Oguntola’s lifetime she gave a portion of the land to one Akinsunnoye, the respondent father for the purpose of planting food crops only.

It was the appellants’ contention that the respondent’s father was warned not to plant cash crops in order to ensure that the land would be available for her use or for any of her children in future. The 1st appellant claimed to have been present when the grant was made and witnessed the giving of conditions for the grant. According to the appellants the respondent’s father complied with the terms of the grant during his lifetime. Upon his father’s death the respondent approached the Oguntola and Asamuro families and requested to be allowed to use a portion of the land used by his father to plant food crops. The request was granted.

However sometime in the year 2001 when the appellants wanted to carry out a survey of the land they noticed that the respondent had planted cocoa trees thereon. In 2006 a layout was approved for the land and the appellants erected a signboard signifying that the land belonged to the Asamuro and Oguntola Family. The respondent allegedly uprooted the signboard and drove away prospective purchasers. He claimed ownership of the land and also claimed that Madam Oguntola gave the land to his father outright as a gift with no conditions attached.

It was the appellants’ case that the matter was reported to the Akapinsa in Council and the said Council after confirming the appellants’ family’s title to the land and the conditions of the grant to the respondent’s father, ordered the respondent to give up possession. The respondent failed/refused to give up possession notwithstanding letters written to him by the appellants’ solicitor. The appellants were therefore compelled to institute the suit against him.

It was the respondent’s case that the land in dispute belongs to both Layiki and Adebayo Asamuro families of Ipinsa. That during Madam Oguntola’s lifetime she gave some portions of the land to his late father for the purpose of planting cash crops. In his pleadings he contended that there were no conditions attached to the grant made to his father who had in fact been harvesting cocoa on the land during Madam Oguntola’s lifetime. He also denied entering into any negotiations with the appellants’ family to farm on the land. He claimed that he had been exercising acts of possession on the land long before 2006, having commissioned a survey in the year 2000. He denied all the appellants’ claims.

At the conclusion of the trial and after listening to the oral addresses of the respective counsel, the learned trial Judge in a considered judgment delivered on 26/3/09 dismissed the appellants’ claims in their entirety. Being dissatisfied with the judgment they filed a notice of appeal dated 5/6/09 containing four grounds of appeal.

The parties filed and exchanged briefs of argument in compliance with the rules of this court. TEMITOPE ADEDIPE ESQ. settled the appellants’ brief, It is dated 13/5/2010 and filed on 18/5/2010. It was deemed properly filed on 7/2/2011. CHIEF TAIYE OMONIJO ESQ. settled the respondent’s brief dated 7/4/2011 and filed on 8/4/2011. It was deemed filed on 31/10/2011.

At the hearing of the appeal on 5/2/2013, learned counsel for the respondent was absent. Having filed a brief of argument he was deemed to have argued the appeal pursuant to Order 18 Rule 9 (a) of the Court of Appeal Rules 2011.

The appellants distilled four issues for determination from the four grounds of appeal as follows:

1. Whether the dismissal of the appellants claim in respect of the entire land in dispute by the trial Court is proper? (Ground 1)
2. Whether having regard to the pleadings and the evidence before the trial Court there was any condition attached to the grant of the portion of the land in dispute to the respondent’s father? (Ground 2)
3. Whether from the pleadings and evidence before the trial court, the appellants are caught by the provisions of Section 149 (d) of the Evidence Act? (Ground 3)
4. Whether the trial court properly ascribed weight to the evidence of DW2 which is not supported by any pleaded facts? (Ground 4)
5. The respondent adopted the issues as formulated by the appellants. The appeal shall therefore be determined on the said issues. I shall consider issues 1, 2 and 4 together.

Issues 1, 2 and 4

In support of Issue 1, Mr. Adedipe, learned counsel for the appellants submitted that the appellants’ case before the lower court, which was conceded by the respondent was that Madam Oguntola gave the respondent’s father some portions of the land in dispute to grow food crops. He noted further that DW2 who claimed to have worked for the respondent’s father gave a vivid description of the portion of land within the land in dispute where the respondent’s father farmed. He submitted that from the pleadings and evidence before the court, the issue joined between the parties was on whether the portion upon which the respondent’s father farmed formed part of the land in respect of which the appellants seek a declaration of title in their favour. He submitted that issues were not joined in respect of any other portion of land within the land in dispute and argued that in the circumstances the appellants had only a minimal burden of proof in respect of the remaining portion. He submitted that the respondent failed to dislodge the appellants’ evidence regarding how the larger expanse of land was founded and how it devolved on them through their mother. He submitted that the unbroken chain of traditional history and its devolution on the appellants remained unshaken. He argued that in the circumstances the appellants were entitled to a declaration of title in respect of the portions outside the portion granted to the respondent’s father. He relied on: Akeredolu Vs Akinremi (1989) 3 NWLR (108) 164 @ 174 E and Woluchem Vs Gudi (1981) 5 SC 291. He submitted that the dismissal of the appellants’ claim for declaration of title in respect of the entire land in dispute was not proper. He urged us to resolve this issue in their favour.