Makanju Akinyele & Ors V. Rev. Johnson Adebayo (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the judgment of Hon. Justice A. O. Odusola of Ondo State High Court of Justice delivered on the 16th day of July, 2012 wherein the court granted all the reliefs sought by the plaintiff now Respondent. At the trial court, the Respondent had commenced an action against the Appellants claiming the reliefs below:

a. A declaration that the plaintiff is entitled to the customary right of occupancy over a piece or parcel of land situate, lying and being at Balorunduro, Ijoka Farm, Off Abusoro Road, Akure Ondo State which is bounded as follows: 1st side by High Chief Moses Adewole Adebayo’s land, 2nd side by the existing road, 3rd side by late Samuel Adebayo’s land and 4th side by Sunday Agbomo’s Land.

b. The sum of N500,000 being the general damages for various acts of trespass committed by the defendants on the said land.

c. Perpetual injunction restraining the defendants, their agents, privies and anybody claiming through them from committing further acts of trespass on the said land.

The parties joined issues. Consequently, they filed and exchanged their pleadings. The matter was settled for full trial, at the end of which the trial court held in favour of the Respondent, hence this appeal by the Appellants.

The Appellants in their notice of Appeal dated 19/7/2012 and filed at the trial court’s registry, raised five (5) Grounds of Appeal – (Pages 95 – 98 of the records of appeal.)

The parties filed and adopted their various briefs of argument. In their brief of argument dated 19th day of September, 2012 but filed on 4th day of October, 2012, the Appellants submitted two issues for determination as follows:

1. “Whether having regard to the fact that the respondent (Plaintiff in the trial court) did not plead and prove the nature, essential requirements and incidents of the alleged gift absolute of the land in dispute and how the said gift absolute was established, the learned trial judge was right to have acted on unpleaded, speculated as to the nature of the evidence, alleged gift absolute and entered judgment in favour of the respondent (Ground 1).
2. Whether having regard to the fact that the defendants in the trial court did not have a counter-claim and the respondent who sought a declaratory relief did not meet the requirement for proof of a gift absolute of land upon which he based his claim, the learned trail judge was right to have embarked upon a consideration of the weakness of the defence and enter judgment in favour of the respondent in the trial court (Ground 3)”

The respondent in his own brief of argument dated and filed on 28/11/2014 formulated only one issue for determination to wit.

“Whether the respondent successfully established that the land in dispute was given to him by his late father as gift absolute.”

I have carefully perused through the issues adumbrated by both parties for determination of this appeal and I have not seen the difference between the Appellant’s issue one and issue two. The issues centre on one point of argument on the proof or otherwise of the Respondent’s title to the disputed land by gift absolute made to him by his deceased father. This issue by the Respondent captures the points in contention by both parties. This court will therefore adopt same for the determination of this appeal. Thus, the issue for determination is: “whether the respondent successfully established that the land in dispute was given to him by his late father as gift absolute.”

The basis of the argument of the Appellants is that the respondent did not establish by pleadings and evidence that the disputed land was a gift absolute made to him by his late father.

The learned trial judge, it was contended on behalf of the Appellants to have erred in law by relying on the mere assertion in the respondent’s pleadings and evidence of his witnesses that the plaintiff’s father gave him the land in dispute as gift absolute and nothing more to make a declaration of title in favour of the respondent.

Furthermore, that the onus was on the Respondent to prove the existence of the gift absolute which was the very basis of his claim for declaration of title.