Mojeed Suara Yusuf V Madam Idiatu Adegoke & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

The appeal is against the judgment of Court of Appeal, sitting in Ibadan, in CA/1/72/89: Alhaji Suara Yusuf and Lasisi Kode delivered on Thursday, 7th June, 2001. The case originated from the High Court of Justice, Ibadan, Oyo State where in suit No. 1/683/84 Tiamiyu Adeagbo and Alhaji Lamidi Atanda (deceased for themselves and on behalf of Odetunde family) claimed against Alhaji Suara Yusuf as follows:-

“(1) a declaration to a statutory or customary right of occupancy to all that piece or parcel of land verged RED on plan No. APAT/OY/06/1986 (excluding the area verged GREEN)’ to ,

(2) the plaintiffs also claim N10,000.00 damages against the defendant for trespass committed by the defendant in respect of the said parcel of land sometimes in December 1984 which trespass is still continuing;

(3) the plaintiffs also claim perpetual injunction restraining the defendant, his servants, agents and privies from committing further acts of trespass on the land in dispute.”Both parties filed, in the trial court registry, their respective pleadings and exchanged them; the pleadings of the plaintiffs (hereinafter referred to as the respondents) being the statement of claim dated 1st February, 1986 accompanied by a dispute survey plan No. APAT/OY/06/1986 dated 9th January, 1986 wherein the area in dispute was verged “RED” as pleaded in paragraph 2 thereof; while that of the defendant (hereinafter referred to as appellant) is the statement of defence dated and filed on 18th July, 1986. The case thereafter proceeded to trial and at the conclusion of the evidence of the parties and the addresses of counsel for both parties, the trial Judge, in a considered judgment delivered on the 30th of June, 1987 found for the plaintiffs/respondents and accordingly granted them the three reliefs sought; for the second relief, N3,000.00 was awarded in their favour as damages for the trespass said to have been committed.

Dissatisfied with the said judgment, the appellant lodged an appeal against it to the court below, the respondents sought to amend paragraph 3 of their pleadings to reflect a plea of original statement and not grant. The prayer was refused by the court below and this court, (Supreme Court) upon an appeal to it on that issue also refused to accede to the prayer for the amendment.

In the course of this interlocutory matter, Tiamiyu Adeagbo, the first plaintiff/respondent died and the prosecution of the case was carried by Alhaji Lamidi Atanda, the second plaintiff/respondent on behalf of Odetunde family. Again, Alhaji Lamidi Atanda himself died on the 12 of December, 1996 and one Lasisi Kode was by the order of court, sequel to an application dated 9th April, 1998, substituted for the deceased. The parties up to the time the judgment of the Court below was given on the 7th of June, 2001 were (1) Alhaji Suara Yusuf (the appellant) and (2) Lasisi Kode (the respondent for and on behalf of Odetunde family). Upon the death of Kode, both Madam Idiatu Adegoke and Sulaiman Adeagbo Odetunde were joined by the order of court to continue the prosecution of their appeal. Alhaji Suara Yusuf (the appellant) who died on the 5th of August, 2002 was by the order of this court pursuant to an application dated 9th September, 2002 substituted by his son, one Mojeed Suara Yusuf, as the appellant. The above account of the various deaths that occurred while the appeal was still pending gave rise to the present composition of the parties that are now prosecuting this appeal to finality.

As I have said supra, the appellant who was the defendant in the trial court, being dissatisfied with the decision of the Court, appealed to the court below on seven grounds from which five issues were distilled for determination by the court below. The respondents, for their part, raised four issues for determination of the court below. For a clear understanding of this case, it is important to observe that both parties filed their respective briefs of argument after the respondents had failed in their bid to amend their pleadings by deleting the word “GRANT” in paragraph 3 of their statement of claim. Counsel representing the parties after adopting their briefs, urged, for the appellants, that the appeal be allowed and for the respondents, that the appeal be dismissed. The very crucial issue laid before the court below was whether on the state of the pleadings and the evidence adduced, the plaintiffs/respondents could be said to have proved by credible evidence, the traditional history relied upon in their pleadings. As I have said, the court below, in a considered judgment delivered on the 7th of June, 2001, dismissed the appeal before it. Being dissatisfied with the judgment, the appellants have appealed to this court upon an amended notice of appeal dated 25th November, 2002 but deemed properly filed with the leave of court on 3rd May, 2006, with said notice incorporating seven rounds of appeal. Distilled there from and set out in the appellant’s brief of argument dated 15th July, 2004 are two issues which are in the following terms:-

“(1) Whether the court below could legitimately affirm the High Court judgment for the respondents on grounds expressly rejected by the respondents themselves, unsupported by any oral evidence led (which evidence conflicted with the pleadings), and never made out by the respondents.

(2)Whether the Court of Appeal’s use of exhibit 6 in this case was appropriate”

The respondents who disagreed with issue No.1 distilled by the appellant raised only one issue for determination which as contained in their brief of argument dated 8th September, 2006 but deemed properly filed on the 22nd of January, 2007 is as follows:

” Whether the appellant has made out any case for interference with the decision of the learned Justices of the Court of Appeal which affirmed the judgment of the learned trial Judge, having regard to all the circumstances of the case including exhibit 6″ When this appeal came before us on the 22nd of January, 2007 for argument, Mr. Ubong Akpan, learned counsel for the appellant referred to, adopted and relied on the appellant’s brief filed on the 10th of August, 2004 and while urging that the appeal be allowed, he submitted that the entire appeal turned on the interpretation of exhibit 6 – the proceedings of judgment of the Ibadan City No.1 Grade “A” Customary Court, Mapo Hill, Ibadan. It was his further submission that the said exhibit did not advance the case of the plaintiffs respondents pointing out that the claim before the customary court was wrongly reproduced in the respondents’ brief of argument. Mr. Akeem Agbaje, learned counsel for the respondents on his party also referred to, adopted and relied on his clients’ brief of argument deemed properly filed on the 22nd of January, 2007 and while urging that the appeal be dismissed, he conceded the point raised by Mr. Akpan that the claim before the customary court was wrongly reproduced in the brief of his clients, adding that the words: “and joint owners of Odetunde family lands including the land at Oke-Ode” were erroneously represented by the respondents to be part of the claim before the customary court.

In their brief of argument, the respondents expressed their disagreement with issue No.1 identified in the appellant’s brief, they nevetheless went on in their said brief to reply to the said issue. I have considered the said issue and it is my respectful view that it is very germane to this appeal. I shall therefore consider it.

On issue No.1, the appellant in his brief, submitted that the trial court wrongly gave judgment in favour of the respondents (who were plaintiffs before that court) on the basis that their root of title to the land was predicated on a grant from Aleshinloye, a root, according to the appellant, which the respondents had rejected on the record as being their case. More importantly, he further argued, no oral evidence was adduced by the plaintiffs/respondents in proof of the grant by Aleshinloye. Reviewing the proceedings before the court below (Court of Appeal) the appellant further submitted that once it became obvious that plaintiffs/respondents’ pleading was based on GRANT, but evidence led before the trial court was on original settlement and judgment of the trial court was also founded on original settlement, the plaintiffs/respondents made a desperate