Mr. Samatu Adeleke & Ors. V. Yesufu Ogunwusi & Anor. (2012)

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 Osun State, Ile-Ife Judicial Division delivered on 11/6/07 dismissing the plaintiffs/appellants’ claims and entering judgment in favour of the defendant/respondent.

By their 4th Amended Statement of Claim the appellants herein as plaintiffs for themselves and on behalf of other members of Ogangi family sought the following reliefs against the respondents for themselves and on behalf of other members of Ogunwusi family:

1. An order that the plaintiffs who are in physical possession of their farmland situate, lying and being at Oke Adara Ogangi Village via Ipetumodu, Ife North Local Government Council Area of Osun State be allowed to be in continuous possession of the said farmland verged yellow in the accompanying plan.
2. An order that the plaintiffs are entitled to the statutory right of occupancy of the said farmland situate, lying and being at Oke Adara Ogangi Village via Ipetumodu, Ife North Local Government Council Area of Osun State.
3. N500,000.00 (Five Hundred Thousand Naira Only) being special and general damages suffered by the plaintiffs as a result of the defendant’s act of trespass upon the plaintiffs’ cocoa trees, kolanut trees, orange trees, palm trees, banana trees, breadfruit trees and cassava on their said farmland against the defendants.
4. Perpetual injunction restraining the defendants, their servants, agents and privies from committing further acts of trespass on the said farmland verged yellow.

The parties filed and exchanged pleadings, led evidence in support of their respective positions and tendered exhibits. Learned counsel for both parties adopted written addresses at the conclusion of the trial. In a considered judgment delivered on 11/6/07 the learned trial Judge dismissed the plaintiffs’ claims and entered judgment in favour of the defendants. The plaintiffs were dissatisfied with the judgment and filed a notice of appeal containing twelve grounds of appeal. The notice of appeal was amended pursuant to an order of this court made on 6/3/09. It was further amended to reflect the substitution of some of the appellants who were deceased. The Amended Notice of Appeal was filed on 19/8/2010.

In compliance with the Rules of this Court the parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 5/3/12 S. HAMMED ESQ., adopted and relied on the appellants’ amended brief of argument dated 30/6/10 and filed on 19/8/10. It was deemed filed on 13/7/2011. He also adopted and relied on the appellants’ amended reply brief dated and filed on 13/7/2011. He urged the court to allow the appeal and set aside the judgment of the lower court. A. A. AWOSEEMO ESQ., learned counsel for the respondents adopted and retied on the amended respondents’ brief dated 8/3/2011 and filed on 13/7/2011. It was deemed filed on 13/7/2011. He urged the court to dismiss the appeal. He also urged the court to discountenance the arguments canvassed in the amended reply brief on the ground that the respondents adopted the issues formulated by the appellants and did not raise any new issue in their brief.

The appellants formulated seven issues for determination as follows:

1. Whether the appellants have not discharged the onus of proof placed on them regarding traditional history on settlement of their ancestor and the line of succession thereafter.
2. Whether the appellants’ pleadings contradict the evidence adduced by them and their witnesses.
3. Whether the case of Kojo II Vs Bonsie is not applicable to this case and if applicable whether the conclusion of [the] trial court has not occasioned a miscarriage of justice.
4. Whether visit to the locus in quo by the trial court would not have clearly shown the features on the disputed land and acts of possession canvassed by both parties thereby obviating the doubt as to the location of the land.
5. Whether the refusal of the trial court to amend “Ife North Local Government” to “Ife Central Local Government, when the pleadings and evidence led centred on the latter and whether this has not deprived appellants of justice.
6. Whether the court can grant to a party relief(s) not claimed by the party.
7. Whether the trial court properly and adequately evaluated the evidence before it in arriving at its judgment.

No issue was distilled from Ground 8 of the Amended Notice of Appeal. It is deemed abandoned and accordingly struck out. The respondents adopted the issues formulated by the appellants. The appellants’ issues 1, 2, 3 and 4 are interwoven and shall be considered together.

Issues 1, 2, 3 & 4

In respect of the first issue, learned counsel for the appellants argued that the appellants led credible evidence in support of their traditional history and that upon a preponderance of evidence they had proved exclusive possession and ownership of the land in dispute. On what a party relying on traditional history must prove he relied on: Naruma vs. Ebuzoeme (2006) WRN 133 @ 156 – 158; Akinloye v. Eyiyola (1968) NMLR 92; Olujinle vs. Adeagbo (1988) 2 NWLR (75) 238. He submitted that the appellants duly pleaded and led evidence to establish all the requirements. He submitted further that the appellants pleaded the location and boundaries of the land and tendered Exhibit AA1 in proof thereof.

Learned counsel stated at page 10 paragraph 4.04 of his brief. “The natural feature of Adara River was pleaded and proved to be in between Appellants’ family land and Respondents’ family land. Awosun stream was pleaded and proved to be the natural boundary between Ife and Ipetumodu people and it forms one of the boundaries of the appellants’ family land because the appellants’ family hails from Ile-Ife.” He submitted that the appellants had discharged the onus of proof on them on the strength of their own case. Learned counsel argued further. “There is no contradiction in the evidence of the appellants and their witnesses as they kept on informing the court that when coming from Ile-Ife and passing to Ibadan, one would see Adara River after the respondents’ family land and Awosun stream after appellants’ family land. It is submitted that it was the trial court that misconceived the issue of the two rivers or summarised the parties’ evidence inadequately or incorrectly.” He submitted that in addition to the appellants’ evidence that the families of both parties are related. Exhibit AA3 was an alusion to long association of the parties on their different farmlands. He contended that the respondents only denied their relationship and the fact that the appellants are indigenes of Ile-Ife in order to deprive their family of their interest in the land.

With regard to the second issue learned counsel referred to the pleadings and evidence of the appellants’ witnesses and submitted that their evidence was in line with their pleadings and was uncontradicted. He referred to: Amadi Vs Nwosu (1992) 6 SCNJ (Part 1) 59 @ 65; Yusuf vs. Adegoke (2008) 40 WRN 1 @ 46 lines 40 – 45; also found in (2007) 11 NWLR (1045) 332. He argued that a visit to the locus in quo would have enabled the trial court to see the villages and other features as described by the appellants and would have eliminated any seeming contradiction or doubt. He contended that the failure of the learned trial Judge to visit the locus in quo had occasioned a miscarriage of justice.

On the third issue, learned counsel submitted that the learned trial Judge did not properly evaluate the appellants’ evidence of settlement, exclusive ownership and possession. He submitted that there was no break in the chain of devolution of title from the original settler down to the appellants and therefore the trial court ought to have upheld their case. He referred to Yusuf Vs Adegoke (supra) and Olubodun vs. Lawal (2008) WRN 1 @ 71 lines 5 – 10. He submitted that the learned trial Judge ought to have applied the principle in Kojo II vs. Bonsie (1957) 1 WLR 1223 to the facts of this case having regard to the competing traditional histories, to see which is more probable. He referred to: Sanusi & Ors. vs. Adebiyi & Anor. (1997) 12 SCNJ 25. He argued that the learned trial Judge erred by rejecting the appellants’ evidence of traditional history before placing the two competing histories on an imaginary scale. He contended that the appellants had thereby suffered a miscarriage of justice. He relied on: Otuedon vs. Olughor (1997) 7 SCNJ 411 @ 437 para 4.

Issue 4 complains about the failure of the learned trial Judge to visit the locus, which was also addressed under issue 2.

In reaction to the above submissions, learned counsel for the respondents submitted that where a trial is by pleadings the judgment of the court must be based on the pleadings. He relied on: University of Calabar vs. Essien (1996) 12 SCNJ 304 @ 326 ratio 3. He argued that PW1 and PW2 failed to testify as to the successive intervening owners of the land in dispute in accordance with their pleadings. He pointed out certain omissions and urged the court to deem those aspects of the pleadings in respect of which evidence was not led as having been abandoned. On what a plaintiff must plead and prove when relying on traditional evidence, he relied on the case of Lawal vs Olufowobi (1996) 12 SCNJ 376 @ 384 ratio 1. He submitted that there was a gap in the evidence as to the intervening owners and that in the circumstances the line of succession ought to be rejected. He referred to Yusuf Vs Adegoke (supra) at 52 – 53 lines 30 – 15. He submitted that there was no dispute as to the location of the land as both parties were ad idem that the land is situate between Adara Stream and Awosun River. On the appellants’ place of origin he stated that PW2 under cross-examination testified that he used to write Ipetumodu on his tax receipts as his town.