Mrs. Clara Olujobade & Anor V. High Chief Jide Olalusi & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A.A. ADUMEIN, J.C.A (Delivering the Leading Judgment)

In Suit No. AK/157/2004 filed on the 2nd day of July, 2004 in the High Court of Ondo State, Akure Division, the respondents who were the plaintiffs sought in their statement of claim of 28 paragraphs the following relief against the appellants, who were the defendants:

“1. A DECLARATION that the Plaintiffs are the persons entitled to the grant of the Statutory Right of Occupancy over all that vast parcel of measuring 99.514 hectares and known as Atanlae Family land lying, situate and being at Igbojaro, Off Ilesa Road Akure and as further confirmed by the judgment of this Honorable Court in suit No. AK6/89 delivered on 15/2/96.

2. A DECLARATION that the false claim of ownership and purported exercise of rights of possession by the Defendants over a part of all that vast parcel of land known as Atanlae family land, lying, situate and being at Igbojaro Off Ilesa Road Akure, constitute acts of trespass and invasion of the proprietary rights of the Plaintiffs on the said parcel of land.
3. One Million Naira (N1, 000, 000, 00k) damages for trespass.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants either by themselves, or by their agents, servants, assigns, privies or successors-in-title or by any other person(s) claiming through them from further trespassing on any part of that parcel of land measuring 99.514 Hectares or any part thereof known as Atanlae family land which is lying, situate and being at Igbojaro off Ilesa Road Akure.”

The appellants filed a statement of defence of 24 paragraphs wherein they denied the respondents’ claim. The respondents filed a reply to the statement of defence. The statement of claim, the statement of defence and the reply to the statement of defence span pages 4-16 of the record of appeal.

The case proceeded to trial. The respondents called three witnesses – PW1, PW2 and PW3 while the appellants called only one witness – DW1.

The evidence of all these witnesses covers pages 26 – 38 of the record of appeal. At the close of evidence, the parties through their learned counsel addressed the lower court. The address of the appellants’ learned counsel is from pages 39 – 42, while the address of the learned counsel for the respondents is from pages 46 – 50 of the record of appeal. The appellants’ reply on points of law is at page 50 of the record. In a reserved judgment delivered by the lower court on the 12th day of November, 2007 judgment was entered in favour of the respondents. The judgment of Osoba, J the learned trial Judge is at pages 51-62 of the record of appeal. The appellants were not satisfied with the whole judgment of the lower court and they filed a notice of appeal containing 5 (five) grounds. The grounds of appeal, shorn of their particulars, are hereby reproduced:

1. The learned trial judge erred in law when she failed to consider the fact and hold that the plaintiffs’ claim is statute barred having regard to the time when the causes of action arose.
2. The learned trial judge erred in law when she held that Exhibit E1 which is the purchase receipt of the land in dispute in 1957 is a registrable instrument and not being registered, is inadmissible in evidence, null and void and does not confer the title of the land in dispute on the Defendants’ father.
3. The learned trial judge misdirected herself and thereby came to a wrong conclusion when she held that:

”I have no reason to disbelieve the evidence of PW1 and PW3, I therefore believe them contrary to the evidence of history of the land in dispute given in evidence by DW1 which is mere hearsay evidence and which cannot be admitted in evidence”.

4. The learned trial judge erred in law when she held as follows:

”I have no evidence before me that the Atanlae family land had been partitioned. It is trite that in order to effect a valid sale or alienation of family with the principal members must participate in the exercise. See Layinka & ors V. Gegele (1993) 3 NWLR PT 285 518. Kabiawu V. Lawal 1969. 1 ALL NLR 329.

There is ample evidence before this court that family members were opposed to the sale of the cocoa farm by Ojo Olatunbosun to the father of the Defendant. That being so, I hold that sale of the family land by Olatunbosun Ojo to the father of the Defendant without the consent of the head and principal members of the Atanlae family is void.”

5. The entire judgment is altogether unwarranted and cannot be supported by the evidence before the court.

The parties filed and exchanged briefs of argument in accordance with the Rules of this Court. The appellants’ brief dated the 17th day of April, 2009 and was filed on the 23rd day of April, 2009 but deemed properly filed and served on the 24th day of September, 2009. The respondents’ brief dated the 22rd day of October, 2009 was filed on the 23rd day of October, 2009. On the 4th day of November 2009 the appellants’ filed a reply brief dated the 3rd day of November, 2009.

At the hearing of the appeal, the appellants adopted their said briefs, relied on them and urged the Court to allow the appeal and set aside the judgment of the lower court. The respondents, on the other hand, adopted and relied on their brief and urged the Court to dismiss the appeal for lacking merit and to affirm the judgment of the lower court.

In their brief of argument, the appellants framed the following five issues:-

a. Whether the plaintiffs’ claim is statute barred having regard to the time the plaintiffs/respondents became aware of the sale of the land in dispute to the father of the defendants/appellants in 1957.

b. Whether exhibits E1 will confer equitable interest on the defendants which has been converted into legal estate by specific performance by putting the father of the defendants into possession of the land in dispute in 1957.