Mrs. Deborah Foluke Arilewola & Ors. V. Chief Sooko D. Gbolade & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The respondents were the plaintiffs in suit No.42/2009 which they filed in the Ipetumodu Grade ‘C’ Customary Court of the Customary Court of Osun State. In their amended writ of summons, the respondents claimed against the appellants in the Customary Court as follows:

“1. Declaration that Akui Family of Akui Wanisan compound, Ile-Ife, is the bona fide owner of plot 14 including enclaves therein, situate and lying in Oyere dereserved area of Ife N.A forest reserve(F3) as shown on Resettlement plan No.TPW735 and stated Land allocation document issued and signed by The Ooni of Ife, Oba Okunade Sijuade, Olubuse II.

2. Declaration that on the reservation of Oyere area of Ife N. A. forest reserve (F3) by the Government for the resettlement of displaced land owners on the site of University of Ife now Obafemi Awolowo University, all enclaves mentioned in second schedule Ife N.A. forest reserve of 1955, including Ogunsesan Ogunleye enclave(25.6 acres) and Ladea enclave (8.6 acres) claimed by members of Ogunleye family(defendants), had ceased to be in operation since they are not perpetual, hence, the whole plot 14 was surveyed by the government in the name of Akui family without making reference to Ogunsesan Ogunleye enclave and Ladea enclave therein as shown on survey plan No. Ife 101.
3. Declaration that on the reservation of communal virgin forest at Oyere area as part of Ife N.A. forest reserve (F3) by the government in 1935. Members of Ogunleye family (defendants) cannot claim to be the bona fide owner of any portion of land within Ife N.A. forest reserve and within dereserved area of Ife N.A. forest including plot 14 allocated to Akui family by the government.
4. Declaration that members of Ogunleye family (defendants), are trespassing on plot 14 lawfully allocated to Akui family by the government in replacement of plot 14 acquired from Akui family at Modomo via Ile -Ife by the government for the site of University of Ife now Obafemi Awolowo University. These declaratory reliefs are brought in accordance with Ife Native Law, Culture, Tradition and Custom.
5. Order of injunction restraining members of Ogunleye family, their tenants, agents, representatives and privies from entering ploy 14 and acts of trespass.”.

The Customary Court heard the parties and their witnesses, visited the land in dispute and delivered judgment whereby the claim of the respondents was refused. The judgment of the customary court spans pages 27 -31 of the record. The respondents were not satisfied with the judgment of the customary court and they appealed to the High Court of Osun State, Ife Judicial Division. The lower court heard the respondents’ appeal, allowed it and set aside the judgment of the customary court.

The judgment of the lower court covers pages 151 to 162 of the record. The appellants were dissatisfied with the judgment of the lower court and they filed a notice of appeal containing 7(seven) grounds. The notice of appeal is copied at pages 163 to 171 of the record. The appellants were not satisfied with “the decision with respect to the resolution of issue 1 in favour of the Respondents and the partial grant of the first, fourth and fifth claims of the Plaintiffs/Respondents before the trial court.”

For the avoidance of doubt, Issue No.1 framed and determined in the lower court is hereby reproduced:

“(1) Whether the Plaintiffs/Appellants proved their case in the lower court on the balance of probabilities.”

In accordance with the Rules of this Court, the parties filed and exchanged briefs of argument. At the hearing of the appeal, the learned counsel for the appellants adopted the appellants’ brief filed on the 5th day of October 2009 and their reply brief filed on the 19th day of November, 2009. The appellants relied on their briefs and urged the Court to allow the appeal, set aside the judgment of the lower court and affirm the decision of the trial court. The respondents, however, urged the Court to dismiss the appeal and affirm the judgment of the lower court. In doing so, the respondents adopted and relied on their brief dated the 4th day of November, 2009 but filed on the 5th day of November, 2009. The appellants framed three issues for determination with which the respondents agreed. The three issues are:

(a) Whether the Court below was right in interfering with the findings of the trial court and holding that the Respondents proved their case before the trial court on the balance of probabilities. Grounds 1 & 6.

(b) Whether or not the right of the Appellants over the land in dispute is limited to the enclave as held by the learned Judge of the lower court. Grounds 3, 4 and 5.

(c) Whether the Honourable members of the trial court by their judgment determined the claim of the Plaintiffs/Respondents before the court.

These issues can be conveniently taken and resolved together as the valid question in this appeal is whether the lower court was right in interfering with the findings of the trial court and disturbing its decision.

In their brief, the appellants referred to the decision of the lower court, especially the findings of the learned Judge at pages 155 – 157 of the record of appeal where the first claim of the respondents was partially granted subject to the right of the Appellants to occupy and exercise ownership over their “enclave”. The appellants relied on SALIHU V. CHIDOK (1999) 8 NWLR (Pt.615) 440 at 452 and submitted that an appellate court, where an appeal is on findings of facts, is duty bound to consider the following:

“(a) Whether there was evidence to support the findings and/or the decision of the trial court.