Oba Olayode Oyegade & Ors. V. Oba James Adeleye Oyelowo & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A., OFR: (Delivering the Leading Judgment)

This is an appeal and cross-appeal against the judgment of Abimbola J., of the High Court of Justice Oyo State sitting at Ogbomosho delivered on the 30th July 2001. In the said High Court below in Suit No. HOG/35/99, the present Respondents as plaintiffs had in paragraph 26 of their Statement of Claim dated the 11th August 1999 and contained at pages 4-9 of the Record of Appeal claimed as follows against the present Appellants as Defendants –

(a) The sum of One Million Naira (N1,000,000.00) being damages for acts of trespass and unlawful destruction of the Plaintiff’s property with the following as particulars of damage –

(a) Special Damages – N27,700.00

(b) General Damages – N523,300.00

TOTAL – N1,000,000.00

(b) AN ORDER OF perpetual injunction restraining the Defendants, their agents, servants or any other person however claiming power or authority from them from further trespassing on the Plaintiffs’ land, assaulting persons and damage properties situate and lying at Aguodo in Ogo Oluwa Local Government, Oyo State.

The then Defendants (now Appellants) filed their Statement of Defence which was subsequently amended. The Amended Statement of Defence which is dated the 28th February 2001 and amended pursuant to an order of Court dated the 13th February 2001 is contained at pages 28-31 of the Record of Appeal. The Respondents’ (then Plaintiffs) Reply to the Amended Statement of Defence dated 4th April 2001 is contained at pages 32 and 33 of the Record of Appeal. Pleadings having been thus filed and exchanged between the parties the case proceeded to be heard. The Respondents as Plaintiffs called three witnesses while the Appellants as Defendants called six witnesses. A number of Exhibits were tendered and admitted. What can be gleaned from the Respondents (then Plaintiffs) statement of claim is that the Respondents had at all material times been enjoying undisturbed occupation and ownership of the land the subject matter of this action having only been challenged by one Joseph Oyetunji, the then Alajaawa of Ajawa in Suit No. HOY/36/68 between JOSEPH OYETUNJI ALAJAAWA V. BAKARE AYOOLA LAGBEDU which Suit was dismissed on the 10th June 1971 and the said judgment affirmed by the then Western Court of Appeal in CAW/25/72 delivered on the 27th April 1973 to which judgment there was no further appeal. Sometime in 1998, some of the Appellants and other persons acting on the instruction of the 1st Appellant trespassed on the land belonging to the Respondents at Aguodo, destroying in the process, valuable properties belonging to the Respondents and members of the Respondents’ families. A report made by the Respondents to the Area Commander Nigeria Police Station Owode Ogbomoso resulted in the arrest and prosecution of the Appellants in the Magistrate Court Ogbomoso which charge was however struck out on technical grounds which the Appellants interpreted as victory for them and further trespassed and destroyed properties on the Respondents’ land. The Respondents further averred that on the 3rd May 1999 and 18th May 1999, the Appellants further trespassed on the said land and assaulted and brutalized anyone found in the said Aguodo Village including the 2nd Respondent who was Baale and head of the village. They destroyed properties of the Respondents and carried away valuables causing the people of Aguodo to live in fear and for some to desert the town. Apart from reports made by the Respondents to the police, a petition was written by Respondents’ Counsel to the Commissioner of Police Oyo State on the matter.

In their Amended Statement of Defence dated the 28th February 2001 at pages 28-31 of the Record of Appeal, the Appellants as Defendants averred that the 2nd Respondent was never a traditional ruler and Baale of Aguodo which according to them is one of the villages that comes within the domain and control of the Onidewure the 1st Appellant, and like the other Villages, paid customary tribute or Ishakole to the previous Onidewure until recently when the 1st Respondent attempted to incite the various customary tenants urging them not to pay Ishakole to the 1st Appellant. Appellants denied giving instructions to people to trespass on and destroy properties of the Respondents when in fact the Respondents were customary tenants of the Appellants even to date. Appellants further averred that the people charged to the Magistrate Court were discharged and acquitted on all eight Counts. Appellants went on further to deny the acts of further trespass on the 3rd May 1999 and the 18th May 1999 and the destruction of the Respondents’ properties. They averred that the items of property allegedly destroyed by the Appellants are one and the same as those in the MOG 241c/98 for which the Appellants were all discharged and acquitted. The Appellants maintained that Charge No. MOG 241c/98 before the Magistrate Court was not struck out on technical grounds and that all the Appellants facing that charge were discharged and acquitted on all eight counts. The Appellants further averred that they are law abiding citizens and never attacked any village including Aguodo who are its customary tenants. They also denied any suggestion that they trespassed and damaged properties belonging to the Respondents, and claimed that the claims of the Respondents are frivolous, vexatious, misconceived, speculative and a flagrant abuse of court process.

In their Reply to the amended statement of defence the Respondents as Plaintiffs denied the averments in the Amended Statement of Defence describing them as mere concoction, irrelevant and of no consequence in the case. More especially they reiterated that the 2nd Respondent is a traditional ruler and head of Aguodo, a fact which they alleged the Appellants had become aware of way back in 1968. The Respondents averred that any purported bestowal of Aguodo land and others to the 1st Appellant was mere fiction. They denied payment of Ishakole, being customary tribute to the Appellants or their predecessors in title. The Respondents further averred that there was no record of payment by any Alaguodo of tribute to the 1st Appellant as there was never a meeting of tenants of the 1st Appellant which was attended by any of the Respondents. They also averred that there was no previous civil action between the Respondents and Appellants just as there is no previous judgment that binds them in favour of the Appellants. The Respondents therefore claimed that the Appellants as Defendants’ defence is frivolous, irrelevant and of no consequence.

After a full trial and addresses of Counsel, the learned trial Judge granted the reliefs sought for by the then Plaintiffs. Dissatisfied the Defendants (now Appellants) filed a sole ground of appeal and leave to file additional grounds of appeal was granted on the 18th October 2007. Leave was also granted to amend the Notice of Appeal. The Amended Notice of Appeal which incorporates all the grounds of appeal i.e. the sole ground and the additional grounds of appeal is reproduced hereunder –

GROUND 1 – The learned trial Judge erred in law when he awarded Special Damages to the tune of N427,700.00 and N50,000.00 general damages against the Defendants despite (sic) nothing was brought to Court as Exhibits to prove the alleged damages.

PARTICULARS –

(a) The Court as Umpire is to weigh the evidence of (sic) party to proceeding and not in position to fish for evidence for a party.