PA. Adebiyi (A.k.a. Baba Lagege) & Ors. V. Mr. Olawale Abiodun Adeosola (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The respondent’s land suit against the appellants was heard and granted in a judgment by the High Court of Justice, Ota, Ogun State, (the court below) declaring the respondent’s entitlement to customary rights of occupancy and an injunction in respect of a parcel of land measuring approximately 955.913 square metres located at Lambe road, Lambe near Akute, Ogun State.

In a nutshell, the respondent bought the disputed piece of land from the appellants’ family on 23.11.93 and built a bungalow comprising two flats thereon and placed his junior brother in part of the land who had been using it to carry on the business of welding for the past twelve and half (12?) years before the present dispute arose; that in June, 2004, the 2nd – 5th appellant into the land where they physically dispossessed the respondent’s brother of half (?) of the parcel of land and put the 6th appellant in occupation of it; whilst the 6th appellant’s stance was that 1st – 5th appellants of Adebiyi family were original owners of the disputed parcel of land from which he bought part of it thereof and was placed into possession by the 1st – 5th appellants. The court below accepted the respondent’s version and rejected the appellant’s, consequent upon which it gave judgment to the respondent against the appellants.

Pursuant to an order of the Court on 23.2.09, the appellants filed an amended notice of appeal with six grounds of appeal dated and filed on 16.2.09, but deemed properly filed on 23.2.09.

The appellants’ brief of argument dated and filed on 31.3.09 raised three issues for determination as follows:

“a. Whether the plaintiff/respondent led credible evidence as to entitle him to judgment.

b. Whether the judge relying on unpleaded facts and allowing same to affect his consideration of the matter in issue resulted in miscarriage of justice.

c. Whether the learned trial judge was right in dismissing the counterclaim of the Defendants/Appellants.” Issue (a) was related to grounds 1, 3, 4 and 5 of the amended notice of appeal under which the appellants submitted that the oral evidence and Exhibits A and E tendered for the respondent conflicted with paragraphs 5 – 7 of his statement of claim at pages 34 of the record of appeal (the record) on the date of Exhibit A, the purchase receipt, and Exhibit E, the survey plan, were made showing the survey plan was dated 2.11.93 before the purchase receipt dated 23.11.93 contrary to the oral evidence of the respondent as PW3 at page 94 lines 13-14 of the record that the date of survey of the disputed piece of land came after the date of the purchase receipt evidencing purchase of the disputed land by the respondent coupled with the evidence of the respondent that he was present at the time of signing the sale agreement but allowed his junior brother who is less literate than him to sign the sale agreement boiled down to deduction or conclusion that the respondent did not buy the disputed land from the 1st – 5th appellants and the documents tendered in respect of the transaction are “concocted falsehood”, forged or that the PW1 lied on oath establishing that the respondent’s irreconcilably contradictory case inclusive of his prevarication on whether he knew the 1st – 5th appellants as members of Adebiyi family did not discharge the burden of proof placed on him under sections 135 – 137 of the Evidence Act read with section 132(1)(9) and 3 thereof and the cases of Okhuarobo v. Ighareuba (2002) 5 SC (Pt. 1) 141, Eze v. Atasie (2000) 6 SC (Pt.1) 214 at 219, Ezemba v. Ibineme (2004) 7 SC (Pt.1) 56, Shittu v. Fasawe (2005) 7 SC (Pt. 11) 107 at 117 and Olohunde v. Adeyoju (2000) 6 SC (Pt. 11) 118 at 125 – 126.

In arguing issue (b) related to ground 6 of the notice of appeal, the appellants stated that the issue of insanity of one Alhaji Kokumo Adebiyi was not pleaded but only mentioned by the PW3 which went to no issue and the court below was in error when it heavily relied on it to arrive at its judgment occasioning miscarriage of justice to the appellants vide Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 208 and Civil Design Construction Ltd. v. SCOA Nig. Ltd. (2007) 2 SC 195 at 235; that the head of Adebiyi family denied the transaction in Exhibit A and the appellants plead and proved fraud in the making of Exhibit A which the court below overlooked to arrive at a “perverse” decision contrary to the facts pleaded and given in evidence by the appellants and the said judgment should be set aside vide Ugochukwu v. Cooperative and Commercial Bank Ltd. (1996) 6 NWLR (Pt. 456) 537. Baridan v. State (1994) 1 NWLR (Pt. 320) 250 at 260.

Arguing issue (c) covered by grounds 3 and 4 of the notice of appeal, the appellants referred to their evidence that the 1st – 5th appellants sold ? plot of their family land to the 6th appellant, but not to the respondent to contend that the court below did not properly evaluate the said pieces of evidence against the backdrop of the deficient evidence of the respondent lacking particulars of the vendor letting him into possession of the disputed land in the presence of witnesses and the lack of pleading and evidence of names of the persons that witnessed the sale transaction which tilted the case in favour of the appellants that the respondent was not in exclusive possession of the disputed portion of land to warrant the court below entering judgment for him in respect of it vide Cole v. Folami (1956) 1 FSC 66, Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351 at 362, 364 and 366, Ojelade v. Soroye (1998) 5 NWLR (Pt. 549) 284 at 303, Erinosho v. Owokoniran (1965) NMLR 479, Olugbenga v. Ajagungbade III (1990)? (Pt. 141) 661, Ogunbambi v. Abowab (1951) 13 WACA 132, Orosanmi v. Idowu 4 FSC 40.

Consequently, it was argued that the counter-claim should have been granted by the court below based on proof of title to the land by 1st – 5th appellant and the 6th appellant’s purchase of ? plot of land from them evidenced by Exhibit J and the survey plan in Exhibit K together with the evidence that the 6th appellant took possession of the ? plot of land in vacant condition and erected an uncompleted building on it up to lintel level vide Okelola v. Adeleke (2004) 7 SC (Pt.1) 33 at 37.

The respondent’s brief of argument dated 21.10.09 and filed on 25.10.09 but deemed properly filed on 3.11.09 followed the issues for determination of the appellants with preliminary objection that there are two separate notices of appeal – one by the 1st – 5th appellants and another by the 6th appellants, therefore there is no valid notice of appeal to predicate the appellants’ appeal, and the appeal should be struck out on that ground.

The respondent’s brief argued in the alternative that he had been in unbroken possession of the disputed land for eleven (11) years since 1993 and had erected a building comprising two flats on part of the land and had placed his brother in ? plot of the land who operated a workshop on it since 2004, before the 1st – 6th appellants caused the ? plot of land to be fenced and forced respondent’s brother out of the disputed land, when the 2nd – 5th appellants are grandchildren of Adebiyi family that sold the disputed land to the respondent and do not have any role to play in the sale of Adebiyi family land without over the head of their parents who are the direct children of Adebiyi vide Lewis v. Bankole (1909) 2 NLR 82, Atolagbe v. Sodunka (1985) 1 N.L.R (?) (Pt.2) 36, Osafile v. Odu (?) (1994) 2 NWLR (Pt. 325) 175, more so there was serious discrepancy between the evidence of the 2nd appellant at page 101 of the record that the ?  plot of land was sold to the 6th appellant in 2003 and the pleadings of the appellants to the contrary that it was bought in 2004.

The respondent’s brief argued on the second issue that the issue of insanity of one Alhaji Kokumo Adebiyi emerged from the cross-examination of the respondent by 1st – 5th appellants’ counsel at the court below and is a diversion from established fact that the respondent bought the disputed land from Adebiyi family and the court below was right to hold at page 159 of the record that the omission to call Alhaji Kokumo Adebibi as a witness was not fatal to the respondent’s case.