Samuel Akoledowo & Anor. V. Taye Adeleye Ojubutu & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Ondo State, Akure judicial division, the appellants herein as plaintiffs in their amended statement of claim dated 11/6/2002 claimed from the 1st – 3rd respondents as defendants Declaration of Customary right of Occupancy, damages for trespass and an order of perpetual injunction in respect of a piece of land situate and being at Okuta-Afa off Akure Road Ita-Ogbolu in Ondo State.

With the leave of the court the 4th and 5th respondents/defendants were made parties to defend the action of the appellants/plaintiffs on behalf of themselves and Adedulu Ologbosere family of Ita-Ogbolu. The defendants had counter-claimed for declaration that the land in dispute is the joint property of both the plaintiffs and the defendants. The defendants also claimed forfeiture of all contracts of sale of portions of the land by the plaintiffs or in the alternative, payment to the defendants by the plaintiffs of specified and unspecified sums of money.

Pleadings were exchanged. The parties gave evidence and called witnesses. It was common ground between the parties that the land in dispute originally belonged to one Chief Elemo Afa in Ita-Ogbolu popularly called AFURURU-BI-OLOYE. The plaintiffs traced their claim to exclusive ownership of the land in dispute to Chief Elemo Afa but did not plead or lead evidence of the root of title of Chief Elemo Afa. The defendants also traced their claim to joint ownership of the land with the plaintiffs to the same Chief Elemo Afa on the ground that they are both members of the same extended family.

The defendants also did not plead or lead evidence of the root of title of Chief Elemo Afa. In a judgment delivered on 4/5/06, both the claims of the plaintiffs and the counterclaim of the defendants were dismissed. The plaintiffs being dissatisfied with the judgment of the trial court filed a notice of appeal containing six grounds of appeal. Out of the six grounds of appeal, the plaintiffs now appellants formulated six issues for determination. The respondents in their brief of argument gave notice of intention to raise a preliminary objection relating to the competence of some of the grounds of appeal and the issues formulated there from. Subject to the preliminary objection, the respondents adopted the six issues formulated by the appellants.

During the hearing of the appeal on 28/3/12, learned counsel for the respondent did not argue the preliminary objection raised in their brief of argument. The preliminary objection is consequently deemed abandoned. It is hereby struck out. See Eneoli v Oraekwe (2005) 1 NWLR (Pt. 961) 342 @ 350 – 351 H – A.

Ground 1 of the notice of appeal states:-

“The learned trial judge misdirected himself in law to hold that the evidence of traditional history of the plaintiffs as to their title to the land in dispute is inconclusive and must fail whereby all the claims of the plaintiff were dismissed.”

The particulars of the misdirection were given thus:-

(1) That Elemo-Afa (AFURURU-BI-OLOYE) was the original owner of the land in dispute as pleaded by the plaintiffs was admitted by the defendants in their pleading.

(2) The right of the plaintiff to the land in dispute was admitted by the defendants.

(3) Ratio in Thomas v. Holder (1964) 12 WACA 78 “that where a plaintiff traces his title to one whose title to ownership has been established then the onus is on the defendant to show that his own possession is of such a nature as to oust that of the original owner” applies.

What learned counsel has set out as the particulars of the misdirection in law are clearly not any such particulars of the alleged misdirection. Order 6 Rule 2 of the Court of Appeal Rules 2011 provides that where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. In the case of Amuda v. Adelodun (1997) 5 NWLR (Pt. 506) Adio JSC observed:-

‘The law is that the particulars and nature of the error or misdirection alleged in relation to a ground of appeal should be the specific reasoning, findings or observations in the judgment or ruling in question relating to the error or misdirection complained of. They should be the enumeration of the error or misdirection in the judgment or ruling. See Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265.”