Shittu Onigbede And Ors V. Samuel Balogun (2002)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C. 

The plaintiffs who are respondents in this appeal sued the defendants, now appellants, claiming as per paragraph 38 of their amended statement of claim-

(a) Declaration of statutory right of occupancy to all that piece and parcel of land known as Odoso family land situate, lying and being along lkare-Owo Road, Ikare-Akoko, delineated on plan to be filed hereafter.

(b) Forfeiture of all the rights and interests whatsoever of the defendants as customary tenants on the portion of the aforesaid land granted to them by the plaintiffs family.

(c) Perpetual injunction restraining the defendants, their servants, agents, privies and all persons claiming by and through them from further entry on the said portion of the plaintiffs’ family land aforesaid.”

Pleadings were filed and exchanged and, with leave of court, amended. The plaintiffs filed a reply to the defendants’ amended statement of defence. The action proceeded to trial at which both sides led evidence in support of their respective cases. At the conclusion of trial, and after addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment, found for the plaintiffs and adjudged as hereunder:

“Consequently, plaintiffs are awarded judgment for –

(a) a declaration of statutory right of occupancy to all that piece and parcel of land known as Odoso family land situate, lying and being along Ikare-Owo Road, Ikare-Akoko, delineated and edged ‘Red’ on the plan marked ‘A’ in these proceedings.

Forfeiture of all the rights and interests whatsoever of the defendants as plaintiffs customary tenants on the land in dispute described thus in paragraph 3 of plaintiffs’ amended statement of claim:

‘The land which is the subject matter of this suit is situate, lying and being along Ikare-Akoko which is within 5 miles of the township of Ikare, as shown on Survey Plan No FD/914 made by A. O. Adebogun, licensed surveyor filed with this statement of claim and thereon edged ‘RED’ is also ordered. Plaintiffs are entitled to perpetual injunction and the same is accordingly granted.”

The defendants were displeased with this judgment and appealed to the Court of Appeal (Benin Division). That court dismissed the appeal. They have further appealed to this court. Their notice of appeal filed on 6/2/98 contained 16 grounds of appeal while the notice of appeal filed on 16/2/98 contained 5 grounds of appeal. It is, however, the first notice of appeal that was exhibited to the motion papers brought before the court below praying for a stay of execution of the judgment of that court and for leave to appeal to the Supreme Court on grounds of facts and mixed law and fact, which prayers that court granted on 5th March, 1998. I shall, therefore, consider the notice of appeal filed on 6/2/98 and which the court below, by order made on 5/3/989 deemed as properly filed and served, as the notice of appeal upon which this appeal is predicated. Pursuant to the rules of this court the parties filed and exchanged their respective briefs of argument. The appellants’ brief raised 9 issues as calling for determination in this appeal. The plaintiffs, in their respondents’ brief, adopted the 9 issues. The issues are:

“1. Whether the lower court was right in dismissing the appeal, when the trial High Court had no jurisdiction to try the case Ground 1. “.

2. Whether the Justices of appeal were right in affirming the declaratory order that the land belong to the respondents’ Odoso family when the respondent’s case was that Urere the original settler on the land was survived by four children of which Odoso family is only one but without any evidence of the partition of the land in dispute to the Odoso family Ground 2.
3. Whether the lower court was not in error to have affirmed that the appellants are customary tenants of the respondents and order forfeiture against the main view of that court’s finding of trespass against the appellants and whether forfeiture was rightly granted against them Grounds 3, 4, 5, 6, 10 and 11.
4. Whether the Justices of appeal were right to have waived the need for a visit to locus in quo by the trial Judge and the making of a finding of fact in respect of the features on the land. Ground 7.
5. Whether the Court of Appeal was right in deciding this case against the appellants on the ground that they did not prove where Urere settled on, on the land when they are only defendants in the suit Ground 6.
6. Whether their Lordships of the appeal were not in error to affirm that Exhibit ‘L’ constituted estoppel against the appellants in this case Ground 9.
7. Whether their Lordships of appeal were right in their conclusion that the trial High Court rightly decided the case on traditional evidence alone Ground 12.
8. Whether the appellants were given fair hearing and had their case properly considered by their Lordships of the 4 appeal.
9. Whether the judgment delivered by the appeal court was ‘not a nullity Ground 15.”

At the oral hearing of the appeal, Mr. Okunloye, learned counsel for the defendants abandoned Issue 1 predicated on ground 1 of the grounds of appeal. Learned counsel took this course in the light of the decision of this court in Adisa v. Oyinwola (2000) 10 NWLR (Pt.674) 116,178-179 which had held that the High Court had jurisdiction to try land matters whether situated in urban or rural area. Both Issue 1 and ground 1 are, accordingly, struck out by me. Before resolving the remaining issues placed before us, I need give a resume of the facts in this case. The case of the plaintiffs, in a nutshell, is that they are the owners of a large tract of land in Ikare area and that defendants are their customary tenants over a portion of their land shown on their plan, exhibit A. The defendants, on the other hand, claim that they are joint owners with the plaintiffs of the land. There were previous litigations between the parties over the claim of the defendants that they were members of the same “family with the plaintiffs, which the latter denied. The litigations eventually resulted in plaintiffs’ favour in Suit No. CA/13/131/88 where the Court of Appeal decided that the defendants are not members of the plaintiffs’ family.

I shall now proceed to consider issues 2-9.