Sunday Abiona V. Adeleye Ogunjobi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

On the 25th October, 2006, the Hon. Justice M. A. Dipeolu (J)., of the Ogun State High Court of Justice Holden at Ilaro Judicial Division, delivered a judgment against the Appellant as Plaintiff and in favour of the Respondents as Defendant. In this judgment the Plaintiff is referred to simply as the Appellant and the Defendant simply as the Respondent.

At the trial court, the Appellant claimed as per his writ of summons dated the 16th of August, 2004 (pages 1-2 of the record), and sought the following reliefs:-

(a) “A declaration that the Plaintiff is entitled to the statutory right of occupancy to that piece or parcel of land situate, lying and being at Eyekanse Village, Via Oke-Odan Ogun State.

(b) Injunction restraining the Defendant, servants, agents or privies or however described from further trespass on said Plaintiff’s land.”

The facts which culminated into this appeal is that the Appellant is alleged owner of the land situate, lying and being at Eyekanse Village, Via Oke-Odan acquired by his ancestor Abiona first settled in the land. The said Abiona came from Oyo. That the Respondent who was a tenant who had been dispossessed of the land disturbing the peaceful occupation of the land. The Respondents on the other hand claim ownership of the land and allege that they are the first settlers through their grandfather Thomenu who came from Hundo in the Republic of Benin.

That Thomenu was succeeded by his own father, Ogunjobi whom he also succeeded to become the owner.

Pleadings were filed and exchange, Exhibits tendered and witnesses were also called by both Parties.

At the close of the case, the trial court gave judgment against the Appellant. Dissatisfied with the decision, the Appellant filed a Notice of Appeal dated the 6th December, 2006 as contained at pages 51-55 of the records.

When the appeal came up for hearing on the 10th day of February, 2014, the learned Counsel each adopted their respective briefs of argument. Olu Akinsanya of learned counsel for the Appellant adopted the Appellant’s brief of argument dated 10th August, 2007 and filed on the same day but deemed filed on the 10th February, 2014. Counsel raised and argued 4 issues for determination as follows:-

1. “Whether the learned trial Judge was right in dismissing the Appellant’s claim on the ground that the identity of the land claimed by the Plaintiff is not clear.
2. Whether the learned trial Judge was right in dismissing the Appellant’s claims after having held that the Appellant proved his genealogy, and possession of the land in dispute.
3. Whether having rightfully held that there are contradictions in the Respondent’s claims to possession of the land in dispute, the learned trial Judge ought not to have upheld Appellant’s claims.
4. Whether the learned trial Judge rightfully concluded that Appellant’s family were not the first settlers in Eyekanse because they hold the title Osi Baale of Eyekanse.”

Ayodole A. Omoniyi of learned Counsel adopted and relied on the Respondent’s brief of argument dated 25th October, 2007 and filed on the same day but deemed filed on the 10th February, 2014. Counsel raised and argued 3 issues for determination different from those of the Appellant as follows:-

1. “Whether the Plaintiff could be said to have sufficiently proved the identity of the land in dispute.
2. Whether a Plaintiff will get judgment automatically relying on the weakness of the case of a Defendant who has no counter claim.
3. Whether an error of the court which does not substantially affect the case can lead to a reversal of the judgment.”

This appeal shall be determined on the issues put up by the Appellant. However, issues 2, 3 & 4 shall be taken together and shall be taken first.

Issue 2, 3 & 4

Learned counsel for the Appellant refers this court to page 46 line 15 of the record to the fact that the Appellant proved his genealogy and how he came about the land and also the holding of the trial Judge on the contradictions in the evidence of the Respondent and his witness as to who first settled in the land (page 48 line 20 of the record).