Suraju Somade & Ors. V. Otunba Ayo Jaiyesimi & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A

This is an appeal and cross-appeal against the Judgment of Olatoye, J., of the High Court of Ogun State, Sagamu, in the suit filed by the Respondents, wherein they claimed against the original Defendant (now deceased) – a declaration that “all that piece or parcel of land known as Sakura – – is the property of the Ipoji Community of Ofin Sagamu”; forfeiture of the customary tenancy of the Defendant and his family; and perpetual injunction, Pleadings were exchanged, but after a number of amendments, trial commenced with their 3rd Further Amended Statement of Claim and Plan dated 30th October 1997, filed together with an Amended Writ of Summons dated the same day.

In paragraph 51 of the 3rd Further Amended Statement of Claim, the Respondents claimed as per their writ of summons; and their claims against the present Appellants in the Amended Writ of Summons, are as follows-

1. Declaration that the Plaintiffs are the persons entitled to the Statutory Right of Occupancy over and in respect of that piece or parcel of land known as Sakura situate, lying and being at Ofin, Sagamu, Ogun State, which is more particularly demarcated by Dispute Plan No. SAC/OG/025/97 dated 18/3/97 drawn by S.O.O. Ajayi, Registered Surveyor and verged ‘RED’ filed in the action herein.
2. Forfeiture of the interest of the 1st & 2nd Defendants’ family over the portions verged “YELLOW’ in the said Plan which they hold as Customary Tenants of the Plaintiffs on the ground of misconduct.
3. Possession of the land.
4. Perpetual Injunction restraining the Defendants by themselves, their servants, agents, or privies from doing anything whatsoever on the Plaintiffs’ land.

The Respondents rooted their title to the land in dispute through one Odogu Arikemeku, a descendant of a Benin Monarch who migrated from a place called “Igboji” in the old Benin Kingdom, with his wife, Wure, their children, his relatives, his Diviner/ Ifa Priest called Tifase, and a slave called Orisakura.

On their part, the Appellants filed an Amended Statement of Defence and Counter-Claim on the 23rd of March 1998, wherein the 1st, 2nd, & 4th Appellants counter-claimed against the Respondents that they are the “persons entitled to the Statutory Right of Occupancy over the entire area known and called Sakura farmland – – and more particularly delineated and demarcated by Dispute Survey Plan No KLA/OG/70/97 of 23/09/97 (Area verged Orange). The 3rd Appellant also counter-claimed that “his family Ladejobi Family, are the persons entitled to the Statutory Right of Occupancy over the area of Ladejobi family land delineated and delineated and marked Green in the Dispute Survey Plan…..” The 4 Appellants asked for an order of perpetual injunction against the Respondents. The Appellants rooted their title through one Oba Owarodo, who partitioned his land inter vivos amongst his four children and domestics; his 3rd son , Osigade, the father of Somade who begat the Appellants was given the land, Sakura; and his 4th son Ladejobi was given the land known as Ladejobi.

At the trial that ensued, the Respondents called 8 witnesses and the Appellants also called 8 witnesses in proof of their claims, and thereafter, their counsel filed written addresses as agreed to. The lower Court delivered Judgment on the 19th of November 1999, wherein it was stated as follows-

“- – No side seems to be entitled to the Judgment of this Court. The only alternative is to non-suit the action. That relief is not claimed by either the Plaintiffs in the Statement of Claim or Reply to the Statement of Defence nor in the Statement of Defence and the Counter-Claim included therein by the Defendants. – – – I hereby call on both counsel to address me on this issue of non-suit”.

After hearing the submissions of counsel, the lower Court held as follows-

“I have considered the above submission of both counsel. Both of them seem to be apprehensive that the Ogun State High Court Rules having not specifically provided for it, this Court cannot make such an order of non-suit. It is therefore better for me to err on the side of certainty. Instead of order of non-suit, an order of striking out may be more appropriate. In the circumstances, and in view of what I said in this Judgment, that neither side is entitled to the Judgment of this Court as claimed, this case is struck out. No order as to costs”.

Both parties are dissatisfied with the above order of the lower Court and have appealed to this Court; the Appellants by an Amended Notice of Appeal containing 10 Grounds of Appeal, and the Respondents by an Amended Notice of Cross- Appeal containing 6 Grounds of Appeal. Briefs were duly filed and exchanged, and in the Cross-Appellants’ brief, a Preliminary Objection was raised as to the competence of the Appellants’ brief, on the ground that it was filed before the Court order to amend the Notice of Appeal. The objection was however not argued at the hearing of the appeal and will be discountenanced. The Appellants formulated the following 8 Issues for Determination in their brief prepared by Prince S. Ola Oyefeso-

1. Whether the Plaintiffs who rooted their title through ownership by settlement and who failed to plead their genealogy and also failed to link themselves to the person or persons that claimed to be the original settler or settlers with uncertain identity of land in dispute should not have got their action/claim dismissed as opposed to striking out.
2. Whether the land in dispute is family or communal land and whether the two are interchangeable.
3. Whether the identity of the land in dispute was certain.
4. Whether the Plaintiffs who claim possession as a relief could later turn round to contend that they have been in possession at all times material to the same suit where they are asking for possession.
5. Whether the Plaintiffs who contended that Defendants are in possession of the land in dispute or part thereof as “Isakole” paying tenants and failed to prove same could have been entitled to Judgment either for declaration of title or forfeiture or both.
6. Whether the counter-claimants who premised their claims on ownership by settlement from time immemorial and who pleaded and led credible evidence of their genealogy from the original settler to themselves (the counter-claimants) are entitled to Judgments in their favour against the Plaintiffs who failed to prove their own root of title.
7. Whether the Appellate Court is not in a position to re-evaluate the comprehensive evidence as contained in the printed record when the striking out of the Appellants suit was not based on question of credibility of their witnesses.
8. Whether the decision of the trial Court should be disturbed having regard to the evidence.

The Respondents however submitted in their brief prepared by Olaniyi Salau, Esq., that the following two issues arise for determination in this appeal –

(1) Whether the learned trial Judge did any evaluation, wrong evaluation or resolution of the conflicting evidence on vital issues in the cases of the respective parties which is capable of being disturbed or re-evaluated by the Court pf Appeal, and if the answer to the above is the negative, whether the Court of Appeal can assume the role of the trial Court to evaluate the evidence and resolve those issues by itself.

(2) Whether the Defendants/Appellants proved title to the land in dispute.

The Respondents as Cross-Appellants formulated similar Issues, as follows –