Tajudeen Amusan & Ors V. Alhaji Sadiku Sholate Orebajo & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The appeal pertains to the decision of the High Court of Justice of Ogun State sitting at Sagamu in the Sagamu Judicial Division (the court below) adjudging the respondents owners of a parcel of land located at Orile Ijagba (Sotubo) Sagamu and awarding general damages of N10,000 in trespass to the respondents against the appellants together with an order of permanent injunction restraining the appellants from committing further acts of trespass in the disputed land.

The case in the court below centred on traditional evidence of ownership of the disputed parcel of land postulated by the respondents and the appellants respectively. The court below accepted the traditional history of the respondents. It found as a fact that the respondents as members of Odofin family own the disputed piece of land by devolution from their fore-fathers and entered judgment for them as persons entitled to a statutory right of occupancy over the disputed area of the land “bounded on its sides by Oje Farmland, Imogun farmland, Mabedeje farmland and Oya farmland”.

A notice of appeal with six (6) grounds of appeal dated 24.7.2006, but filed on 31.7.2006, expressed the grouse of the appellants against the said decision of the court below. In a brief of argument dated 22.6.09 and filed on 26.6.09, but deemed duly filed on 25.11.09, the appellants through their learned counsel, Chief Oye Esan, formulated the following issues for determination in pages 4-5 of the appellants’ brief of argument-

“(1) Whether or not the learned trial judge sufficiently appraised the live issues raised in the pleadings of both parties.

(2) Whether the Defendants/Respondents are entitled to the Reliefs claimed by them having regard to their pleadings and in particular – whether the Root of title pleaded by them is proved according to law.

Whether or not the 1st Defendant can be damnified in damages in respect of family land which he says belongs to his family.

Whether the Defendants can be restrained by an order of injunction perpetual or otherwise.”

The issues above were argued in sequence.

The amended statement of defence of the 1st appellant in pages 82-88 of the record of appeal (the record) in which he pleaded his family entitlement to the disputed piece of land was referred to by the appellants vis-a-vis paragraphs 5-18 of the respondents’ amended statement of claim in pages 69-73 of the record to contend that the respondents’ pleadings which started their root of title to the disputed land from one Igara were insufficient as the pleadings and the evidence of the PW1, which rehashed the respondents’ pleadings on family history of the disputed piece of land, did not establish the acquisition of the land by settlement by one Igara; nor did the pleadings and the evidence of the respondents establish the particulars of the intervening owners through whom the respondents claim ownership of the disputed land vide Lawal & Ors v. Olufowobi & Ors (1996) 12 SCNJ 376 at 384, Akinloye & Anor v. Eyiyiola (1968) NMLR 92, Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 328, Adejuwon & Ors. v. Ayantegbe (1989) 6 SC (Pt.110) 47, Kaiyeola v. Egunla (1974) 1 All NLR (Pt.2) 426 at 431, Jules v. Ajani (1980) 5 – 7 SC 96 at 108, Alade v. Awo (1975) 4 SC 215 at 228, Adole v. Gwar (2008) 3 – 4 SC 78 at 99, Ojo v. Adeojobi (1978) SC 65 at 69 – 70, Nwokafor v. Udegbe (1963) 1 All NLR 104 at 107, Odofin v. Ayoola (1984) NSCC 711 at 720.

The appellants also submitted on the first issue that the evidence of the PW1, Oba Samson Adekoya, the Onijagba of Ijagba, in page 113 of the record to the effect that “I have never heard any name IGARA in the history of Ijagba” discredited the root of title of the respondents to the disputed land vide Oluyole & Anor v. Olofa (1958) NMLR 462 at 464-465; that the PW2 admitted under cross-examination that the Odofin Odufona family exists contrary to the pleaded case of the respondents that such family does not exist; and that the PW1 as the 1st plaintiff, now 1st respondent, admitted under cross-examination in page 106 of the record that Igara had uncountable children showing the witness did not establish the genealogy of the disputed piece of land, therefore the court below did not appreciate that the respondents did not prove their title to the disputed land as shown in the two sentences it had for the evaluation of the evidence in page 193 of the record.

The appellants submitted further on the first issue that the respondents cannot rely on acts of possession based on unproved root of title to the land vide Ayoola v. Odofin (supra), Ndukwe v. Achau (1985) 5 SC 28 at 38-39 and Dabo v. Abdullahi (2005) 2 SC (Pt.1); and with the admission of the PW1 in page 104 lines 18-23 of the record that the land in dispute is family land not stool land, the documentary evidence in Exhibits A, B, C, D and E on the Odofin Chieftaincy dispute were inconsistent with the pleaded case of the respondents and the court below should not have relied on same in its judgment.

The appellants’ submissions on the second issue was that the court below misconceived the vital issue in dispute when it relied on the Odofin Chieftaincy dispute to hold that the 1st appellant is a member of the Odofin family in disregard of paragraphs 3, 5, 9, 13, 14 – 44 of the appellants’ amended statement of defence where the 1st appellant pleaded how the respondents became entitled to the Odofin Chieftaincy without any blood affinity with the appellants which was also supported by the admission of 1st respondent under cross-examination in page 104 lines 23-32 to page 105 lines 1-5 of the record.

It was also submitted that the respondents did not prove their root of title to the disputed land and were not entitled to the award of damages for trespass and permanent injunction especially in light of the evidence of the 1st respondent, Alhaji Sadiku Solate Orebanjo, under cross-examination in page 105 lines 21-22, 28 of the record together with the evidence in page 83 lines 29-33 of the record that the 2nd – 3rd appellants bought the disputed land from the grand children of one Kehinde known to the 1st respondent as one of Aina’s children and member of Odofin Odufona family, only for the 1st respondent to deny Kehinde’s children sold portions of the land in dispute; and that Kehinde and Adebisi are not of the same family as the 1st appellant which should not have entitled the court below to declare the appellants trespassers and asked them to pay damages to the respondents in consequence.