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BAALE RABIU ADEWUNMI & ORS v. MR. AYOWOLE ADETAYO & ANOR

(2017) LPELR-42424(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of May, 2017

CA/IB/22/2013


Before Their Lordships

MONICA BOLNA'AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria


Between

1. BAALE RABIU ADEWUNMI
2. TUNJI SOTOMI
3. AKINWANDE SAVAGE
4. TAIWO MAJIYAGBE
5. RABIU ADEWUSI
6. DR BODE SOWUNMI
7. ALH SULAIMAN ADEBAYO
8. MUYIWA ADEWUNMI
9. A.V.M. FEMI OSHIGBO
10. MR. SOGEYINBO
11. DR BABATUNDE LADELE
12. MOSUDI ADEBOYE
13. KUNLE BINUTU
14. KEHINDE ADEBAKIN (Representing themselves and on behalf Of Ofada Community/Village) - Appellant(s)

AND

1. MR. AYOWOLE ADETAYO
2. DAYO SHYLLON (Trading under the style of SHYLLON PROPERTIES LTD) - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on a claim of declaration of title to land.

FACTS:
This is an appeal against the judgment of the High Court of Ogun State, Abeokuta.

The Appellants as Claimants in the High Court instituted this suit in a representative capacity for themselves and on behalf of Ofada Community/Village against the Respondents as Defendants jointly and severally claiming as follows:
%u201C(a) A DECLARATION that the Plaintiffs are the persons entitled to apply for and obtain a statutory right of occupancy in respect of ALL THAT piece or parcel of land situate, lying and being at OFADALAND.
(b) 10 million naira general damages for trespass committed by the Defendants for going onto the Plaintiffs%u2019 land without the knowledge, consent and authority of the said Plaintiffs.
(c) AN ORDER of perpetual injunction restraining the Defendants by themselves servants, agents and/or privies from committing any further acts of trespass on the land in dispute%u201D.

In their Statement of Defence/Counterclaim the Defendants counter-claimed as follows:
"(a) A declaration that the 1st Defendant%u2019s Family is the rightful owner of the land at Ofada Land and is entitled to the grant of the statutory right of occupancy on the land in dispute.
(b) Perpetual injunction restraining the Claimants from trespassing on the Late Soremekun Ofada Fletcher%u2019s family land at Ofada Town within jurisdiction of this Court.
(c) Possession of the said land.
(d) N10 million general damages for trespass."

The Claimants sued as representatives of Ofada Community/Village in Obafemi Owode Local Government Area of Ogun State. Their case was that the land at Ofada is Communal land and that the Trustee is the 1st Claimant who is the Baale of Ofada. They claimed that their respective diverse families settled in Ofada led by Soremekun and Ofagada. They claimed that Ofada land being communal land could not be disposed of by any individual without the consent of the elders of the Community. They however averred that families had authority over parcels of land allocated to original settlers with the consent of the Baale. They averred that the 1st Defendant relying on a judgment of Owode Customary Court over a fishing pond, Exhibit B/H started claiming that their family owned the whole of Ofada land and went about selling land and molesting occupants of Ofada land, hence the institution of the suit. The Claimants tendered several exhibits in support of their case.
%u200B
The case of the 1st Defendant who defended the suit as a Principal Member of Late Soremekun Fletcher family is that Ofada land was founded by Late David Soremekun Fletcher aka Ofada who was a returnee slave of Igbein origin. They led evidence of the devolution of title to the land from Soremekun Fletcher through their various ancestors to the 1st Defendant. The 1st Defendant claimed that their averment that their ancestor Soremekun Fletcher was the founder and first settler in Ofada land was corroborated by the averments in the Claimants%u2019 Pleadings.

In proof of their respective cases the parties called two witnesses each and tendered documents in support. Written addresses were filed and duly adopted. In a considered judgment, the learned trial Judge dismissed the claims of the Claimants based on contradictions in their evidence and failure to prove their root of title. On the Defendants%u2019 counterclaim, his lordship held that the Defendants proved their family%u2019s root of title as the rightful owners of the land at Ofada but that since the 1st Defendant had given evidence that his family allotted land to settlers, judgment could only be entered for them in respect of the un-allotted portions of Ofada land.

Dissatisfied with the judgment, the Claimants appealed against it and the Defendants also cross appealed.

ISSUES:
MAIN APPEAL
The Appellants in their brief of argument formulated two issues for determination. The Respondents in their brief of argument distilled three issues for determination. The Court noted that the issues formulated by the parties in the main appeal overlap. For ease the Court adopted the issues as formulated by the Appellants but rephrased and re-numbered as follows:
ISSUE 1:
Whether having regard to the totality of the evidence adduced before the Court and putting the evidence of the Appellant and that of the Respondent on an imaginary scale, the Court below was right in dismissing the Appellants%u2019 Claim and in entering judgment for the Respondents. (This issue covers Respondents' issue 2.)
ISSUE 2:
Whether the Trial Court was right when it granted the Counter Claim of the Respondents by declaring the Respondent as the persons entitled to the right of occupancy over the un-allotted portion of Ofada land and restraining the Appellants from trespassing on the un-allotted portion of land when the exact area of the allotted and un-allotted Ofada land is not shown or described with exactitude and certainty before the Court. (This covers the Respondents' issues 1 & 3)

CROSS APPEAL
In the Cross-appeal a sole issue was distilled for determination as follows:
WHETHER the Lower Court ought not to have granted the whole Counter claim as sought in respect of the entire land in dispute in the circumstance of this case based on the overwhelming and credible evidence and despite findings that the 1st Defendant's family are the rightful owners of the land at Ofada.

DECISION/HELD:
In conclusion, the Court held that the main appeal succeeds in part and it was allowed in part. The part of the judgment of the High Court of Ogun State, Abeokuta delivered on the 24th day of October, 2011 in Suit No: AB/237/2008 dismissing the case of the Appellants was affirmed. The part granting declaration of title of the un-allotted portion of Ofada land to the Respondents was set aside.

The Court found the cross appeal to be lacking in merit and it was thereby dismissed.


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