Chief S.O. Awoyoolu & Anor V Sufianu Yusuf Aro & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The appellants herein were the appellants at Court of Appeal having lost as defendants at Lagos High Court. The respondents as plaintiffs claimed that one Ogunbuwa, a hunter and farmer who hailed from Ile-Ife, after several adventures, finally settled on a vast expanse of land at Idimu, now in Lagos State. He exercised total act of ownership on the said land by farming, hunting and establishing hamlets thereon. He also established shrines for the worship of Ogun, Moremi, Sango, Igbale, and Oro. He also gathered fruits and tapped palm wine on the land. However, he was survived by an only child, a daughter by name, Ogunbunmi. During his life time, Ogunbuwa gave Ogunbunmi to one Aina Olaofe of Ikotun as wife. Aina Olaofe then, with his wife, Ogunbunmi, settled on the land in dispute.

Thereafter, ostensibly on the demise of Ogunbuwa, Olaofe and his wife Ogunbunmi exercised maximum right of ownership over the disputed land at Idimu. The marriage produced five issues, to wit Fasenro, Bakare-Garba, Sanni, Audu Bola, and Basesomo. Audu Bola and Basesomo had died intestate and the entire estate (land in dispute) devolved on Fasenro, Bakare Garba, and Sanni as the land was not partitioned. It remained so up to today with their children in control. The family became the chieftaincy family called Aro.

The plaintiffs had remained in absolute possession for more than two hundred and fifty years, undisturbed by anybody or any adverse claim. The only exception was a challenge in suit No. 221 of 1915 – Bakare Garba v. Akinola Adenike which ended in Aro family’s favour. The interest of the family as a result of the suit was registered as No. 34 at page 34 volume 1473 of Land Registry, Lagos. However, between 1990 and 1991 the defendant SAMUEL OGUNLANA (deceased and substituted as defendants by present appellants) encroached on the land in dispute and was duly challenged by notices and letter from solicitor to the family. Thus the suit leading to this appeal when the defendants refused or ignored the notices and warnings and persisted in encroaching on the land. It must be mentioned that the original defendant who died and has been substituted was known by various aliases, to wit: “Samuel Ogunlana”, “Samuel Olu Akinogun & family” and “Odejobi Akinogun & family”.

After a long delay in effecting service of process of court on defendant, an interim injunction was granted forbidding him from further trespassing on the land in dispute. But he failed on several occasions to appear in court despite being served with the court processes.

When finally the defendants appeared, having been substituted, a statement of defence was filed denying not only every averment in plaintiffs’ statement of claim but claimed even ignorance of the existence of plaintiffs’ family. He then claimed that one Akinogun who established Ogun shrine on the land first settled there. There was also a counter-claim to the plaintiffs’ suit.

Learned trial Judge found the pleading and evidence of the defendants not only confusing but also evasive of the main issue on the land in dispute. Clearly in the statement of claim and survey plan the land is entirely at Idimu, not at lpaja. However, held the learned Judge, the confusion introduced by defendant had not by any means dampened the identity of the land in dispute. In one breath the defendant submitted his grandfather leased the land from one Akinogun, and in another that Akinogun and their grandfathers were friends and that they co-founded the land. At the end of his judgment learned trial Judge found merit with plaintiffs’ case and had nothing to believe in defendant’s case. He found the plaintiffs’ family had been exercising maximum uninterrupted possession and right over the land in dispute and that defendant encroached on it in 1990-1991. He gave judgment for the plaintiffs.

On appeal, Court of Appeal had no reason to disturb the verdict of trial court and dismissed the appeal. Thus the appeal to this court.

Before this court, the appellants main issues are that the respondents never proved that Ogunbunmi, daughter of Ogunbuwa, was married to Aina Olaofe, that Aina Olaofe and his wife Ogunbunmi settled on the land and that the two exercised maximum right of ownership on the land. This is the first issue. The second issue is whether the failure of proof aforementioned has not affected plaintiffs’ case. The third issue is whether s. 146 Evidence Act would not avail appellants because plaintiffs admitted the defendants were on the land.

What the appellants seem to demand by the first issue is proof of a marriage which produced issues some two hundred or more years ago. Are they demanding Marriage Register for that time or are they demanding witnesses to be called for that marriage To my mind, this is a departure from the big issue of who first settled on the land and has for centuries been in effective control and possession of the land. These are matters not in issue at trial in any serious manner. There is no lacuna created by failure to prove marriage in view of the overwhelming evidence before the court.

The evidence of the appellant’s presence on the land is not that of possession, but clearly of encroachment which is the subject matter of the suit leading to this appeal. The appellants’ presence on the disputed land was noticed in between 1990 and 1991, very recently indeed. For respondents to admit they noticed the encroachment is certainly not admission of possession to favour the appellant.

In a long line of decisions by this court, clear findings of facts by trial court should not be disturbed by the appellate court. If the findings are supported by evidence and are not in conflict with any law on admissible evidence, and they are not perverse or amount to a miscarriage of justice, the appellate court will give clear approval to the findings See U.A.C (Nigeria) Ltd. v. Fasheyitan (1998) 11 NWLR (Pt.573) 179 at 185, 186, 187; Vanderpuye v. Gbadebo (1998) 3 NWLR (Pt.541) 271. There is no merit in this appeal and I dismiss it with N10,000.00 costs to respondents.

SC.214/2001