Chief Samuel Omole & Ors V. Lawrence Ayo Oloruntimehin & Anor (2005)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

The Appellants were the Plaintiffs in the lower Court, who had sued the Defendants now Respondents, seeking for a declaration of title, trespass and general damages, For the sake of clarity, I reproduce the claim of the Plaintiffs before the Customary Court Ekiti East Grade 1, as follows:-

“(a) A declaration that the piece or parcel of land senate lying and being along Ajowa road Omuo Oke Ekiti East Local Government, which said Piece or parcel of land is known and called Atanlegbewa is the property of Arufe Community under and by virtue of Omuo native Law and custom and thence entitled to the Customary right of occupancy.

(b) An order nullifying the land allocation certificate or any other document howsoever relating to or connected with the said piece or parcel of land Issued to the defendants or any of them or any other person whatsoever or their agents, privies, servants or any other person purporting to derive title from the defendants by Ekiti East Allocation committee or any other person, body or government functionary either in Ekiti East Local Government or Ekiti State Government purporting to confer title of the land on the defendants.

(c) N2,000.00 General Damages for trespass committed and still being committed by the defendants on the said land.

Claim not admitted by the defendants”.

The Defendants in that court denied the claims. Evidence produced by both, Plaintiffs called three witnesses. Two witnesses testified for the Defendants. The court visited the locus in quo and some observations were made by the court on page 13 of the record dated 3019/98. It appears that learned Counsel to both parties did not deem it fit to address the court.

On 14th day of October, 1998, judgment was entered in favour of the Defendants and struck out the suit filed by the Plaintiffs. On page 18 of the Record the Senior President of that court Mr. D. C. Dada and a member Omole Esq. says:-

“From the evidence of the second defendant it is clear she does not need the land for her child or herself because she has built her own house and that of her son in under construction.”

Rather, she is fighting for the land for the entire family of her husband. One question strike this court, why has the entire family not made use or develop the land since 1946 which is about 52 years ago? The court believes that failure of the Oloruntimehin family to develop the disputed land makes the Arufe community wants to claim the land back for their own community wants to claim the land back for their own community use. From all the above observations, the court believes that a plot of the whole land is in dispute and the other plot is vacant. The only area in dispute is the surveyed plot and it belongs to the defendants.

COURT ORDER:- It has been established that the disputed Plot is that of the Oloruntimehims. The case is hereby struck out”.

The Plaintiffs therein appealed to the High Court of Justice Ekiti State, holden at Ikale. Notice of Appeal containing for grounds of appeal were filed together with additional ground of appeal with the leave of the lower Court.

Learned Counsel to both parties addressed the court. Ruling was reserved on whether or not grounds 2, 3 and 4 of the additional grounds of Appeal are competent. On 29/9/99, ruling was given holding that those grounds in question are competent. See page 36 where Kayode Bamisile J. says:-

“It therefore seems to me that the interest of justice demands that parties in appropriate cases, should be afforded a reasonable opportunity for their rights determined on the merit so long as the equities of the matter are not defeated and no injustice to the other party is hereby occasioned. See also, the case of Abiegbe and others Vs. Ilugbodume and other (1983) NSCC page 26 consequently Grounds 2, 3 & 4 filed and argue (sic) as additional grounds of appeal is hereby granted and deemed as properly filed and served on the respondent”.