Mr. P. Ogunyanwo & 4 Ors. V. M/s Augusta Oluwole (2009)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
This is an appeal against the judgment of Abeokuta High Court, Ogun State presided and delivered by G. A. Bakare, J on 14-10-1998.
The brief facts culminating in this appeal are as follows. This matter was instituted at the High Court by the Plaintiff, but now Respondent. By her 3rd amended statement of claim, she sought the following declarations and other reliefs against the Defendants but now Appellants as follows:-
“1. A declaration that the Plaintiff is entitled to a grant of certificate of occupancy over the piece of land situate, lying and being at Prison Street and more particularly described in survey plan No.LEL/C2000/62 dated 6th August, 1962.
- The sum of N3,000,000.00 being special and general damages for the acts of trespass committed by the 1st and 2nd Defendants who illegally jumped on the said land and carried out building operation.
- A declaration that the purported sale of portion of the said land in dispute for the 3rd and 4th Defendants in favour of the 1st and 2nd Defendants is void ab initio as there was no more title to pass to the 1st and 2nd Defendants in 1994 when the Plaintiff had bought same since 1932.
- Perpetual injunction restraining the 4th Defendant, their agents, servants and privies from going upon the said land again.”
As stated by the learned trial judge in his judgment, the Respondent as plaintiff, called a total of 7 witnesses in support of her case and also tendered several exhibits to establish her case, while the present Appellants as Defendants, called also 7 witnesses and tendered numerous judgments with a view to establish that Joseph Oluguna was not their family head of Banmowu family in 1932. After reviewing the case of both parties and their addresses, the learned trial judge delivered on 14/10/1998 considered judgment in favour of the Respondent. Dissatisfied with the decision, appellants filed their respective notices of appeal containing 12 grounds which was dated 3/6/05 but filed on 6/6/05.
As allowed by rules of this court, parties filed their respective briefs including the Respondent’s preliminary objection which has been argued in her Respondents brief and reacted to by the Appellants in their reply brief and all were duly filed within stipulated period. From the 12 grounds of appeal, Appellants have distilled and formulated 5 issues that read as follows:-
“i. Whether the trial court was right to have relied on the survey plan No.LEL/C2000 of 6/8/62 tendered as Exhibit B to declare that the Plaintiff/Respondent was entitled to a grant of certificate of occupancy over the land bought by Plaintiffs father vide Exhibit A.
ii. Whether the vendor named in Exhibit A, namely, Joseph Oluguna, was at all material times relevant to the making of the purchase agreement (Exhibit A), the Banmowu family head.
iii. Whether Banmowu family or Banmowu family head had in 1932 passed any title in the disputed land to Plaintiff/Respondents’ father which can be supported by long possession, laches and acquiescence.
iv. Was the trial court right in law when it held that 1st and 2nd Defendants/Appellants were trespassers on the land in dispute?
v. Was the trial judge right in his decision when he awarded N300,000.00 special damages against 1st and 2nd Defendants/Appellants?”
In opposing the appeal, learned counsel for the Respondent has raised 2 issues for determination and they read thus:-
“1. Whether the sale of the land in dispute to the Respondent’s father by Joseph Oluguna was proper and valid and conveyed any title on him to which the Respondent could succeed.
- Whether the award of N300,000.00 special damages against the Defendants/Appellants was not in the circumstances of the case right?”
Learned counsel for the Respondent had earlier on filed and served the Appellants a Notice of preliminary objection against the competence of Appellant’s grounds 1, 2 and 3 from which the first issue in the Appellant’s brief of argument is distilled on the basis that the issue does not arise from the judgment of the trial court. In other words, the respondent is saying that the said 3 grounds raise issues which were not in issue or controversy before the trial judge on which his Lordship could have reached a decision. To support her contention, the Respondent referred and relied on the following decided Supreme Court cases, namely TINUBU VS. I.M.B. (2001) 16 NWLR (pt.740) 670; HONIKA SAWMIL NIG. LTD. VS. HOLF (1994) 2 NWLR (pt.326) 252; ADENIE VS. OLUDE (2002) 18 NWLR (pt.799) 413, 433 – 4. The Respondent has contended that a careful examination of grounds 1, 2 and 3 of the Appellants notice of appeal will show that the ground raise the issue of the identity of the land in dispute, and then submitted that the identity of the land was never in issue before the trial court, and that the Defendants now Appellants never denied knowledge of the identity of the land especially as their witness, DW2 who was the 3rd Defendant at page 119 of the record, had clearly stated on oath that, -” I know the land in dispute. It is situated at Prison Street, Sanyindo, Sagamu.” The Respondent has further contended in her preliminary objection that the Appellants at the trial court, had never been misled as to the identity or the location of the land in dispute. That it is trite law that before the identity of the land in dispute can be held to be in issue as the Appellants would want to raise In their grounds 1, 2 and 3, the Defendants/Appellants must have been denied the knowledge of the location of the land in their pleadings in defence, and that in the instant appeal, the Appellants did not in their statement of defence make an issue on the identity of the land. The Respondent has urged this court to allow the preliminary objection and strike out grounds 1, 2 and 3 of the Appellants notice of appeal along with the first issue argued by the Appellants.
In reply to the objection, the Appellants filed on 4/11/08 their reply brief and was deemed filed on 17/11/08 by the order of this court. The Appellants are of the view that the alleged grounds of appeal do not raise new issues that the grounds are complaining that the decision of the trial court is not sustainable, having regard to the documents or exhibits in evidence as put out by the Plaintiff/Respondent and the pleading.
On their grounds 1 and 2, the Appellants are contending that the Respondent’s exhibit A and B relied upon by the trial judge in his judgment, lack cogency and credibility because (a) there are irreconcilable contradictions and the declaration of the trial court on the other. Appellants then submit that it is of no moment that their witness DW2 (3rd Appellant) said he knew the land in despite; and (b) that it is trite law that plaintiffs do not win declaratory suits on the bare admissions of the defendants. That Plaintiff must prove his case. Appellants relied and referred to the cases of YAKUBU VS. JAUROYEL (2005) ALL FWLR (pt.283) 184, 206; SHITTU VS. FASAWE (2005) ALL FWLR(pt. 278) 1007, 1031. On ground 3, the Appellants submit that it is not raising new issue, but issues before the trial court. That the Respondent’s case was that the land her father bought, was a Banmowu family land through Joseph Oluguna. In conclusion, counsel for the Appellants have urged this appellate court to dismiss the preliminary objection and hold that their grounds 1, 2 and 3 are competent.
In the first place, a notice of preliminary objection must be done in accordance with the rules of this court. Before the present rules of this court, 2007 came into force, it was Order 3 Rule (15) (d) of the Court of Appeal Rules 2002 that prevailed on compliance, see ODU VS. AGBOR-HEMESON (2003) 1 NWLR (pt.802) 624; MASHUNARENG VS. ABDU (2003) 11 NWLR (pt. 83) 403; As done by the Respondent and the Appellants, the preliminary objection was argued for and against, when the substantive appeal was being heard, moreso as earlier stated, the Respondent had encompassed his objection in his Respondent’s brief and the Appellants made their reply in connection with the objection. See ABDUL VS. BENSU (2003) 16 NWLR (pt. 845) 59; OGUN STATE GOVERNMENT VS. DALAMI (NIG.) LTD (2003) 7 NWLR (pt.818) 72.
In the instant objection, it is not to dismiss the entire appeal, but to strike out grounds 1, 2 and 3 and Appellants issue No. 1. I am therefore of the view that it is necessary to look at the Appellants grounds 1 – 3 complained on pages 1 to 3 of the Appellants Notice of Appeal filed on 6/6/05 as allowed by this court. The grounds read thus:-
- Error in law
The learned trial judge erred in assuming that the mere tendering of Exhibit B (the survey plan) without more defined what was sold to the Plaintiff’s father in 1932 when he declared as follows:-
“I declare that the Plaintiff is entitled to a grant of certificate of occupancy over the piece or parcel of land situate, lying and being at Prison Street, Sagamu and particularly described in survey plan No. LEL/C2000 of 6/8/62.”
Particulars of error
a) The trial judge simply assumed that the land described in Exhibit B (survey plan) was the land Joseph Oluguna sold in 1932 to Plaintiff’s father and consequently decreed title in favour of Plaintiff whereas Exhibit A (the document of purchase) described the land as being at Isonyinbo – Majopa Road in Sagamu.
b) Since there is a disagreement between the description of the land in Exhibit a and that in Exhibit B, what land was sold to Plaintiff’s father in 1932 should NOT be assumed to be DEFINED in Exhibit B as erroneously did by trial judge but ought to have been decided by reference to exhibit A only.
c) There is neither averment in the pleading nor evidence on record reconciling the two divergent descriptions to show that they are one and the same and the very land sold in 1932.
- Error in law
The learned trial judge erred in law when he granted to the plaintiff the relief for a statutory right of occupancy over the disputed Banmowu family land when it was clear from the circumstances of the case that the survey plan tendered as Exhibit B to prove the identity, location and the quantum of the land lacked probative value.
Particular of error
a) Exhibit B (the survey plan) was prepared 30 years after the sale of the family land and there is no evidence on record that the vendor in Exhibit a (the document of purchase) showed or pointed to the surveyor the identity, location and quantum of the land which the surveyor sketched in exhibit B 30 years later.
b)There is neither pleading nor evidence that the survey of the land carried out in 1962 was to the notice, knowledge and consent of Banmowu family.
c)The genuineness or validity of Exhibit B is in unresolved serious doubts when the Plaintiff (as PW7) admitted on oath that the vendor mentioned in Exhibit a may not know about the surveys carried out.
d) There is no oral evidence on record as alternative to exhibit B.
e) Exhibit B has no forensic value and ought not to have been relied upon by the trial judge.
- Error in law
The learned trial judge erred in law and occasioned a miscarriage of justice when he granted in favour of the Plaintiff a declaration of title over Banmowu family land when it was clear beyond doubt in Exhibit a that the land plaintiff’s father bought in 1932 was Joseph Oluguna’s own private land and NOT Banmowu family land as pleaded.
Particular of error
(a) The land pleaded to be in dispute is Banmowu family land and not Joseph Oluguna’s private holding.
(b) Exhibit A tendered showed that the land plaintiff’s father bought was not Banmowu family land but the land Joseph Oluguna’s inherited which was vested in his personally.
(c) There was neither evidence before the trial court nor finding that “Oluguna/Banmowu” mentioned in exhibit A was one and the same person with Banmowu who founded the Banmowu family land.
A careful examination of the Appellant’s grounds 1, 2 and 2, will show that, they are saying that the land in dispute was not DEFINED or IDENTIFIED”. In ground 2, it is stated or complained that the learned trial judge erred in law when it was clear from the circumstances of the case that the survey plan tendered as Exhibit B to prove the identity, location and the quantum of the land lacked probative value.” (underlined is mine)
In an effort to show that the trial judge erred, Appellants’ particulars of error are (a) that there is no evidence on record that the vendor in Exhibit A, showed or pointed to the surveyor the identity, location and quantum of the land which the surveyor sketched in exhibit B, 30years later.” (Underlined is mine)
In particulars (b) that “there is neither pleading nor evidence that the survey carried out in 1962 was to the notice, knowledge and consent of Banmowu family.”
In particular (c), that “the genuineness or validity of Exhibit B is in unresolved serious doubts”
In particulars (d) is that “there is no oral evidence on record as alternative to exhibit B”.
In particulars (e) is that “Exhibit B has no forensic value and ought to have been relied upon by the trial judge.” I am of the considered view that the gravamen of the Appellants in their grounds 1, 2 and 3 is that the issue of the land in dispute, was never identified or proved by the Respondent, despite the admission of exhibits A & B which were tendered, uncontroverted nor denied by the Appellants. In my view, the issue of identity of the land was never an issue at the trial court. In fact the identity was known and admitted during the trial of the case as shown on page 119 lines 16-20 of the record, where the 3rd Defendant but now 3rd Appellant, testified as 2nd Defendant witness and stated thus:-
“2nd D.W. sworn on Holy Quaran, states in Yoruba. My name is Chief Isau Kokumo… I know the 1st and 2nd Defendants in this case. I know the Plaintiff. I know the land in dispute. It is situated at Prison Street, Sanyindo, Sagamu.” (Underlined is mine).
As argued by the Respondent in her objection, the trial judge effectively and lawfully considered the parties position on the identity and location of the land in dispute, more so, as the trial judge had stated at page 168 of the record that:-
“The 2nd Defendants’ witness – Isa Kokumo is also the 3rd Defendant. He claimed to know the land in dispute which is situate at Prison Street, Sagamu.”
It is to be noted further that the same DW2 or 3rd Appellant had further testified at page 168 lines 31 to page 169 lines 1 and 2 as follows:-
“He said that by 1932 there were some members of the family and they are still alive. He said that there was some disagreement within the family on the land in dispute. It was eventually between Salami Adekanbi and Joseph Oluguna.” (Underlined is mine)
It is too late for the Appellants to raise the issue of identity of the land in dispute because the Appellants had clearly shown and knew the identity of the land in dispute. In fact the admission of the evidence of DW2, namely 3rd Appellant, is that “I know the land in dispute. It is situated at Prison Street, Soyindo, Sagamu.” The words “Prison” is Prison as clearly spelt out on page 119 and 168 of the record. It is trite law that before the identity of the land in dispute can be raised as an issue in the suit, the party raising must have denied the knowledge of the location of the land in his statement of claim or defence as the case may be. In the instant appeal, I have perused the Appellants statement of defence pleaded at the lower trial, and they did not make an issue of the identity of the land in dispute. A typical situation which is on four with the instant appeal, was considered by the apex court in ADENLE VS. OLUDE (2002) 18 NWLR (pt.799) 413 at 433 – 4 paras E- A as follows:-
“Learned counsel for the Respondent has submitted that the identity of the land was never made on issue in the case and therefore the Appellant cannot base any argument on it. I have no doubt that he is right. The law is that the identity of the land in dispute will be in issue only if the Defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the Plaintiffs plan (if there is a plan), or as described in the statement of claim. Where there is a dispute as to the area and boundaries of the land, in other words if these are put on issue the Plaintiffs who relies on a plan must show that his plan corresponds with the area claimed or in dispute. He may do this by showing that the description of the land in his pleading as given in evidence in support is in complete accord with the plan filed along with the statement of claim relied on him.
This is to ensure that the land is certain both in size or boundary and location. The Appellant obviously has no case based on the identity of the land in dispute. It was not raised anywhere in his statement of defence, nor even in the evidence.”
In the instant appeal, the Respondent had clearly relied on Exhibits A being the receipt of document of sale, and Exhibit B, being survey plan, dated 6th May, 1962. These Exhibits have shown the identity, the size or quantum of the land and its location, namely at Prison Street Sanyindo Sagamu. In the same manner, the Respondent claim was that, she owned the land through her father who purchased the land from the family head of the Appellants, namely Joseph Oluguna and also witnessed by 8 traditional chiefs who investigated the ownership of the land in dispute and they also witnessed the sale and supervised the entire sale deal. The gravamen of the Appellants’ defence at the trial court was just one, namely, that the land in dispute was voidable because the vendor was not the family head of the Banmowu family. I am therefore satisfied that Appellants grounds 1, 2 and 3 reproduced much earlier, are unwittingly raising the issue of identity, size and location of the land in dispute, which was never raised in the trial court. For the Appellants to argue their 1st issue based or distilled from grounds 1 – 3, they should have applied for leave to raise and argue same, which they failed to apply let alone to be granted. The preliminary objection is sustained, Appellants’ grounds 1 -3 and issue 1 are struck out completely.
Be that as it may, it is settled law that even a single ground of appeal, despite the striking out of other grounds, the remaining ground or grounds will be competent to hear the appeal.
In the instant matter I will consider the Appellants’ issues 2 -5, but the whole are subsumed in the Respondent’s issues 1 and 2 and these 2 issues are the relevant matters for determination in this appeal. It is settled law that, this court, or even the open court, can prefer a relevant issue or issues formulated by any of the parties. The appellate court can, on its own, formulate an issue or issue which it considers relevant to and pertinent in its judicial determination of the matter on appeal, see the decision of this court in (unreported) CA/I/EPT/HA/30/2008 delivered on 1st June, 2009; ANOR VS. DR. ANTHONY MIMRA (2008) 2 SCN 55, 71; OKORO VS. THE STATE (1988) 12 SC 191; LENOKE VS. THE REGISTERED TRUST OF CHERUBIM & SHERAPHIM CHURCH OF ZION OF NIGERIA (2003) 3 SCN 39.
The Appellants have argued in their issue No.2 that it is covered by their ground NO.8. They are contending that in the Respondent’s 2, 3 and 4th further amended statement of claim at page 138 of the record; the Respondent averred that Joseph Olugunna who sold the land in dispute to her late father, was the head of Banmowu family of Sagamu. That conversely, at page 41 in paragraph 3 of their statement of defence, the 1st and 2nd Defendants/Appellants contested the issue, and the 3rd and 4th Appellants also at paragraph 4 of their pleadings at page 143 of the records contested the issue by averring that Joseph Oluguna though a member of Banmowu family, was neither the head nor the accredited representative of Banmowu family. Counsel for the Appellants referred to the evidence of PW2 & PW7 who testified that Joseph Oluguna was the head of the family, but that PW2 was just 2 years old when the sale agreement was made in 1932. Counsel has contended that, the trial judge, should not have relied on exhibit A which was tendered by PW2, and that the trial judge should not have relied on the evidence of PW2 and PW7 who, relied only on the contents of Exhibits A & B. Counsel then submitted that it is unimaginable how the trial court could have safely relied on the evidence of PW2 who did not know the family Oluguna belonged to, and whose knowledge is gathered from documents in which none referred to Oluguna as head of Banmowu family. Counsel further submitted that, it is equally untenable for trial court, to hold that, the self contradictory evidence of PW7, namely, that Oluguna was the head of Banmowu family but that she did not know that Oluguna was not the head of Banmowu family, could be used to come to a finding of fact that Oluguna was the head of Banmowu family. Counsel referred to the case of IBIKUNLE VS. IKE (1993) 7 SCNJ (pt.1) 50, 62. Counsel has submitted further that under section 92(1) of the Evidence Act, the evidence of DW’s 2 & 7 lack probative value and ought not to have been relied upon and that by the vires of S. 132 of the evidence Act, all extrinsic evidence outside of Exhibit A ascribing headship of Banmowu family to Joseph Oluguna, ought to be discarded, and relied on OLANLOYE VS. BALOGUN (1990) 7 SCNJ 205, 218 and that this is all the more, because the Respondent’s pleading at paragraphs 2 and 3 at page 138 of the record show that Respondent’s father, “negotiated the purchase of family land” from Joseph Oluguna who held himself out as the head of Banmowu family and yet obtained a document as evidence of the sale of the family land which did not make any reference to the vendor as the head of the family and neither as selling for and on behalf of the family, and relied on the cases of SALAKO VS. DOSUNMU (1999) 7 SCNJ 278, 304; AJUWON VS. AKANMU (1993) 12 SCNJ 32 at 47. In conclusion of their argument, Appellants have submitted that the trial court ought to have believed the uncontroverted evidence of DW5, that Salami Adekanbi was the head of Banmowu family as relied in MOREGBE VS. LAWANI (1980) 3 -4 SC 108, 117; IKUOMOLA VS. ONIWAYA (1990) 7 SCNJ 147, 151 -2. That Salami Adekanbi was the head of the family which is supported by Exhibits a and Q, and that the Respondent had not discharged the burden on her that Joseph Oluguna was the head of Banmowu family in 1932 as it is trite that he who asserts must prove. Appellants counsel has urged this court to answer their issue 2 in the negative and set aside the decision of the trial court and dismiss the Respondent’s claims for title before the lower court.
In response to the Appellants’ arguments, learned counsel for the respondent has opened her position that the land was validly sold to the late Rev. I. O. Oluwale by Joseph Oluguna acting as head of the Banmowu family, and relied on Exhibit A, which was a receipt, issued by the said Joseph Oluguna to the late Reverend. Counsel then pointed out that, the main thrust of the Appellants’ opposition to the Respondent’s claim, over the land in dispute, was that as at 1932, when the land in dispute was sold to the Respondent’s father, the said Joseph Oluguna was not the head of the Banmowu family. Counsel then referred to the trial judges’ evaluation of the parties’ evidence which was weighed on the imaginary scale of justice then proceeded and found that, the sale was valid in customary law and that the vendee and vendor, carried out a symbolic transfer of the land in dispute to the Respondent’s father. Respondent’s counsel then submitted that, from the above finding by the trial judge the validity of the sale was based on the evidence of Respondent’s PW7 and the facts found in the contents of Exhibit A, which sale was clearly made out by Joseph Oluguna acting as head of the family of Banmowu.
Respondent’s counsel further contended that, the trial judge had meticulously evaluated the evidence of the Appellants at page 170 of the record, and found that in proof of their assertion that Joseph Oluguna was not their head of family, they tendered Exhibits N, O, P, Q and R where the trial judge found that “of all the judgments tendered …..none of them said that Joseph Oluguna was not the head of their family”, more so, that the appellants did not dispute that they knew Joseph Oluguna, or that he was a member of their family. After further arguments, the Respondent has urged this court to resolve Respondents issue in favour of the Respondent and dismiss the appeal.
I have carefully studied the parties’ briefs of argument and the proceedings in relation to the Respondent’s witnesses evidence vis a vis the Appellants evidence adduced by their witnesses. I have also scrutinized the trial judge’s findings and his decision.
The Respondent’s claim was that, she was entitled to the land in dispute by virtue of the valid sale, bought by her late father through Joseph Oluguna who acted as head of the Banmowu family, who originally, owned the land. That sale took place in 1932. The Respondent tendered Exhibit A through PW2. In Exhibit A, the vendor, namely Joseph Oluguna who issued the exhibit as a receipt and signed same, said in part as follows:-
“I did hand-over in consultation with my family.”
In my considered view, documents do not lie, unless it is established that the documents are fraud. In the instant appeal, the Appellants did not deny the existence and truth of the document i.e. exhibit A. The thrust of their position in the case is that Joseph Oluguna was not the head of Banmowu family when the sale of part of their land was sold to the Respondent’s father in 1932. To support their defence that Joseph Oluguna was not their head family, they tendered Exhibits “N” “O” “P” “Q” and “R” but they could not establish that Oluguna was not the head in 1932. The four judgments tendered in the court, were cases instituted and determined in 1955 and 1978, meaning 23 years and 55 years respectively after the sale of 1932 was executed. Moreover, the suits in Exhibits “Q” and “R” had nothing to do with the name of Respondent’s father. In other words, the Respondent’s father was not a Defendant or party in the two suits. The Appellants tendered Exhibit “O” and “P” and the trial court could not rely on the documents because they were merely “warnings” to purchasers of Appellants family land in 1958 and 1972 respectively, and the warnings were not directed to Rev. I. O. Oluwale, namely, the Respondent’s late father. As earlier stated, the learned trial judge considered painstakingly, the relevance of Appellants Exhibits N, O, P, Q, and R and found that of all the judgments tendered by the Appellants, none of them said that Joseph Oluguna was not their head of family. By this finding, the inevitable conclusion is that the contents of exhibit A and the evidence of PW2 and PW7 who asserted that Joseph Oluguna was the head of Banmowu family in 1932 was well established as the Appellants failed to dislodge that position.
PW2 testified that the sale was witnessed by eight (8) traditional chiefs of Sagamu who were delegated by the late paramount ruler of Sagamu, late Oba Williamson Adedoyin, who went and met with Banmowu family to testify and supervised the sale in accordance with Yoruba native law and custom. This powerful traditional system is contained at page 56 of the record. When PW2 testified in respect of the sale, it was adjourned to 9/12/1996 for cross-examination, and on 22/01/1997, the cross-examination was done firstly by 1st and 2nd Defendants/Appellants and later by 3rd and 4th Defendants/Appellants but in all, evidence of PW2 remained like the symbolic rock of Gibraltar. From the contents of Exhibit A and the evidence of PW2 and PW7, the issue that Joseph Oluguna was the head of Banmowu family in 1932 when the land in dispute was sold to Respondent’s father was well proved and established based on preponderance of evidence of the parties.
As argued by learned counsel for the Respondent, I entirely agree that where there is sufficient evidence of payment of purchase price, coupled with the delivery of possession of the land to a purchaser, in the presence of witnesses, a solid valid sale is already effected under traditional or customary law. In the instant appeal, exhibit A, a sale receipt over the land in dispute, was traditionally executed between the Banmowu family headed by Chief Joseph Oluguna and Respondent’s father and was witnessed by 8 traditional chiefs, delegated by the traditional paramount ruler of Sagamu who also supervised the deal. It was a foregone conclusion and is valid. In the case of ADESANYA VS. ADEROUNMU (2000) 9 NWLR(pt. 672) 370, a case on all fours with the instant appeal, the sole issue was considered by the apex court and held that, a traditional sale as done to the Respondent’s father, evidenced by a purchase receipt i.e. Exhibit A, is valid in customary law coupled with the delivery of possession. It is to be noted that in the instant appeal, the transfer of possession was conducted by both parties by act of giving and acceptance of traditional kolanut and alcoholic spirits and PW2 testified at page 67 of the record that “the land in dispute was registered with the Sagamu Town Planning Authority by my late father in 1962.” The Appellants did not deny or disagree with the Respondent’s act of registration of the land in dispute. I am therefore of the considered view, that the Respondent was entitled to a grant of a certificate of right of occupancy over the said piece or parcel of land situate at Prison Street, Sagamu and particularly described in survey plan No. LEL/C2000 of 6th August, 1962 as ordered by the trial court on page 174 of the record. I resolve the Respondent’s issue No.1 in their favour.
ISSUE NO.2
Since the Respondent has conceded Appellants’ issue 5 which is identical with Respondents issue NO.2, I resolve same in favour of the Appellants. I hereby set aside the award of N300,000.00 (Three Hundred Thousand Naira) as special damages for the trespass and destruction to the land in dispute by the 1st and 2nd Defendants/Appellants. In its place, I make no award in respect of the Respondents special damages claimed at the trial court.
In the final analysis, the appeal is dismissed in respect of the land in dispute. The land was validly sold by Joseph Oluguna who acted as head of family of Banmowu to the Respondent’s father. The appeal is partly allowed by setting aside the award of special damages only.
Costs of N30,000.00 in favour of the Respondent.
Other Citations: (2009)LCN/3289(CA)
