Sadiku Osho & Anor V. Michael Ape (1998)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

In the High Court of the former Ondo (now Ekiti) State holden at Ado-Ekiti (Coram: Ogundare, J (as he then was) the plaintiff now respondent, sued the original defendant, Salami Osho, for:

“(a) Declaration of title to a piece or parcel of land situate and being along Iworoko Road, Ado-Ekiti.

(b) N500.00 (five hundred naira) being general damages for trespass.

(c) Injunction restraining the defendant, his servant or agents from committing further actor acts of trespass on the said piece of land.”

Pleadings were ordered and filed by the parties with the plaintiff subsequently amending his statement of claim. The case which was filed on 24th October, 1973 after suffering some adjournments proceeded to hearing on 25th of September, 1978. In a well considered judgment delivered on 24th November, 1978 the learned trial Judge found in favour of the respondent.

Being dissatisfied with the judgment, the original appellant appealed to the Court of Appeal, Benin Division (hereinafter referred to as the court below) premised on two original and later, with leave of the court below, six additional grounds. Meanwhile, the original appellant died and by leave of the court below, Sadiku Osho and Sule Omotuyi were substituted to enable them prosecute the appeal. The court below dismissed the appellants’ appeal on 30th of January, 1989 and this has led to the filing of a further appeal by them to this court dated 28th March, 1989.

For a better appreciation of the facts giving rise to this case a review of the cases of the parties becomes imperative.

For the plaintiff, they may be summarized briefly as follows:-

That the land in dispute shown on plan Exhibit ‘A’ produced by one Mr. Apatira, a licensed surveyor, at the instance of the respondent, has belonged to the respondent’s family from time immemorial. That the respondent’s ancestor migrated from Ife and settled on the land in dispute. Members of the respondent’s family have crops on the land such as palm trees, rafia palms, kolanuts and cocoa. That the respondent’s father during his life time put tenants on the land and after his death, the respondent had in turn also put some tenants on the land. Also, during the life time of the respondent’s father, he gave a part of the land in dispute to the original appellant’s father, Egbedi Fatayi, for the purpose of farming; it was not an absolute grant. The respondent’s father and the original appellant’s father were friends. After the death of the original appellant’s father, the original appellant and other children of the same father continued to farm on the portion which the respondent’s father allotted to their father. About seven years before the inception of the action giving rise to this appeal, the respondent noticed that some people were digging for Foundation on his family land. Enquiries he made revealed that it was the original appellant who sold portions of the land to the people who were in the process of erecting buildings thereon. Upon the respondent enquiring personally from the original appellant the latter told him that he had no share in the land. Consequently, the respondent instituted this action.

The case for the defence on the other hand is that the land in dispute forms part of a larger area belonging to the appellant’s family. The original appellant’s ancestor, one Egbedi Owu, it is stated, migrated with Awamaro, the first Ewi and both settled at Ado-Ekiti. That it was Awamaro who granted the land in dispute to Egbedi Owu and since the grant, it was members of Egbedi Owu family who have been in possession of the land on which they made their farms. Further, that during the life of Egbedi Fatayi, the respondent’s father, Akaraja was struck with leprosy and it was the original appellant’s father who permitted a herbalist known as Okunrinkute to build a hut on the land in dispute where the respondent’s father was kept for curing his leprosy and that neither the respondent nor Akaraja’s son ever farmed on the land in dispute. It was maintained that members of the original appellant’s family have farms on the land in dispute as they had tenants thereon. Parts of the land, it was shown, were sold to purchasers by the family while the original appellant and two other members of the family executed conveyances in favour of the purchasers. The plans prepared on behalf of the respondent and the original appellant were tendered and received by consent as Exhibits ‘A’ & ‘B’ respectively.

On 4th October, 1993, when the appeal came up for hearing before this court, the appeal was stuck out on the ground that neither the leave of the court below nor that of this court was obtained before the grounds of appeal which were of facts or of mixed law and facts, were filed. The present appellants later sought and were granted leave to file fresh grounds of appeal and these were filed on 9th March, 1994. The parties subsequently refiled and exchanged briefs of argument in accordance with the rules of this court, The appellants for their pan submitted six issues for the resolution of this court, namely:

(1) Whether the Court of Appeal could rely on Exhibit ‘A’ which was not pleaded in reaching its decision on the identity of the land in dispute and the area thereof trespassed on.

(2) Whether without Exhibit A’ the Court of Appeal would have found as it did in favour of the plaintiff/respondent on the claim of title to the land.