Yargata Byenchit Nimpar -Justice of the Court of Appeal
Gabriel Omoniyi Kolawole- Justice of the Court of Appeal
Uwabunkeonye Onwosi- Justice of the Court of Appeal
3 .MR WAKEEL ADEDAPO ALASHE
APPELLANTS
RESPONDENTS
LAND LAW, CUSTOMARY LAW, TRADITIONAL HISTORY, EVIDENCE, CUSTOMARY TENANCY, FORFEITURE, APPEAL, PRACTICE AND PROCEDURE, CONTRADICTIONS, COSTS
The case involves a dispute over land ownership situated at Agbowa Village. The Respondents (who were the Plaintiffs at the trial Court) commenced an action against the Appellants (who were the Defendants) at the High Court of Justice, Ogun State, in the Sagamu Judicial Division.
By a Second Amended Writ of Summons and Statement of Claim dated 22nd November 2007, the Respondents sought a declaration that they were entitled to rights of occupancy over the parcel of land at Agbowa Village, a declaration that the Defendants’ family had forfeited the customary tenancy at will over a piece of land known as “Oju Ogun” comprised in the land in dispute, and an order of perpetual injunction restraining the Defendants from trespassing on the land.
In response, the Appellants filed a Second Amended Statement of Defence and Counter-claim dated 28th June 2013, seeking a declaration that the land at Agbowa Aro Village was their bona fide property, having devolved on them in accordance with Yoruba Native Law and Customs. They also sought an injunction restraining the Respondents from harassing them or dealing with the land contrary to their interests, and N500,000 as damages.
The Respondents traced their root of title to Pa Oluida, claiming that Oguntade (whom they alleged was the progenitor of the Appellants) was put in possession of a portion of the land known as “Oju Ogun” as a customary tenant. The Appellants, on the other hand, claimed to be descendants of Otemade and Fadeji Alakenne, who they claimed were the original founders and settlers of the land during a hunting expedition over 300 years ago. They initially denied being descendants of Oguntade, claiming he was merely an in-law to their ancestors with no connection to the disputed land.
However, during cross-examination, the Appellants’ star witness (DW2) admitted that all the Appellants were descendants of Oguntade, which contradicted their earlier pleadings and testimony.
On 25th May 2016, the trial Court delivered judgment in favor of the Respondents. Dissatisfied, the Appellants filed a 2nd Amended Notice of Appeal on 28th June 2022.
“It is trite that all contradictions that relate to or affect the live issue or issues in the matter, would lead to the rejection of the evidence of the witness and adversely render the case of the affected party unbelievable.” – Per UWABUNKEONYE ONWOSI, J.C.A
“Thus, for a party to succeed,
there must be consistency/synergy between the pleadings and the Evidence led in
support. Pleadings and evidence are not games. So, a party is enjoined to be
consistent in his pleadings and presentation of his case.” – Per
UWABUNKEONYE ONWOSI, J.C.A
“…the law is now settled that
where a person relies on traditional history as his root of title to land, the
onus is on him to plead the root of title and the names and history of his
ancestors. He should lead evidence to show same without leaving any yawning
gap. A Court has no jurisdiction to supply any missing link in a genealogical
tree from progenitors to a claimant.” – Per UWABUNKEONYE ONWOSI, J.C.A
“Fundamental to customary
tenancies is the acceptance of the over lordship of the landlord by the
customary tenant. This much was made abundantly evident by TOBI, JSC thus: The
concept of customary tenancy, which creates a relationship of landlord and
tenant, is peculiar to customary law and has no equivalent in English
law.” – Per UWABUNKEONYE ONWOSI, J.C.A
“While payment of tribute is a
recognized condition of customary tenancy, it is not always so and for all
times. There are situations where tribute is not paid to the overlord and yet
customary tenancy exists. For instance, where the tenant unequivocally
recognizes the position of the overlord, customary tenancy exists.” – Per
UWABUNKEONYE ONWOSI, J.C.A
“A party has the dual duty of
denying a material fact first in his pleadings, and second under cross —
examination before his denial would be said to be complete. And once the facts
of a case are clear, any attempt by a Counsel to fill in the gaps and supply
the missing links through his final written address will be a fairy tale.”
– Per UWABUNKEONYE ONWOSI, J.C.A
“Cost generally follow events
and is within the discretion of the Court, a discretion that must be judicially
and judiciously exercised.” – Per UWABUNKEONYE ONWOSI, J.C.A
“The award of cost is entirely
at the discretion of the Court; cost follows the event in litigation. It
follows that a successful party is entitled to cost unless there are special
reasons why he should be deprived of his entitlement.” – Per UWABUNKEONYE
ONWOSI, J.C.A
“Cost of the action is
different from the cost of prosecuting the action which is in the form of
special damages. If the Court says cost of the action, it is the general cost
that follows event and which is generally awarded a party that succeeds at the
trial…” – Per UWABUNKEONYE ONWOSI, J.C.A
“An Appeal Court has competence to
review the costs awarded in the lower Court only where the appellant who was
the loser in the lower Court succeeds on appeal… an Appeal Court can review
the cost where the successful party at the lower Court cross appeals against a
part of the judgment and succeeds.” – Per UWABUNKEONYE ONWOSI, J.C.A
“In law, contradictory evidence
is that which asserts the opposite and is inconsistent with the other. Thus a
contradictory statement is an affirmation of the contrary of what was earlier
stated or spoken. A piece of evidence is contradictory only where it is the
direct opposite of what was earlier asserted.” – Per UWABUNKEONYE ONWOSI,
J.C.A
“The law is trite that a party
must be consistent in the presentation of his case at the trial Court up to the
appellate Court. The pleadings and the oral evidence should tell the same
story.” – Per YARGATA BYENCHIT NIMPAR, J.C.A
“Where any party to the appeal
considers that they are additional record which may be necessary in disposing
of the appeal, he shall be at liberty, fifteen (15) days of service on him of
the Record of Appeal, to compile and transmit to the Court such records to be
known as the Additional Record of Appeal.” – Per UWABUNKEONYE ONWOSI,
J.C.A