KAZEEM RAJI OREPEKAN & ORS V CHIEF MORUFF TESLIM & ANOR

Legalpedia Citation: (2025-03) Legalpedia 01376 (CA)

In the Court of Appeal

Holden at Ibadan

Tue Mar 11, 2025

Suit Number: CA/IB/300/2016

CORAM

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

PARTIES

1. KAZEEM RAJI OREPEKAN
2. MR. OLALEKAN KASALI

3 .MR WAKEEL ADEDAPO ALASHE

4. OTUNBA TAIRU OGUNLEYE (For Themselves and on Behalf of Oguntade Family)

APPELLANTS

1. CHIEF MORUFF TESLIM
2. CHIEF TAIWO OLAYINKA GBADAMOSI (For Themselves and on Behalf of the Oluida Family of Agbowa Village)

RESPONDENTS

AREA(S) OF LAW

LAND LAW, CUSTOMARY LAW, TRADITIONAL HISTORY, EVIDENCE, CUSTOMARY TENANCY, FORFEITURE, APPEAL, PRACTICE AND PROCEDURE, CONTRADICTIONS, COSTS

SUMMARY OF FACTS

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.

HELD

1. The appeal was dismissed in its entirety.
2. The judgment of the High Court of Justice, Ogun State, delivered by Justice A. Rotimi-Balogun on 25th May 2016 in Suit No: HCS/49/2015 was affirmed.
3. The Court found that there were material contradictions in the Appellants’ traditional history, particularly regarding their relationship with Oguntade, whom they initially denied as their progenitor but later admitted under cross-examination.
4. The Court held that the Respondents had successfully established their claim of customary tenancy against the Appellants.
5. The Court upheld the award of N50,000 as costs against the Appellants, confirming that costs follow events and need not be specifically claimed as a substantive relief.

ISSUES

1. Whether there exist material contradictions in the Appellants’ traditional history which renders their evidence inconclusive and a resort to recent events irrelevant and/or unnecessary. (Grounds 1, 5 & 6 of the Amended Notice of Appeal).?
2. Whether the Respondent had established a claim of Customary Tenancy or Customary Tenancy “at Will” against the Appellants. (Grounds 2 & 3 of the Amended Notice of Appeal).?
3. Whether the Learned Trial Judge was correct to have awarded the sum of N50,000.00 (Fifty Thousand Naira) as cost against the Appellants. (Ground 4 of the Amended Notice of Appeal).?
4. Have the Appellants not established their entitlement to the right of occupancy over the subject matter in dispute against the Respondents. (Ground 7 of the Amended Notice of Appeal).?

RATIONES DECIDENDI

CONTRADICTIONS IN TRADITIONAL HISTORY – EFFECT OF MATERIAL INCONSISTENCIES IN EVIDENCE:

“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

PLEADINGS AND EVIDENCE – REQUIREMENT FOR CONSISTENCY BETWEEN PLEADINGS AND EVIDENCE:

“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

PROOF OF TRADITIONAL HISTORY – REQUIREMENTS FOR ESTABLISHING ROOT OF TITLE:

“…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

ESSENTIAL ELEMENTS OF CUSTOMARY TENANCY – ACKNOWLEDGMENT OF OVERLORDSHIP:

“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

PAYMENT OF TRIBUTE IN CUSTOMARY TENANCY – WHETHER ESSENTIAL:

“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

DENIAL OF MATERIAL FACTS – DUAL DUTY OF DENIAL:

“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

AWARD OF COSTS – DISCRETION OF THE COURT:

“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

ENTITLEMENT TO COSTS – SUCCESSFUL PARTY:

“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

DIFFERENCE BETWEEN COSTS OF ACTION AND SPECIAL DAMAGES:

“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

REVIEW OF COSTS BY APPELLATE COURT – WHEN PERMISSIBLE:

“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

DEFINITION OF CONTRADICTIONS IN EVIDENCE:

“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

CONSISTENCY IN PRESENTATION OF CASE – REQUIREMENT THROUGHOUT TRIAL AND APPEAL:

“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

DUTY TO COMPILE ADDITIONAL RECORD OF APPEAL – RESPONSIBILITY OF PARTY:

“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

CASES CITED

STATUTES REFERRED TO

• Court of Appeal Rules, 2021
• Constitution of the Federal Republic of Nigeria, 1999 (as amended)

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