TAJUDEEN FAGBOHUN & ANOR V. MUNIRU OLAOGUN & 2 ORS

CORAM

JOSEPH E. EKANEM

PARTIES

1. TAJUDEEN FAGBOHUN (Substituted for MUSA AMODU, RAFIU AMODU AND BISIRIYU AMODU, the Deceased Defendants)

2. LAMIDI AMODU(Both Defendants are Representatives of Oduso Family of Akesan)

APPELLANTS

1. MUNIRU OLAOGUN

2. SABITU OLAOGUN

3. TIJANI FADIPE

4. LASISI OMINUAYE (Head and Accredited Representatives of Osunba Family of Akesan)

RESPONDENTS

AREA(S) OF LAW

EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE.

SUMMARY OF FACTS

The Respondents instituted an action at the trial High Court of Lagos State over a parcel of land located at Akesan area of Alimosho Local Government of Lagos State. The case of the Respondents was that their title to the disputed piece of land was by inheritance from their fore-fathers who in the course of time allowed the Appellants’ fore-bear to use part of the land as customary tenants. They further alleged that the Appellants breached the terms of the customary tenancy by rebuilding their family house thereon without obtaining the written permission of the Respondents.

On the other hand, the Appellants’ case was that their ancestor, one Oduso, founded the disputed parcel of land who made customary grant of the piece of land to the Respondents and that the present action of the Respondents amounted to forfeiture of the customary tenancy upon which the Appellants counter-claimed against the forfeiture of the customary tenancy and injunctive relief against the Respondents.

The trial Court entered judgment for the Respondents and ordered the Appellants to forfeit their customary tenancy over part of the disputed parcel of land. The trial Court also ordered possession to be taken over by the Respondents and made an order of perpetual injunction restraining the Appellants from interfering in “any manner whatsoever” with the Respondents’ rights over the said parcel of land. The Appellants’ Counter-claim was dismissed.

Aggrieved and dissatisfied with the decision of the trial Court, the Appellants have lodged the instant appeal.

HELD

Appeal dismissed.

ISSUES

Whether in the circumstance of the two(2) competing traditional histories of first settlement as adduced by the Claimants/Respondents and the conflicting and inconsistent evidence of the Claimants/Respondents witnesses, the trial judge was right to have granted a declaration of title and forfeiture to the Claimants/Respondents. (Ground (b) of the Notice of Appeal dated 22nd December, 2005).

Whether in the face of the contradictions in the evidence of the Claimants/Respondents witnesses as to the actual boundary men of the Claimants/Respondents on the one hand and the consistent evidence of the Defendants’ witnesses, the trial judge was right to have refused the application of the Defendants to visit the locus to determine the actual boundary men of the land and thereby occasioned miscarriage of justice. (Ground (a) of the Notice of Appeal dated 14th March, 2012).

Whether the trial judge was right to refuse the reliefs claimed by the Defendants/Appellants. (Ground (a) of the Notice of Appeal dated 22nd December, 2005).”

RATIONES DECIDENDI

TRADITIONAL HISTORY -WHETHER EVIDENCE OF TRADITIONAL HISTORY OF A FAMILY GIVEN BY A NON FAMILY MEMBER CAN BE USED TO CONTRADICT OTHER WITNESSES

“It would have been otherwise if the PW4 is from the respondents’ family in which case his evidence on the traditional history of the respondents’ family would have had value even if extracted under cross-examination as it related to the pleaded issue of the founder of the land and could have been used for the purpose of arguing that his evidence contradicted the other witnesse(s) on the material issue of the founder of the land pleaded by the respondents.

Having regard to the fact that PW4 is not a member of the respondents’ family, I agree with the contention by the respondents that his evidence (supra) on traditional history of the respondents’ family cannot be used to contradict the other witnesses. Likewise, the PW6 who testified that he is from Kosoko family, not Osunba family.” – Per IKYEGH, J.C.A.