ADEDAPO v. OPAESAN & ANOR (2020)

ADEDAPO v. OPAESAN & ANOR

(2020)LCN/14557(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, August 05, 2020

CA/IB/512/2014

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

MR ADELEKE ADEDAPOAPPELANT(S)

And

MR. OPAWUYI ADIGUN OPAESAN 2. MR. JAMES ADIGUN OPAESAN (For Themselves And On Behalf Of Opaesan Section Of Adewumi Family)RESPONDENT(S)

RATIO

WHETHER OR NOT DECLARATORY RELIEFS ARE GRANTED OR REFUSED A THE DISCRETION OF THE COURT

It is the law that declaratory reliefs are generally granted or refused at the discretion of the Court. That being the case, a party seeking a declaratory relief has the onerous burden of adducing credible and sufficient evidence to back the relief sought. For this type of action to succeed, the Plaintiff or Claimant must rely on the strength of his own case. He cannot be heard to say that the Defendant admitted his claim or led no evidence, as such declaratory relief is not granted on admission by the Defendant or that the Defendant proffered no evidence. The Plaintiff may nevertheless rely on the aspect of the defence that supports his claim to boost his own case.
It therefore means that a declaratory relief cannot be granted in the absence of evidence.
Consequently, unless where the Defendant has filed a counter-claim there is no duty on him to prove anything.
See the following cases:- SUNDAY EGUAMWENSE VS. JAMES .I. AMAGHIZEMWEN (1993) LPELR – 1049 (SC).
– NNAEMEKA OKOYE AND ORS VS. OGUGUA NWANKWO (2014) LPELR – 23172 (SC).
– ADELEKE & ANOR VS. IYANDA & ORS (2001) 13 NWLR PART 729 PAGE 1.
But in this case, there is a Counter Claim, therefore the Appellant must prove his case with credible and sufficient evidence to back the relief sought. PER BADA, J.C.A.

WAYS OF ESTABLISHING PROOF OF TITLE TO LAND

In this appeal, the Respondents’/Claimants’ Claim was built on traditional history. It is settled law that there are five ways of proving title to land. They are as follows:-
(1) Traditional history.
(2) Grant or Production of documents of title duly authenticated and executed.

(3) Acts of ownership over the land in dispute extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person in possession are the true owners.
(4) Acts of long possession and enjoyment of other land so situated or connected with the land in dispute by locality or similarity that the presumption under the Evidence Act applies, and
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the following cases:- BALOGUN VS. AKANJI (1988) 2 S.C PART 1 PAGE 199 AT 233 – 234.
– IDUNDUN VS. OKUMAGBA (SUPRA).
– NWABUOKU & ORS VS. ONWORDI & ORS (2006) 5 S.C. PART III PAGE 103. PER BADA, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST PLEAD CRIBELE EVIDENCE WHERE HE RELIES ON TRADITIONAL HISTORY AS PROOF OF TITLE TO LAND

Where a Plaintiff claims title to land as in this case by Traditional history, he must plead and lead credible evidence to establish the following to the satisfaction of the Court:
(a) Who is the original founder of the land
(b) How he founded the land and
(c) The particulars of the intervening owners through whom the Plaintiff claims.
All the above stated facts must be proved by credible evidence to the satisfaction of the Court because failure to plead and prove any of the facts will lead to rejection of the claimant’s case.
See – OBIOHA & ORS VS. DURU & ORS (SUPRA).
– ALLI VS. ALESHINLOYE (2000) FWLR PART 15 PAGE 2610 AT 2614.
In proving his title to the land in dispute and in establishing all the factors as stated in the case of ALLI VS. ALESHINLOYE (SUPRA). PER BADA, J.C.A.

WHETHER OR NOT WHERE TRADITIONAL EVIDENCE IS NOT CONTRADICTED, IT CAN SUPPORT A CLAIM FOR DECLARATION OF TITLE

The position of the law is that where traditional evidence is not contradicted or in conflict and it found to be cogent, it can support a claim for declaration of title. See the following cases:-
– EKPO VS ITA ll NLR PAGE 68.
– ALADE VS AWO (1975) 4 SC PAGE 215.
– IGE VS AKOJU (1994) 4 SCNJ PAGE 288 AT 296.
It is trite law that in proving title to land by traditional evidence, a Claimant must list all the intervening owners of the land in succession as well as their various acts of ownership over the land. PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of Oyo State High Court of Justice, Ibadan Judicial Division in Suit No: I/1086/2010 BETWEEN (1) MR. OPAWUYI ADIGUN OPAESAN (2) MR JAMES ADIGUN OPAESAN (for themselves and on behalf of Opaesan section of Adewumi’s Family) VS MR. ADELEKE ADEDAPO delivered on the 5th day of May, 2014. The Claimant’s claim before the trial Court succeeded while the counterclaim of the Defendant was dismissed.

Briefly the facts of this case are that by the Claimant’s Writ of Summons, the Claimants claims the following reliefs.
“(a) A declaration that the Plaintiffs as next of kin and successor-in-title to the late Pa. Adigun-Opaesan of Adewumi Family are entitle to Statutory right of Occupancy and possession of the two large expanse of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewumi Village, Egbeda Area, Off New Ife road, Ibadan in Ona-Ara Local Government Area of Oyo State, particularly described and delineated by dispute Survey Plan No. OY/MSC/322/2010/02 dated 01/06/2010 drawn by Surveyor Niran Bioku.

(b) A perpetual order of injunction restraining the Defendant whether by himself, his agents, servants, privies or otherwise so called from trespassing further trespassing, alienating, developing, excavating, digging, leasing, cultivating in whatever form on the two large expanse of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewumi village, Egbeda area, Off New Ife Road, Ibadan in Ona-Ara local government Area of Oyo State, particularly described and delineated by dispute Survey Plan No. OY/MSC/322/2010/02 dated 01/06/2010 drawn by Surveyor Niran Bioku.
(c) A declaration that the Plaintiffs as next of kin and successor-in-title to the late Pa. Adigun-Opaesan of Adewumi family are entitle to Statutory right of Occupancy and possession of the Adigun-Opaesan Section’s family house consist of ten rooms and its appurtenances situate, lying and being at N4/275, Alagbedes Compound, Adeoyo Agbadagbudu, Ibadan.
(d) An order restraining the Defendant whether by himself, his agents, servants, privies or otherwise so called from disturbing, constructing, obstructing, or causing obstruction to the Plaintiffs’

enjoyment to their interest, right and privilege on the Adigun-Opaesan Section’s family house consist of ten rooms and its appurtenances situate, lying and being at N4/275, Alagbedes Compound, Adeoyo Agbadagbudu, Ibadan.”

Upon being served with the Originating Process, the Defendant caused a statement of Defence and Counter Claim to be filed on 6/7/2011 wherein he counter-claimed as follows:-
“(a) A DECLARATION that the Defendant as one of the Descendants of Ojo Adibiobi and from Adenike Ogunsomi section is entitle to apply for a Customary/Statutory right of Occupancy in respect of all that piece or parcel of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewumi Village, formerly Igbo-Omidoyin Village, Egbeda Area, Off New Ife Road, Ibadan, Ona-Ara Local Government Area of Oyo State, particularly described and delineated by dispute Survey Plan No. OY/1674/2011/001/DISP dated 24th June, 2011 drawn and signed by Surveyor B. K. Yusuf.
(b) A PERPETUAL INJUNCTION restraining the Claimants, their agents, servants, privies or any person claiming through them or in trust for the claimants from

trespassing, alienating, developing, excavating, digging, leasing, cultivating in whatever form on the 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewumi Village, formerly Igbo-Omidoyin Village, Egbeda Area, Off New Ife Road, Ibadan, Ona-Ara Local Government area of Oyo State, particularly described and delineated by dispute Survey plan No. OY/1674/2011/001/DISP dated 24th June, 2011 drawn and signed by Surveyor B. K. Yusuf.
(c) A DECLARATION that the house consisting of 12 (twelve) rooms with its appurtenances situate, lying and being at N4/275, Alagbedes Compound, Adeoyo Agbadagbudu Area, Ibadan is jointly owned and family property and no member(s) of any sections of Ojo Adibiobi descendants has an exclusive right over it.
(d) AN ORDER of injunction restraining the Claimants, their agents, servants, privies or any person claiming through them or in trust for the claimants from alienating, constructing, developing or disturbing the peaceful enjoyment of the interest, right and privilege on the defendant’s family in the family house situate, lying and being at N4/275, Alagbedes Compound, Adeoyo Agbadagbudu area, Ibadan.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The case went for trial. At the conclusion of hearing, the learned trial Judge granted the claims of the Claimants and the counterclaim of the Defendant/Appellant was dismissed.

The Appellant who was miffed by the decision of the trial Court appealed to this Court.

The learned Counsel for the Appellant formulated five (5) issues for the determination of this appeal. The issues are reproduced as follows:-
“(1) Whether the uncontroverted credible and plausible evidence of traditional history given by the Appellant (Defendant) evidence of customary tenant and evidence of other witnesses, as well as the Exhibits tendered were sufficient to enable the lower Court grant the Appellant’s reliefs of Declaration of title to the farmland and house in dispute (Distilled from ground 2 of the amended Notice of Appeal).
(2) Whether the Respondent’s (Claimants) who relied on traditional history for their claim to the farmland and house in dispute but failed to plead and lead credible evidence of the succeeding heads of their family after the founder, in a claim of devolution up to the Claimants themselves can be granted title to the

land and house in dispute. (Distilled from grounds 1 and 6 of the Amended Notice of Appeal).
(3) Whether it is not the duty of the trial Judge to consider and pronounce upon all issues raised by Counsel in their final written addresses. (Distilled from grounds 3 and 7 of the Amended Notice of Appeal).
(4) Whether the learned trial Judge rightly assessed and evaluated Exhibit D2 when she held that there were contradictions in the evidence of the Defendant and that the said Exhibit is against the Defendant’s interest. (Distilled from ground 4 of the Amended Notice of Appeal).
(5) Whether the learned trial Judge rightly dismissed the Defendant’s counter claim due to alleged contradictions in the Defendant’s testimony. (Distilled from ground 5 of the Amended Notice of Appeal).”

On the other hand, the learned Counsel for the Respondents formulated two issues for the determination of the appeal.
The said issues are reproduced as follows:-
“(1) Whether considering the totality of the case before the Court below vis-à-vis the evidence led by the parties and their witnesses, the Honourable Court below

was right to have entered Judgment in favour of the Claimants (Respondents herein). (Distilled from grounds 1, 3, 4 and 6)
(2) Whether from the totality of the case of the parties before the Honourable Court below, the Honourable Court below was right to have refused the Defendant’s (Appellant herein) counter claims in its entirety.” (Distilled from Grounds 2, 5, and 7)

At the hearing of this appeal on 3/6/2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of an Oyo State High Court which was delivered on 5/5/2014.

The Original Notice of Appeal was filed on 9/6/2014 while the amended Notice of Appeal was filed on 17/4/2019.

The Appellant’s brief of argument was filed on 24/5/2019. The Appellant’s Reply brief of argument was filed on 31/10/2019 and it was deemed as properly filed on 3/6/2020.

The learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument as well as the Appellant’s Reply brief of argument as his argument in urging that this appeal be allowed.

The learned Counsel for the Respondents’ on the other hand

referred to the Respondents’ brief of argument filed on 7/10/2019.

He adopted and relied on the said Respondents’ brief as his argument in urging that the appeal be dismissed.

I have carefully gone through the issues formulated for the determination of this appeal by Counsel for both parties.

The issues can be condensed into two as done by learned Counsel for the Respondents whose issues encapsulates the issues formulated for determination on behalf of the Appellant. I will therefore rely on the issues formulated for the determination of the appeal on behalf of the Respondents.

ISSUES FOR THE DETERMINATION OF THIS APPEAL.
ISSUE NO 1: “Whether considering the totality of the case before the Court below vis-a-vis the evidence led by the parties and their witnesses, the Honourable Court below was right to have entered Judgment in favour of the Claimants (Respondents herein). (Distilled from grounds 1, 3, 4 and 6).
ISSUE NO 2: “Whether from the totality of the case of the parties before the Honourable Court below, the Honourable Court below was right to have refused the Defendant’s (Appellant herein)

counter claims in its entirety.” (Distilled from grounds 2, 5 and 7)

ISSUE NO 1
The learned Counsel for the Appellant contended that there are (5) five recognized methods by which ownership to land may be established. They are as follows:-
(1) Proof by Traditional history or traditional evidence.
(2) Proof by grant or production of documents of title.
(3) Proof by acts of ownership extending over sufficient period of time numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land.
(4) Proof by acts of long possession and
(5) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.
He relied on the following cases:-
– IDUNDUN & ORS VS OKUMAGBA (1976) 9 & 10 SC PAGE 277.
– ATANDA VS AJANI (1989) 3 NWLR PART 111 PAGE 511.
– ANYANWU VS MBARA (1992) 5 NWLR PART 242 PAGE 381.
– ALLI VS ALESHINLOYE (2000) FWLR PART 15 PAGE 261 AT 264 RATIO 2.

It was submitted on behalf of the Appellant that where a Claimant is

relying on traditional history or evidence in proof of his title to a disputed land, he should plead and give evidence of facts relating to-
(a) How the land was founded.
(b) The person who founded the land and exercised original acts of possession.
(c) The person on whom the title in respect of the land devolved since its first founding, that is the particulars of the intervening owners through whom he claims.
He relied on – OBIOHA & ORS VS DURU & ORS (1994) 10 SCNJ PAGE 48 AT 61.

In proving his title to the land in dispute and in establishing all the factors as stated in the case of ALLI VS ALESHINLOYE (SUPRA). The Appellant called 6 witnesses. Their evidence is in the record of appeal.

The learned Counsel submitted that the trial Court was wrong by failing to consider and rely upon the evidence of the Appellant particularly DW3 a member of the Appellant’s family. He relied on paragraphs 3-33 of the Statement of Defence and Counter Claim at pages 33-38.

It was also submitted on behalf of the Appellant that the Respondent failed to follow the laid down principles of law as laid down in

ALLI VS ALESHINLOYE (SUPRA). The learned Counsel for the Appellant submitted further that the Respondents never pleaded the names of intervening owners in succession without leaving any gap as well as their various acts of ownership which they exercised during their respective tenures and of how the land eventually devolved on the Respondents.

He urged this Court to hold that the Respondents failed to establish their title to the land in dispute.

It was also contended that the learned trial Judge closed his eyes to salient issues for determination raised by the Appellant and that the result was miscarriage of Justice against the Appellant.

In his response, the learned Counsel for the Respondents submitted that in this type of situation where title to land is in dispute, the Claimant is bound to plead and prove with cogent and convincing evidence all the material facts on the basis of which he claims.
He relied on the following cases:-
– ALHAJI OSENI OLANIYAN & 4 ORS VS CHIEF MRS E. T. FATOKI (2014) ALL FWLR PART 717 PAGE 703 AT 715-716 PARAGRAPHS H-A.
– IDUNDUN VS OKUMAGBA (1976) 10 SC PAGE 227.
– NWAOKAROBIA VS UZOHO (2007)

FWLR PART 376 PAGE 729 AT 743 PARAGRAPHS C-H.

The learned Counsel for the Respondents submitted that in a claim for declaration of title in respect of inherited land, the Claimant must plead and give evidence of the person who founded the land and all the persons who inherited the land through the ages to the present Claimant. He relied on the case of – MEKA VS ANIAFULU (2006) ALL FWLR PART 309 PAGE 1465 AT 1472 PARAGRAPHS A-B.
He also relied on the Judgment in Suit no. – 130/95 delivered by Oyo State Grade “C” Customary Court Ile-Tuntun, sitting at Mapo Ibadan.

The said document called Judgment was tendered in evidence through DW3 at page 96 of the Record of Appeal and admitted as Exhibit D2.

It was further submitted on behalf of the Respondents that the Respondents having established that the title to the land in dispute had been previously declared in favour of their ancestor and predecessor in title vide Judgment in Exhibit D2. It became unnecessary for the Respondents to prove ownership of the said land all over again.

The following cases were relied upon:- MOSALEWA THOMAS VS. PRESTON HOLDER (1946) 2

WACA PAGE 78 AT 80.
– BUNYAN VS. AKINGBOYE (2001) FWLR PART 41 PAGE 1977 AT 1990 PARAGRAPHS B – D.
– WACHUKWU & ANOR VS. ONWUNWANNE & ANOR (2011) 14 NWLR PART 1266.

It was submitted on behalf of the Respondents that once a party pleads first settlement as a plea of traditional history and same is successfully placed before the Court and is accepted, the title of the land can be declared on such evidence.

The learned Counsel for the Respondents finally urged this Court to hold that the Respondents having successfully placed a cogent credible and compelling traditional history of first settlement on the land in dispute before the learned trial Judge, the lower Court was right to have granted the Respondents claims and dismissed the Appellant’s counter claims.
He urged that this appeal be dismissed.

In the Appellant’s Reply Brief of Argument, the learned Counsel submitted that Exhibit D2 is not a Judgment, it was the record of proceeding of the Grade “C” Customary Court, Mapo Ibadan.

He submitted further that in Exhibit “D2” which the Respondents are relying upon, none of

the parties in the case was awarded title at the Grade “C” Customary Court Mapo, Ibadan.

RESOLUTION
A careful reading of the Claimants/Respondents claim at the trial Court showed that the Principal relief sought is for Declaration of title i.e. Statutory Right of Occupancy and Possession of the two large expanse of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewunmi Village, Egbeda Area, off New Ife Road, Ibadan in Ona – Ara Local Government Area of Oyo State particularly described and delineated by dispute survey plan No – OY/MSC/322/2010/02 dated 01/06/2010 drawn by Surveyor Niran Bioku.
The entire claims were set out earlier in this Judgment.

It is the law that declaratory reliefs are generally granted or refused at the discretion of the Court. That being the case, a party seeking a declaratory relief has the onerous burden of adducing credible and sufficient evidence to back the relief sought. For this type of action to succeed, the Plaintiff or Claimant must rely on the strength of his own case. He cannot be heard to say that the Defendant admitted his claim or led no

evidence, as such declaratory relief is not granted on admission by the Defendant or that the Defendant proffered no evidence. The Plaintiff may nevertheless rely on the aspect of the defence that supports his claim to boost his own case.
It therefore means that a declaratory relief cannot be granted in the absence of evidence.
Consequently, unless where the Defendant has filed a counter-claim there is no duty on him to prove anything.
See the following cases:- SUNDAY EGUAMWENSE VS. JAMES .I. AMAGHIZEMWEN (1993) LPELR – 1049 (SC).
– NNAEMEKA OKOYE AND ORS VS. OGUGUA NWANKWO (2014) LPELR – 23172 (SC).
– ADELEKE & ANOR VS. IYANDA & ORS (2001) 13 NWLR PART 729 PAGE 1.
But in this case, there is a Counter Claim, therefore the Appellant must prove his case with credible and sufficient evidence to back the relief sought.

Plaintiff claims.
All the above stated facts must be proved by credible evidence to the satisfaction of the Court because failure to plead and prove any of the facts will lead to rejection of the claimant’s case.
See – OBIOHA & ORS VS. DURU & ORS (SUPRA).
– ALLI VS. ALESHINLOYE (2000) FWLR PART 15 PAGE 2610 AT 2614.
In proving his title to the land in dispute and in establishing all the factors as stated in the case of ALLI VS. ALESHINLOYE (SUPRA). The Appellant called 6 witnesses.

The DW1 Yusuff Bashir Kadewolu a registered surveyor was the maker of Exhibit “D1” i.e. the Dispute Survey Plan No:- OY/1674/2011/001/DISP dated 24/6/2011.

The DW2 – Alhaji Suara Adesokan testified that Ojo Adibiobi is the ancestor of both the Appellant i.e. Defendant and Respondents i.e. Claimants. He stated that he is from Ajika compound at Adeoyo Area, Ibadan and his family compound is opposite the Appellant and Respondents’ family compound. He stated that his family and the family of both the Appellant and Respondents used to participate in an annual Orisa Oko festival which was usually at the

Alagbede’s compound. His Statement on Oath is on page 57 of the Record of Appeal.

The DW3 is Mr. Ademola Michael Olasupo. He is a member of Adenike Ogunsomi section of Ojo Adibiobi family of which the Appellant is the family head. He testified that he had been farming on part of the farmland in dispute for 20 years and he has been enjoying exclusive and undisturbed possession of the said farmland. He listed all the members of the Adenike Ogunsomi family who have controlled and managed the Appellant’s section of the farmland in dispute as follows:-
(i) Adenike Ogunsomi
(ii) Adedapo
(iii) Adewole Adedapo
(iv) Adeleke Adedapo – the Appellant in this appeal.

DW4 – Pius Ajidagba testified that he is a customary tenant to the Appellant’s family to who he pays in customary rent in form of farm produce. His statement on Oath is on page 42 of the Record of Appeal.

DW5- Suara Akanmu Atanda; He is from the family of Ojo Adibiobi.
He described the Claimant’s portion as well as the Appellant’s portion of the farmland in dispute and stated that each family section have been farming on their

respective farmlands for a long time.

The DW6 Adeleke Adedapo the Appellant himself testified before the trial Court and narrated the traditional history of the farmland and house in dispute in his statement on Oath on page 45 of the record. He testified further that the farmland in dispute has been partitioned under native law and custom and each section of the Ojo Adibiobi family has its own section of the farmland.

He also testified as to the various acts of ownership and control exercised by his family, Adenike Ogunsomi such as construction of classrooms on the land for the Primary School established in the Community. And also granting part of the farmland to the Western Region Government in 1955 by the Appellant’s father, and that his family members such as DW3 – Mr Ademola Michael Olasupo, also farmed on the land and that the land was let out to tenants. In support of the evidence, DW4 Pius Ajidagba a Customary tenant, to the Appellant’s family was called to give evidence and substantiated the Defendant/Appellant’s defence and Counter Claim.

He testified further that the Respondents already sold off their own

portion of the farmland to various people who have since taken possession of same and that the Respondents were disturbing his family’s peaceful occupation of their own section of the farmland having sold off theirs. He also stated in paragraph 51 of his Statement on Oath at page 49 of the Record of Appeal that his own family has not sold off or otherwise disposed their own section of the farmland in dispute.

As for the house in dispute at N4/275 Alagbede’s Compound Adeoyo Agbadagbudu, Ibadan, the Appellant testified in paragraph 41 of the Statement on Oath that his grandfather Adenike Ogunsomi owned the first building ever constructed at Alagbede’s compound and in line with this Exhibit “D3” a plaque marked “D 19” was tendered in evidence. He further described the said house in paragraph 42 and stated in paragraph 43 and 44 that the house in dispute at N4/275 Alagbede’s Compound, Adeoyo Agbadagbudu Ibadan is jointly owned by the entire descendants of Ojo Adibiobi and no particular section of the entire Ojo Adibiobi family has exclusive ownership over the house and also that the house was not

partitioned. DW6 also traced the origin of the Appellant’s ownership of the land in dispute from the 1st settler Ojo Adibiobi through all the successors and intervening owners up to the present owner of the land i.e the Appellant without leaving any gaps as follows:-
(1) Ojo Adibiobi
(2) Adewumi
(3) Adenike Ogunsomi
(4) Adeogun
(5) Opaesan (from Adewumi section)
(6) Oguntade (from Adewumi Section)
(7) Adesanmi (from Adewimi Section)
(8) Akinpelu (from Adewumi Section)
(9) Adedapo (from Adenike Ogunsomi section headed between 1968-1972)
(10) Adigun (from Opaesan-Adewumi Section)
(11) Ayoade (from Adeogun)
(12) Opadiya (from Opaesan-Adewumi Section)
(13) John Akanmu (from Adesanmi-Adewumi Section)
(14) Emmanuel Opaoyinbo (from Opaesan-Adewumi Section)
(15) Joseph Oshunmuyiwa (from Opaesan-Adewumi Section)
(16) Adewole Adedapo (from Adenike Ogunsomi Section headed between 2001-2007)
(17) Oladokun Tadegbe (from Tadegbe-Adewumi Section) (The incumbent head).

Both DW3 (at paragraph 7, page 43) and DW6 at paragraph 50 page 48 of the record) also listed all the members of

the Adenike – Ogunsomi family who have controlled and managed the Appellant’s section of the farmland in dispute as follows:-
(1) Adenike Ogunsomi
(2) Adedapo
(3) Adewole Adedapo
(4) Adeleke Adedapo – The Appellant in this Appeal.

The Respondents did not cross-examine the Appellant’s witnesses in respect of the intervening owners and the various acts of ownership exercised by them at various times during their life.

details of the traditional history was pleaded and DW3 and DW6 backed it up with reliable evidence. See the case of:-
– DAGACI OF DERE VS DAGACI OF EBWA (2006) 7 NWLR PART 979 PAGE 382 AT 452-453 PARAGRAPHS G-C.

The Respondents built their case upon a Court proceedings which they referred to as Judgment in Suit Number 130/95 of Oyo State Grade “C” Customary Court Ile Tuntun sitting at Mapo Ibadan.
What the Respondents referred to as Judgment which is merely a Court proceeding was tendered in evidence as Exhibit “D2”.
The learned Counsel for the Respondents submitted that having established that the title to the land in dispute had been previously declared in favour of the their ancestor and predecessor-in-title vide Exhibit D2, it became unnecessary for the Respondents to prove ownership of the said land all over again.
In BUNYAN VS AKINGBOYE (2001) FWLR PART 41 PAGE 1977 AT 1990 PARAGRAPHS B-D it was held thus:-
“Where the title to land has been established in a previous case, it will not be necessary for the successors in tile to the said land to prove ownership of the land all over again……”

I am of the view that the Respondents goofed by relying on Exhibit “D2”.
A careful reading of the Record of Appeal particularly, pages 57 to 64 which contain the said Exhibit “D2” relied heavily upon by the Respondents would reveal that what is contained there is merely record of proceeding of Oyo State Grade “C” Customary Court, Ile Tuntun sitting at Mapo, Ibadan.
There was no decision reached by the Customary Court in the said Exhibit “D2”. The Judgment of the Grade “C” Customary Court was not tendered in evidence.
It is therefore wrong for the trial Court to base its Judgment on Exhibit “D2” in which title or possession was not awarded.
See – UDO VS OBOT (1989) 1 NWLR PART 95 PAGE 59. Also in ADEBAYO VS BABALOLA (1995)7 NWLR PART 407 PAGE 303 AT PAGE 405, it was held among others that:-
“… To sustain a plea of res judicata to which issue estoppel is a specie, the party pleading it must satisfy the following conditions
(a) That there was an adjudication of the issues joined by the parties.
(b) That the

parties or their privies as the case may be are the same in the present case as in the previous case.
(c) That the issue and subject matter are the same in the previous case as in the present case.
(d) That the adjudication in the previous case was given by a Court of competent jurisdiction.
(e) That the previous decision must have finally decided the issues between the parties that is, the rights of the parties were finally determined.”
I am therefore of the view that a plea of res judicata cannot be sustained where the land in dispute in two separate cases was not the same.
See – AYINDE VS LABISI (1970) ALL NLR PAGE 172.
In this case, while comparing the suit in Exhibit “D2” with this appeal under consideration, it is clear that the parties and the subject matter in the two cases are completely different.
In Exhibit “D2” (see page 57 of the record of appeal), the parties were Mustapha Ajao Epo as Plaintiff while Iyiola Osunmuyiwa, Osuolale Akinpelu and Adewole Adedapo were the Defendants. But in this present case, Opawuyi Adigun Opaesan and James Adigun Opaesan were the Claimants

(Respondents herein) while Adeleke Adedapo was the Defendant i.e (Appellant herein).
In this case, the trial Court failed to examined Exhibit “D2” relied upon heavily by the Respondents.
This Court as an Appellate Court is in a proper position to examine Exhibit “D2” and it was found that it is not a Judgment but merely a record of proceedings of the Oyo State Grade “C” Customary Court, Ile Tuntun sitting at Mapo, Ibadan.
The learned Counsel for the Respondents submitted that having established that the title to the land in dispute had been previously declared in favour of their ancestor and predecessor-in-title vide Judgment in Exhibit D2. It became unnecessary for the Respondents to prove ownership of the said land all over again.
But now that the said Exhibit “D2” has been found not to be a Judgment but mere proceeding of Grade C Customary Court in which no issue pertaining to title or possession was decided. It means that the Respondents have not proved ownership of the land in dispute. In other words, they have not led credible evidence on their root of title on the land in dispute.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the circumstance, I am therefore of the view that the trial Court was wrong to have relied on Exhibit “D2” and it failed to properly examine the evidence and exhibits placed before it by the parties.

This issue No.1 is therefore resolved in favour of the Appellant and against the Respondents.

ISSUE NO 2
The learned Counsel for the Appellant contended that the Respondents relied solely on traditional history in proving their claim, but in trying to do so, they failed to follow the laid down principles of law in proving same as laid down in the case of ALLI VS. ALESHINLOYE (SUPRA). He went further that the Respondents failed to plead and lead credible evidence on the succeeding heads of their family after the founder, in a chain of devolution up to the Respondents themselves.

It was submitted on behalf of the Appellant that the Respondents never pleaded the names of the intervening owners in succession without leaving any gaps as well as their various acts of ownership which they exercised during their respective tenures and how the land eventually devolved on the Respondents.

On the other hand, the learned Counsel for the

Respondents submitted that the trial Court was right to have entered Judgment for the Respondents on the land in dispute and dismissed the counter-claim of the Appellant.

He referred to the finding of the trial Court which he stated among others revealed the following:-
(1) That the Respondents i.e. Claimants traditional history of how their predecessors – in – title became the owner of the land in dispute had been established by the Judgment in Exhibit “D2” and same was found to be cogent, compelling and in line with their pleading as same was not faulted during cross- examination as can be seen on pages 86 – 93 of the record.

RESOLUTION
It is appropriate to point it out at this juncture that the Exhibit “D2” which the learned trial Judge relied upon to say that the –
“The Respondents i.e. claimants traditional history of how their predecessors-in-title became the owner of the land in dispute had earlier been established by the Judgment in Exhibit “D2”…”
had been struck down because this Court found out that Exhibit “D2” was not a Judgment, it was merely a

record of proceedings of the Oyo State Grade C Customary Court Ile-Tuntun sitting at Mapo Ibadan. And nowhere in the said proceedings was any decision reached by the Customary Court, as such there was no Judgment, findings or decided issues placed before the trial Court (See pages 57 to 64 of the record of appeal).

The appropriate inference drawn from the Judgment of the learned trial Judge is that:- The traditional history of how the predecessors-in- title of the Respondents became the owner of the land in dispute was not established since Exhibit “D2” is not a Judgment and it did not decide any issue relating to title or possession.

The Respondents has therefore failed to follow laid down principles of law in proving traditional history as laid down in ALLI VS. ALESHINLOYE (SUPRA). Furthermore the Respondents have failed to lead evidence of the succeeding heads of their family after the founder, in a chain of devolution up to the Respondents themselves.

The Appellant testified that he belongs to the Adenike Ogunsomi family and that the land in dispute forms part of the Adenike Ogunsomi family land which has been owned and farmed

upon by the Appellant’s forefathers. The Appellant’s forefathers also exercised various acts of ownership on their portion of the land in dispute.

There was also uncontradicted evidence before the trial Court that Appellant’s section of Ojo Adibiobi family that is Adenike Ogunsomi family owns the family house of (12) twelve rooms located at N4/275 Alagbede’s compound, Adeoyo Agbadagbudu Ibadan as of right under native law and custom and not that his family was granted the land by the Respondent’s Progenitor. The Appellant also asserted that his grandfather Adenike Ogunsomi owned the first building ever constructed at the Alagbede’s compound and that the building was marked D19 by the then Ibadan native Authority during the colonial period.

Consequent upon the foregoing and from the totality of the case of the parties before the trial Court, I am of the view that the trial Judge was wrong to have refused the Defendant/Appellants counter-claim.

This issue No. 2 is therefore resolved in favour of the Appellant and against the Respondents.

In the result, with the resolution of issues 1 and 2 in favour of the

Appellant and against the Respondents, I am of the view that this appeal has merit and it is allowed.

Therefore the Judgment of the trial Court delivered in I/1086/2010 – BETWEEN (1) MR. OPAWUYI ADIGUN (2) MR. JAMES ADIGUN OPAESAN (for themselves and on behalf of Opaesan section of Adewunmi’s family) VS. ADELEKE ADEDAPO delivered on 5/5/2014 is hereby set aside. And in its place the suit of the Respondents which led to this appeal is hereby dismissed.

The counter-claim succeeds and it is granted in the following terms:-
(1) A declaration is hereby granted that the Defendant as one of the Decendants of Ojo Adibiobi and from Adenike Ogunsomi section is entitle to apply for a Customary/Statutory right of occupancy in respect of all that piece or parcel of land measuring 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewunmi Village formerly Igbo Omidoyin Village, Egbeda Area, Off
New Ife Road, Ibadan, Ona Ara Local Government Area, Oyo State, particularly described and delineated by dispute Survey Plan No – OY /1674/2011/001/DISP dated 24th June, 2011 drawn and signed by Surveyor B.K. Yusuf
(2) Perpetual

injunction is hereby granted restraining the Claimants, their agents, servants, privies or any other person claiming through them or in trust for the Claimants from trespassing, alienating, developing, excavating, digging, leasing, cultivating in whatever form on the 1.695 Acres and 5.269 Acres of land situate, lying and being at Adewunmi Village, formerly Igbo – Omidoyin Village Egbeda Area, Off New Ife road, Ibadan, Ona-Ara Local Government Area of Oyo State, particularly described and delineated by dispute Survey Plan No:- OY/1674/2011/001/DISP dated 24th June, 2011 drawn and signed by Surveyor B. K. Yusuf.
(3) A declaration is hereby made that the house consisting of (12) twelve rooms with it appurtenances situate, lying and being at N4/275 Alagbede’s Compound, Adeoyo Agbadagbudu Area, Ibadan is jointly owned and family property and no member(s) of any section of Ojo Adibiobi descendants has an exclusive right over it.
(4) An Order of injunction is hereby made restraining the Claimants, their agents, Servants, Privies or any person claiming through them or in trust for the Claimants from alienating, constructing, developing or

disturbing the peaceful enjoyment of the interest, right and privilege on the defendant’s family in the family house situate, lying and being at N4/275 Alagbede’s Compound, Adeoyo Agbadagbudu Area, Ibadan.

There shall be costs of (N200, 000.00) Two Hundred Thousand Naira in favour of the Appellant and against the Respondents jointly and severally.
Appeal Allowed.
Counter claim granted.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the draft of the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.

My learned brother has comprehensively considered and resolved all the issues that came up for determination in this appeal. I agree with the reasons and conclusions therein.

I therefore agree that the appeal has merit and is hereby allowed. Judgment of the Court below, delivered on the 5th day of May, 2014 is hereby set aside. The Counter-Claim succeeds and is accordingly granted.
I abide by the consequential order made in the lead judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have been privileged to read the draft of the lead judgment just delivered by my learned brother

Hon. Justice Jimi Olukayode Bada JCA.

His Lordship has dealt extensively with all issues for determination in the appeal. I agree with the reasoning and conclusion reached therein and I adopt them as mine.

Appearances:

S.O. OGUNJIMI with him, R.A. Adewale For Appellant(s)

AKINSUMBO AKANDE For Respondent(s)