RAFIU SANGODARE v. TAYO OLADOKUN & ANOR
(2014)LCN/7094(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of April, 2014
CA/I/137/2010
RATIO
WHETHER AN APPEAL COURT MAY ALTER THE RECORD OF APPEAL OF A LOWER COURT
It is a general principle of law that issues which the lower court from which the appeal emanated does not have the opportunity to pronounce upon are to be disregarded by the appellate court. The appellate court is bound by record of appeal before him. See: Tambari vs. Bongo (1999) 6 NWLR (Pt.605) 145 @ 151; Bello vs. Jallo (1999) 4 NWLR (Pt.598) 189 @ 195.
However, every general principle of law necessarily is subject to some exceptions. For instance, issue of jurisdiction can be raised for the first time on appeal even at the Supreme Court stage. Therefore issues bordering on jurisdiction constitute an exception to this general rule. To this extent, I cannot fault the holding of the learned Judge of the High Court at page 118 of the record, thus:
“I am sure that chief Balogun will be the first to accept that the above principle of law ably stated by His Lordship Commassie, J.C.A. must definitely have some exceptions. The first exception that easily comes to mind is when the issue of jurisdiction is raised for the first time on appeal. The Appeal courts have not formed the habit of referring such cases to the lower court for their pronouncements on such issues. New issues not canvassed at the lower court are sometimes allowed to be canvassed on appeal but with leave.”
Further, by virtue of Section 6(6)(a) of the Constitution of Federal Republic of Nigeria 1999 (as amended), courts have inherent jurisdiction to grant leave to a party to even raise and canvass new issues at appeal stage. It must be borne in mind that this inherent power of courts are discretionary, possible of activation by a party upon advancing genuine and cogent reasons while same should be exercised in his favour. It is clear from the records of appeal at page 69 that the respondent filed an application seeking for leave of the court to incorporate the said Exhibit B and C to the record of appeal. The application was granted by the learned Judge in the exercise of its discretionary power pursuant to Section 6 (6) (a) of the Constitution. The appellant herein did not exercise his right of appeal against the ruling therein. In any case, “Exhibits B and C” have no bearing on the substantive matter before the lower court. They only borders or touches on procedural requirements. Since the learned Judge of the lower court had exercised its discretion on the issue by granting leave, further issues ought not to be made on same as it does not in any way affect or aid the case of any of the parties. The era of technical justice is indeed over for good. See Onojobi vs. Olankpekun (1985) 11 S.C. (Pt.11) 155 @ 163; Onokoya v. F.R.N. (2002) 11 NWLR (Pt.779) 595 @ 657; Oruobu vs. Anekwe (1997) 5 NWLR (pt.506) 618 @ 629. PER SONTONYE DENTON WEST, J.C.A.
WHETHER A PERSON MUST BE IN POSSESSION TO BE ABLE TO INSTITUTE AN ACTION FOR TRESPASS
Trespass is a civil wrong against possession. To be able to institute an action for trespass, the person must be in possession. An action in trespass presupposes that the plaintiff is either the owner of the disputed land or is in possession. See: Amakor vs. Obiefuna (1974) 3 SC 67 @ 78; Ogungbemi vs. Asamu (1986) 3 NWLR. As to occasions when claim for trespass will fail, the Supreme Court, per Ogwuegbu, JSC in Ojiako & anor vs. Ewuru & Ors. (1995) 9 NWLR (pt.420) 460 @ 477, opined thus:
“The claim for damages for trespass should also fail because the plaintiffs failed to establish that they were in actual possession of the land verged pink in Exhibit A.” PER SONTONYE DENTON WEST, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
RAFIU SANGODARE
(For and on behalf of Mosala family, Ikoyi) Appellant(s)
AND
1. TAYO OLADOKUN
2. CHIEF JIMOH OGUNRANTI Respondent(s)
SONTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State sitting at Ikire, delivered on 26th of January 2007.
The appellant as plaintiff sued the respondents as defendants at the Customary Court sitting at Ikoyi in the Isokan Local Government of Osun State for a declaration of Customary Right of Occupancy over a piece of farmland situate at Gbagbon Village, Ikoyi. He also claimed injunction, possession, special and general damages and other reliefs the court may deem fit to make in the circumstance. The customary court gave judgment for the plaintiff and the defendants being dissatisfied, appealed to the Chief Magistrate Court, Ikire which in a considered judgment delivered on 13th March, 2003, allowed the appeal against the Customary Court judgment and went further to grant title to the disputed land to the defendants/appellants therein. The plaintiff/respondent being dissatisfied with the judgment of the Chief Magistrate Court, appealed to the High Court of Osun State sitting at Ikire, who in a well considered judgment delivered on 26th January, 2007, dismissed the appeal, set aside the award of title to the disputed land to the respondents by the Chief Magistrate Court and instead substituted dismissal of the appellant case at the Magistrate Court. Being dissatisfied, the appellant herein filed a notice of appeal on 27th March, 2007, containing 11 grounds of appeal. The appellant filed brief of argument dated and filed on 12/7/2010 and served on the respondent who did not enter appearance or file any process in this appeal. By order of this court, this appeal was heard on appellants brief alone on 16/01/2014.
In the said brief of argument, the appellant distilled five (5) issues for determination of this appeal thus:
1. Whether the High Court sitting in its appellate jurisdiction was correct to say that there is reasonable exception to the settled principle of law that any appellate court cannot pronounce or decide on the issues that the trial court has no opportunity to pronounce upon.
2. Whether the High Court sitting in its appellate jurisdiction has the power to amend the record of proceedings in the Magistrate Court before it to include Exhibit B and C or any documents whatsoever which were not part of the record of appeal either from trial court or the Magistrate Court sitting on appeal from Customary Court.
3. Whether the High Court sitting in its appellate jurisdiction properly applied guidelines to be in reviewing the decision from Customary Court.
4. Whether the High Court sitting as an appellate court has jurisdiction to substitute dismissal of the appellant’s claim in the Customary Court.
5. Whether there was enough evidence in the record to enable the appellant to maintain an action in trespass.
Since the respondent did not file any process in this matter despite having being served of all the appellants’ processes, I am left to determine this appeal solely on the issues as formulated by the appellant. I shall resolve issues 1, 2 and 4 together, while issues 3 and 5 shall also be resolved together given their similarities.
ISSUE 1
“Whether the High Court sitting in its appellate jurisdiction was correct to say that there is reasonable exception to the settled principle of law that any appellate court cannot pronounce or decide on the issues that the trial court has no opportunity to pronounce upon.”
Learned counsel for the appellant argued this issue one on two legs. On the first leg, the learned counsel submitted that at the Magistrate Court stage of this matter that the Magistrate in his judgment, found that the mandatory conditions given by the court of first instance, that is the Customary Court for the appeal to Magistrate Court were not complied with by the respondent herein (who was the appellant therein). At the High Court stage, the appellant herein pointed out that failure and argued that there was no valid appeal before the Magistrate Court and therefore the Magistrate Court lacked the jurisdiction to have pronounced on this matter. The respondent therein, in reaction to that objection, brought an application praying the High Court for an order allowing them to put in receipts which were the omission in the record of appeal as ordered by the Customary Court. This application was strongly objected to by the appellant herein. The High Court however granted the application and the said receipts were admitted and marked Exhibits B and C. Counsel for the appellant herein opined that even though same have been admitted, by the High Court, it still does not form part of the record of appeal from the Customary Court.
On the second leg, learned counsel submitted that appellate courts is not competent to pronounce upon issues which the trial court did not have opportunity of pronouncing upon and that there is no exception to this principle of law. He relied on the cases of Ogbeide vs. Osula (2004) FWLR (pt.191) 1609 @ 1621; Gbadamosi vs. Dairo (2007) FWLR (Pt.357) 812 @ 827.
ISSUE 2
“Whether the High Court sitting in its appellate jurisdiction has the power to amend the record of proceedings in the Magistrate Court before it to include Exhibit B and C or any documents whatsoever which were not part of the record of appeal either from trial court or the Magistrate Court sitting on appeal from Customary Court.”
In arguing this issue, learned counsel referred to page 15 of the record of appeal and submitted that the court of first instance in this matter (Customary Court) gave the following as conditions of appeal.
(1) The appeal must be filed within 30 days of judgment.
(2) The appellant must enter into a bond to prosecute the judgment.
(3) The appellant must deposit a sum of money for the compilation of the records.
Further, counsel referred to the finding of the Magistrate Court at page 48 of the record thus:
“Before going into the substance of the appeal per se, it is necessary for us to observe that even though some conditions of appeal were set by the lower court (Customary Court) for the appellant, there was no indication in the courts file that those conditions were met before the appeal was put forward. He went on that there was no bond or security customarily entered into like this that they are ready to prosecute the appeal timorously (sic).”
Consequent upon these citations, counsel submitted that those conditions for appeal ordered by the trial court were not complied with by the respondents herein as appellants at the Magistrate Court stage. He further submitted that the Magistrate Court confirmed that same were not complied and therefore the appeal from the trial court to Magistrate Court was incompetent ab initio. That being so, said counsel, the Magistrate Court heard and pronounced on this matter without jurisdiction and its judgment must be held a nullity. Counsel argued that there must be a valid appeal from the Customary Court to Magistrate Court before the High Court sitting in its appellate jurisdiction can have jurisdiction to hear this appeal. Counsel urged us to uphold this appeal and restore the judgment of the Customary Court since the judgment of the Magistrate Court and by that same token that of the High Court were all made without jurisdiction. He called in aid the following cases: Gwamgwan v. Gagare (2003) FWLR (Pt.164) 255 @ 263 ratios B – C; Jika v. Akuson (2006) ALL FWLR (Pt.293) 276 @ 287. Counsel relied on Ali v. Julde (2002) FWLR (Pt.131) 1900 @ 1906 and Chevron Nig. Ltd. vs. Warri NL Govt. (2002) FWLR (Pt.132) 177 @ 188, A – B and submitted that step no matter how well taken by any court without jurisdiction amounts to nullity. Counsel argued that admission of Exhibit B and C to the proceedings in the High amounts to amendment of record of proceedings of the Magistrate Court and that there is no law or rules of court that empowers the High Court to amend the record of proceedings of an appeal from the Customary Court in its appellate jurisdiction. He urged us to declare as nullity decision of both the Magistrate Court and the High Court for lack of jurisdiction.
ISSUE 4
“Whether the High Court sitting as an appellate court has jurisdiction to substitute dismissal of the appellant’s claim in the Customary Court.”
On this issue, learned counsel submitted that at page 121 of the record of appeal, the High Court agreed that issue of title (sic) to the disputed land did not form part of the appeal from the Customary court to the Magistrate Court and that the Magistrate Court did not have jurisdiction to have granted same to the respondent. He submitted that the customary court had jurisdiction and did award the title to the disputed land to the appellant and the High Court in its appellate jurisdiction has no power to set aside the decision of the customary court since the appeal to the Magistrate Court was incompetent, conditions laid down by the Customary Court having not being complied with.
RESOLUTION OF ISSUES 1, 2 & 4
In arguing these issues, counsel first argued that an appellate court exercising its appellate jurisdiction does not have power or jurisdiction to pronounce on an issue which the lower court from which the appeal came to it did not have the opportunity to pronounce upon. He pointed out that Exhibit B and C (which were receipts of some payments made by the respondent herein at the Customary Court in compliance with the conditions of appeal given by the Customary Court) were not part of the record of appeal from the Customary Court to the Magistrate Court. Therefore that the Magistrate Court in its appellate jurisdiction did not have the opportunity to pronounce on those Exhibit so as to cloth the High Court sitting as appellate court on this matter with jurisdiction to pronounce on same. It is a general principle of law that issues which the lower court from which the appeal emanated does not have the opportunity to pronounce upon are to be disregarded by the appellate court. The appellate court is bound by record of appeal before him. See: Tambari vs. Bongo (1999) 6 NWLR (Pt.605) 145 @ 151; Bello vs. Jallo (1999) 4 NWLR (Pt.598) 189 @ 195.
However, every general principle of law necessarily is subject to some exceptions. For instance, issue of jurisdiction can be raised for the first time on appeal even at the Supreme Court stage. Therefore issues bordering on jurisdiction constitute an exception to this general rule. To this extent, I cannot fault the holding of the learned Judge of the High Court at page 118 of the record, thus:
“I am sure that chief Balogun will be the first to accept that the above principle of law ably stated by His Lordship Commassie, J.C.A. must definitely have some exceptions. The first exception that easily comes to mind is when the issue of jurisdiction is raised for the first time on appeal. The Appeal courts have not formed the habit of referring such cases to the lower court for their pronouncements on such issues. New issues not canvassed at the lower court are sometimes allowed to be canvassed on appeal but with leave.”
Further, by virtue of Section 6(6)(a) of the Constitution of Federal Republic of Nigeria 1999 (as amended), courts have inherent jurisdiction to grant leave to a party to even raise and canvass new issues at appeal stage. It must be borne in mind that this inherent power of courts are discretionary, possible of activation by a party upon advancing genuine and cogent reasons while same should be exercised in his favour. It is clear from the records of appeal at page 69 that the respondent filed an application seeking for leave of the court to incorporate the said Exhibit B and C to the record of appeal. The application was granted by the learned Judge in the exercise of its discretionary power pursuant to Section 6 (6) (a) of the Constitution. The appellant herein did not exercise his right of appeal against the ruling therein. In any case, “Exhibits B and C” have no bearing on the substantive matter before the lower court. They only borders or touches on procedural requirements. Since the learned Judge of the lower court had exercised its discretion on the issue by granting leave, further issues ought not to be made on same as it does not in any way affect or aid the case of any of the parties. The era of technical justice is indeed over for good. See Onojobi vs. Olankpekun (1985) 11 S.C. (Pt.11) 155 @ 163; Onokoya v. F.R.N. (2002) 11 NWLR (Pt.779) 595 @ 657; Oruobu vs. Anekwe (1997) 5 NWLR (pt.506) 618 @ 629.
Next, the learned counsel for the appellant argued that an appellate court has no power to grant leave to a party to amend record of proceedings by incorporating some documents to the record. The inherent powers of the courts as conferred on it by the Constitution, can be exercised judiciously and judicially to amend record of appeal to incorporate omitted and relevant documents that will assist the court in ascertaining and deciding the real issues between the parties. See: Thynne vs. Thynne (1955) WLR 466; Queen vs. Ezechi (1962) 2 NSCC 78 @ 82. However the party seeking for such amendment must come by way of formal application, seeking the leave of court. See: Amogun vs. Adesina (1994) 4 NWLR (Pt.339) 503 @ 599, It is obvious that leave was sought and same granted by the lower court in exercise of its discretionary power. See pages 69 to 80 of the record of appeal.
This position is strongly strengthened given the fact that this appeal originally emanated out of procedure in the Customary Court with its often procedural errors or lapses. Acknowledging this factual situation, Section 45 of Customary Courts Laws, CAP 37 Laws of Osun State 2002 provides thus:
S.45 – “No proceedings in a Customary Court and no summons, warrant, process, order or decree issued or made thereby shall be varied, or declared void upon appeal solely by reason or any defect in procedure or want of form but every court exercising powers or appeal under this law shall decide all matters according to substantial justice without undue regard to technicalities.”
Further, the learned counsel for the appellant strenuously argued that the learned Judge of the High Court exceeded its jurisdiction and power when it held that the proper order the appellate Magistrate Court ought to have made after concluding that the appellant herein did not prove his case, was dismissal of the case and not awarding title to the disputed land to the appellants therein. In resolving this point, I am inclined to point out by way of preliminary, that it is settled principle of law that a claimant is to succeed or fail on the strength of his own case. The weakness of defendant’s case cannot assist the success of his case. See: Akulaku vs. Yongo (2002) ALL FWLR (pt.100) 1228 @ 1252.
However, where the claimants case failed for want of evidence that does not ipso facto confer title to the defendant unless the defendant has a counter claim. If the defendant has not counter-claimed, the proper order to make is dismissal of the claimant’s claim. See: Awoniyi v. Regd. Trustee (AMORC) (2002) FWLR (Pt.25) 1592 @ 1617; Anone v. Ikebudu (2001) FWLR (Pt.72) 1993; Awoniyi v. Shodeke (2006) ALL FWLR (Pt.340) 1041 @ 1056.
On this score, the learned Judge of the High Court was right in substituting dismissal of the plaintiffs case (appellant herein) in place of awarding title to the disputed land on the then defendant/respondent who has not counter claimed. Put in another way, when a plaintiff fails to prove his case as the learned magistrate held, nothing is awarded for a defendant who has not counter claimed. Further, learned counsel for the appellant quoted the learned High Court Judge out of con at page 121 of the record of appeal in their submissions on Issue 4 of their brief of argument. At page 121 of the record of appeal, the learned Judge of the High Court opined and I agree with him entirely that the learned Magistrate ought not to have awarded the title to the disputed land to the then defendant/appellant who did not counter-claim, having found that the then plaintiff/respondent had failed to prove their case. The learned High Court Judge did not agree that the issue of title did not form part of the appeal from the customary court at the said page 121 of the record of appeal.
In the instant case, the plaintiff in Suit No. MIK/1A/2002 failed to prove title, this does not translate to a declaration of title or order of possession in favour of the defendant/appellant therein at the Magistrate Court. The learned High Court Judge was eminently in order in substituting dismissal order of the plaintiffs case in place of award of title to the defendant/appellant therein at the Magistrate Court stage of this matter.
Counsel for the appellant further submitted that the appellate court has no power to amend record of proceedings. Speaking generally, this position cannot be faulted. See: Fawehinmi Construction Co. Ltd. v. O.A.U. (1998) 6 NWLR (Pt.553) 171 @ 183. However, in situations where failure to amend the record of proceedings will occasion miscarriage of justice or where facts proved and decisions given are at variance, the appellate court can exercise its inherent power to amend record of the trial court. In Metal Construction (WA) Ltd. vs. D. A. Migliore & Anor (1979) 6 – 9 S.C. 163, the Supreme Court opined thus:
“This court undoubtedly has inherent powers to amend the record of the trial court so as to comply with the facts proved before that court and decision given by it. The powers are exercised if and when necessary to prevent an occurrence of substantial injustice.”
See further: Jessica Trading Co. Ltd. vs. Bendel Insurance Co. Ltd. (1993) 1 NWLR (pt.271) 538 @ 547.
I have held earlier on in this judgment that the granting of leave by the lower court to include “Exhibit B and C” which are receipt of payment of fees in compliance with conditions of appeal ordered by the trial Customary Court was in order. I reiterate that Exhibit B and C has no bearing with the substantive issues between the parties. Their inclusion in the record of appeal did not assist any party in proving his case in any way. This is the era of substantial justice as opposed to technical justice. Put in another way, the granting of leave to include Exhibit B and C does not occasion any miscarriage of justice. Rather it paved way for parties to ventilate their respective substantive issues on appeal. To this extent I resolve Issues 1, 2, and 4 against the appellant.
ISSUE 3
“Whether the High Court sitting in its appellant jurisdiction properly applied guidelines to be followed in reviewing the decision from Customary Court.
In arguing this issue, learned counsel submitted that both the Magistrate Court and the High court not follow the guidelines as postulated in Duru vs. Onwumelu (2002) FWLR (Pt.89) 11 @ 94 and Agbeje v. Ajibola (2002) FWLR (Pt.92) 1675 @ 1691, C – D in considering this case as an appeal from the Customary Court. He submitted that both court applied standards that operates in superior courts in treating this case not minding that the Evidence Act does not apply to Customary Courts. He submitted further that the Magistrate in his judgment was wrong to have held that the evidence adduced by the parties in Customary Court rank pari-pasu despite superior evidence marshaled by the appellant at the Customary Court. He relied on Odofin vs. Oni (2001) FWLR (Pt.36) 807 @ 823 C – H
ISSUE 5
“Whether there was enough evidence in the record to enable the appellant to maintain an action in trespass.”
On this, counsel submitted that there are positive evidence in the record to enable the appellant sues in trespass. He referred to pages 1- 13, especially 9 – 13 of the record at the inspection of the land by the Judge and testimony of one Sabitu Fakunle, whom he said that gave a vivid evidence of the boundaries. He submitted that the appellant need not be physically present on the land to maintain action in trespass. He submitted further that it is in evidence that whoever becomes the Mosala usually enjoy the fruit of the land which is a chieftaincy land usually inherited by every Mosala. That there are also evidence that Chief Mosala and his family members have always forced the respondents out whenever they intruded on the land, subject matter of this action.
RESOLUTION OF ISSUE 3 AND 5
In arguing this issue, firstly the counsel complained that the lower court did not comply with guidelines in treating appeals from Customary Courts. He argued that the guidelines are laid by the Supreme Court in the cases of Duru v. Onwumelu (2002) FWLR (Pt.89) 1194 and Odofin v. Oni (2001) FWLR (PT.360 807 @ 823. Unfortunately learned counsel did not list those guidelines. However, in Duru vs. Onwumelu (supra), the relevant paragraph, per Uwaifo, JSC opined thus at page 1210 paragraphs C – D.
“It seems to me that an appeal court as well as a trial court called upon to make use of decisions of those courts should allow some latitude in regard to matters of procedure adopted by them in reaching those decisions so long as they are seen to have done substantial justice.”
I am unable to see where the learned Judge of the High Court and the Magistrate applied the standards that obtain in the superior courts in reviewing the pieces of evidence led by parties in this case. As to the evidence marshaled by parties on their root of title; there is no basis for the Magistrate Court’s finding that the parties evidence rank pari passu; that is equal. The case of the plaintiff/appellant was that his ancestor Yemuyiwa was granted the land in dispute. He could not establish grant by naming the grantor or present any evidence of grant before the court. (See page 3 of the record of appeal). On the other front, the defendant therein gave evidence that his ancestor Ajigbokun was the original settler on the disputed land who divided same among his four children namely Fakunle, Akintunde, Awoyemi and Fagbemi. (See page 6 of the record of appeal) Evidence showed that Fagbemi is the direct father of the 1st defendant while the 2nd defendant is the direct child of Awoyemi. The learned Magistrate at page 59 of the record evaluated the pieces of evidence led by the parties and found that the evidence of the defendant is strong, straight forward and coherent than that of the plaintiff. I am unable to decipher how and where the lower courts applied strict rules of practice and procedure in evaluating the pieces of evidence led by parties in this matter. In any case, the combined effect of the preamble and the interpretation Sections of Evidence 2011 is to the effect that provisions of the Evidence Act are applicable to all courts in Nigeria, including customary court. However, since the persons presiding in the customary courts are not trained lawyers, strict compliance with the provisions of the Evidence Act may not be insisted upon.
Further, the learned counsel argued that there are enough evidence to enable the appellant maintain action in trespass. Trespass is a civil wrong against possession. To be able to institute an action for trespass, the person must be in possession. An action in trespass presupposes that the plaintiff is either the owner of the disputed land or is in possession. See: Amakor vs. Obiefuna (1974) 3 SC 67 @ 78; Ogungbemi vs. Asamu (1986) 3 NWLR. As to occasions when claim for trespass will fail, the Supreme Court, per Ogwuegbu, JSC in Ojiako & anor vs. Ewuru & Ors. (1995) 9 NWLR (pt.420) 460 @ 477, opined thus:
“The claim for damages for trespass should also fail because the plaintiffs failed to establish that they were in actual possession of the land verged pink in Exhibit A.”
The poser here is whether the plaintiff/appellant herein is in peaceful possession of the disputed land to be able to sustain claim for trespass. The finding of facts by the lower court at page 121 of the record comes handy, thus:
“I agree with Chief Esan that the learned Magistrate was justified in his decision having regard to the evidence adduced both at the trial and at the locus in quo. On page 60 of the records, the learned Magistrate gave two reasons for his decision. First he referred to the pillars erected by the first defendant’s father with the name Fagbemi on it which, he felt suggested that the 1st defendant’s father had at time or the other had possession of the farmland. He also quoted from the evidence of one Mr. Jobi, the plaintiffs’ witness at the inspection that they had not been farming on the land for a long time and that was what gave opportunity for trespassing on the land. The learned Magistrate then drew the inference that the plaintiff had for long not been on the land. What is more, the plaintiff himself in page 3 of the records, went on the land for the first time after he became Chief Mosala and that was when he discovered the alleged trespass which he allegedly reported to the Kabiyesi. I think the conclusion of the learned Magistrate that the plaintiff was not in peaceful possession was borne by evidence.”
From this findings of the lower court which is roundly supported by the testimony in open court by the plaintiff, it is beyond doubt that the plaintiff/appellant herein was never in peaceful possession of the land in dispute. This explains why one of the reliefs the appellant sought at the customary court is that possession of the land be given to him.
Further at page 3 of the record of appeal, the plaintiff gave evidence that he was taken to the land in question for the first time after he was made Chief Mosala. Further he testified that “immediately we got there we met pillars writing at (sic) Fagbemi at the edge of the pillar and we report the matter to Kabiyesi of Ikoyi…” this piece of evidence put paid to the fact that the plaintiff/appellant was not in peaceful possession of the disputed land and therefore could not successfully maintain action in trespass. I so hold. This Issues 3 and 5 are also resolved against the appellants.
Having resolved all the issues in this appeal against the appellant, I hereby dismiss the appeal as lacking in merit. The judgment of the High Court of Osun State sitting in Ikire in Suit No. HRE/1CA/2005 is hereby affirmed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my Learned brother Sotonye Denton West JCA. I agree with the conclusion and I also abide with the consequential orders. The appeal lacks merit and it is accordingly dismissed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had a preview of the lead judgment of my learned brother SOTONYE DENTON-WEST, JCA. I agree with all the reasoning and conclusion reached therein. I too shall dismiss the appeal and it is so dismissed.
Appearances
Kayode Ali BalogunFor Appellant
AND
No appearance for the RespondentFor Respondent
