ISAAC ADEBOWALE & ANOR v. JOHNSON OYENIYI & ANOR
(2014)LCN/7532(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
CA/AK/95/2013
RATIO
PRACTICE AND PROCEDURE: THE DOCTRINE OF LACHES; WHETHER THE INVOCATION OF THE DOCTRINE OF LACHES WHERE NONE OF THE PARTIES PLEADED THE SAME CONSTITUTE AN ERROR OF LAW BUT DOES NOT OCCASION ANY MISCARRIAGE OF JUSTICE
I do agree with the Learned Counsel for the Appellants that the invocation of the doctrine of laches in the instant case when none of the parties pleaded same constitutes an error of law but clearly the error does not occasion any miscarriage of justice. As pointed out by the learned Counsel for the Appellants and as recognized by the learned trial judge himself the doctrine of laches is a weapon of defence and not a sword to be used by or for the Plaintiff’s benefit. See Ikuomola V Oniwaya (1990) 4 NWLR (Pt.146) 617 at 626. per. MOJEED ADEKUNLE OWOADE, J.C.A.
COURT: DUTY OF THE COURT; WHETHER A COURT HAS NO BUSINESS TO DECIDE ANA ISSUE NOT PLACED BEFORE IT
In any event, a court of law has no business whatsoever to decide an issue not placed before it, For as it is usually said a court of law is neither a father chrismas granting undeserved reliefs nor a knight errant looking for skirmishes all about the place.
See Ejowhomu v Edok-Eter Ltd (1986) 5 NWLR (Pt.39) 1 at 21; Chief Ebba v. Chief Ogodo & Anor (1999) 6 SCNJ 168; Union Bank of Nigeria V Professor Ozigi (1994) 3 SCNJ 42 at 57; Ossai v. Wakwah (2006) 2 SCNJ 19 at 36. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. ISAAC ADEBOWALE (DECEASED)
2. BURAIMOH LOOGUN – Appellant(s)
AND
1. JOHNSON OYENIYI
2. CHIEF OSUNWALE – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of A. A. G. Onibokun J. delivered HIF/79/95 in suit No. in the High court of Justice, Osun State sitting at Ile-Ife.
The Respondents as Plaintiffs issued a writ of summons against the Appellants as Defendants on 25/5/1995. By their Amended statement of claim dated 8/2/2006, the Respondents (Plaintiffs) claimed against the Appellants (Defendants) in paragraph 40 (1) – (6) as follows:
1. Declaration that the members of Arowosile family is (sic) are entitled to equal acreage of land in the de-reserved area of Ife Forest reserve as compensation for the area of land acquired by the defunct Western State Government for the permanent site of University of Ife now Obafemi Awolowo University Ile Ife.
2. Declaration that the members of Arowosile family are entitled to Plots 31, 52, 54, 24, 36, 25, 65 and 41 in the de-reserved Ife Forest reserve as compensation for the area of land acquired by the defunct Western State Government for the permanent site of University of Ife now Obafemi Awolowo University Ile-Ife.
3. Declaration that Akui family is not entitled to more acreage of land in the de-reserved area of Ife forest than the number of acres acquired by the defunct Western State Government for the permanent site of University of Ife now Obafemi Awolowo University.
4. Declaration that the area now occupied by Akui family in the de-reserved Ife forest reserve which were earmarked for members of Arowosile family pursuant to affidavit swore by Isaac Adebowale Baale of Akui family on 7th August 1990 formed part of the area to which members of Arowosile family are entitled in the de-reserved area of Ife forest reserve.
5. Declaration that the Defendants cannot legally occupy, collect any form of rent or farm on the Area which was given to the Defendants pursuant to affidavit swore by Isaac Adebowale Baale of Akui family on 27th August 1990 which area formed part of the area to which the Plaintiffs members of Arowosile family is entitled in the de-reserved area of Ife forest reserve.
6. Injunction restraining the Defendants by themselves, their servants, agents privies or any person or persons whatsoever from managing or exercising any form of control or authority on any portion of the area to which the members of Arowosile family is entitled in the de-reserved area of Ife forest reserve.
Pleadings were filed and exchanged culminating into the Defendants/Appellants Amended Statement of Defence of 9/1/2007. The Respondents as Plaintiffs claimed that their Awosile family are the descendants of Lakata through Majodiyomi and that their Agbe family land was part of the land acquired by the Government of Western Nigeria via Notices Nos.392 of 13th March 1961 and 351 of 25th May 1964. That they collected compensation from Government for the cash crops on this area of land part of which was used for the establishment of the then University of Ife (now Obafemi Awolowo University).
That sometimes in 1989 the Government of Oyo State redeemed its earlier pledge to re-settle land owners by allocating 13.852 acres of land to all land owners at the Ife forest reserve. That the plots allocated to the Plaintiffs Respondents family are number 31, 52, 54, 24, 36, 25, 65 and 41 on the Resettlement scheme for people displaced at University of Ife Oyere Aborisade Plan No.IFE 101 of 1986 and that the Appellants Akui family was allotted Plot No.14 on plan 735.
The Plaintiffs Respondents said they entered into possession of the plots and planted cocoa trees, Kola trees, orange trees etc on the plots so allocated to them until the Appellants unlawfully trespassed on their land. The plaintiffs Respondents averred further that the matter was reported to the Ooni of Ife who intervened by setting up a panel to look into the anomalies and the committee concluded that since the Defendants Appellants family did not protest when the name of the plaintiffs Respondents family was inserted on the plan for resettlement of displaced farmers, they (the Respondents) could no longer complain.
The Defendants Appellants on the other hand asserted that there was no one in the history of Moro Township handed down by the ancestors of the Defendants Appellants many years ago, whose first name or surname was “Lakata”, That Lakata was the alias of Inufinsa, the father of Bilewu – the first tenant of Ooni Ojigiri in Moro hinterland. That the Plaintiffs Respondents were their tenants at Agbe and as a result, the land allocated to the Plaintiffs Respondents by Government which parcels of land were subsequently re-allocated to the Appellants by Ooni of Ife belonged to the Defendants/Appellants – Akui family.
Also, that they initially had the impression that the then Government wanted only to pay compensation for cash crops and that was the reason why they did not object to the payment for cash crops to the Respondents who are their tenants. But, that they were surprised when eventually instead of their names as descendants of Ojigiri appearing solely on the Government Resettlement Plans as owners of land, the names of the members of the Respondents family also surfaced as owners in plan Nos.IFE 44 of 1963 IFE 101 and also on Plan 735.
The defendants/Appellants further averred that the members of the Plaintiffs/Respondents family were among the dishonest tenants of Ooni Ojigiri, who illegally claimed the right of original ownership of plot Nos. 31, 52, 24, 25, 36, 41, 54 and 65 on which they farmed as tenants at the time of land acquisition and induced government surueyors to survey poftions of land on which they farmed individually in their names. That, eventually, the Ooni of Ife, Oba Okunade, Olubuse II intervened and executed reversionary measure on Resettlement plan No. TPW 735, with a view to correcting the anomalies concerning the right of original ownership and authorized the Appellants to hold and use the plots of land allocated in replacement of the plots “illegally claimed by the Oyo speaking tenants of Akui family at Moro, in accordance to native law and custom as shown on Resettlement Plan No. TPW 735. Consequent, on this, the Appellants tendered allocation papers from the Ooni of Ife marked as Exhibits JOA 4 to JOA 18 in support of their case.
At hearing the Plaintiffs (Respondents) called three (3) witnesses while six (6) witnesses testified for the Defendant (Appellants). At the close of their respective cases, Counsel on both sides submitted written Addresses which they adopted. On the 10th of December 2012, the learned trial judge delivered his judgment. He disbelieved the traditional evidence of the Defendants/Appellants that the ancestors of the Plaintiffs Respondents were tenants of Ooni Ojigiri. And, that in any event, traditional history is irrelevant in this case as such histories have been superseded by the Government acquisition and replacement of Agbe land by Government to the Plaintiffs/Respondents. The learned trial judge found in favour of the Plaintiffs in terms of their Claims/Reliefs.
Dissatisfied with the said judgment the Defendants/Appellants filed a Notice of Appeal (containing 12 grounds of appeal in this court on 25/2/2013. Appellant’s brief of argument dated 25/7/2013 was filed on the same day.
Respondents brief of argument dated 4/11/2013 and filed on 5/11/2013 was deemed filed on 29/4/2014. earned Counsel for the Appellants nominated four (4) issues for determination. They are:
1. Whether traditional history is relevant in this case or whether it has been overtaken by the government acquisition of the farmland at Agbe (Modomo) the foundation of the land in dispute at Oyere Forest Reserve.
(b) If traditional history is Relevant whether the Plaintiffs/Respondents did not inherit a tenant status at Agbe in the center of Modomo.
2. Whether the Allocation Papers (Exhibits JOA (4) to JOA (19) did not weaken the case of the Plaintiffs/Respondents and enure for the Defendants/Appellants.
3. Whether there is any iota of evidence on records justifying the granting of Plaintiffs/Appellants Reliefs 4 and 5 which Reliefs were based on an affidavit not tendered before the trial court.
4. Whether the doctrine of laches is relevant to this case and in any case whether it was rightly resolved in favour of the Plaintiffs/Respondents as was done in this case.
Learned Counsel for the Respondents on the other hand formulated three (3) issues for determination in this appeal as follows:
1. Whether the findings of facts that the issues of traditional history had been overtaken by the acquisition of the land in dispute by the Government was not based on preferable family traditional history and available evidence before the trial court.
2. Whether considering the available evidence, the trial court was not right in holding that the Respondent’s claim of ownership based on acquisition and compensation by Government superseded the Appellant’s contention of ownership based on traditional history.
3. Whether the trial court was not right in its view that allocation of land to the Appellants by Ooni of lfe cannot defeat Government’s earlier allocation of the same pieces of land to the Respondents in the de-reserved area of Ife Forest Reserve.
Arguing Issue 1, Learned counsel for the Appellants reviewed and reiterated the traditional histories offered by the parties on their claims to the land at Agbe (Modomo) and submitted that traditional evidence is relevant in this case determine the real to owners of the Agbe farmland which if the foundation or bedrock to be entitled to land compensation at the Oyere de-reserved forest.
In effect, that the learned trial judge was not right to have held that traditional history had been overtaken by the Government’s acquisition of the land at Agbe within Modomo. That even if the acquisition was gazetted, the issue of traditional history would still be relevant in order to determine the true owners of Agbe farmland. He submitted that the trial judge himself would have realized the relevancy to this case of traditional history when he eventually reviewed the conflicting traditional history of the contending parties preferring (albeit erroneously) that of the Plaintiffs (Respondents) to that of the Defendants (Appellants).
Learned Counsel submitted that an evaluation of the two conflicting traditional histories will obviously show that the traditional history of the Defendants Appellants is more cogent than that of the Plaintiff ‘s Respondents.
He submitted that the learned trial judge disbelieved the Appellants version of traditional history because according to him “the Defendants testimony is ludicrous and full of hearsay”. That, to the contrary traditional history is generally of the nature of “Hearsay evidence”.
He referred to the case of Agwam Obioha v. Nwofor Duru (1994) 10 SCNJ 48 at 58, and added that the unchallenged evidence of DW1 that Agbe, the land in dispute, is directly in the middle or centre of Modomo belonging to the Appellants ancestor Origiri raises the presumption that the owners of Modomo are also the owners of Agbe. He referred to the provision of Section 35 of the Evidence Act 2011 and the cases of Chief Ibibio Dokubo v.Chief J. Omoni(1999) 6 SCNJ 168; Ekwere & Sons v. Nakmakosi Iyiegbu (1972) 6 SC 116.
Learned Counsel for the Appellants summed up that issue 1 should be resolved for the Appellants for the following reasons:
(a) The traditional history of the Defendants/Appellants is more cogent’ coherent credible and convincing and should be preferred to that of the plaintiffs Respondents.
(b) Exhibits JOA (2) and (3) are mere survey plans and not documents duly authenticated as contemplated by Idundun V Okumagba’s case (2000) 20 WRN 127.
(c) The Plaintiffs Respondents Inherited tenant status right from their ancestor, Lakata.
(d) They were only entitled to compensation for their crops at Agbe farmland.
(e) Being not landowners at Agbe located at the centre of Appellants Modomo farmland, the Plaintiffs/Respondents are not entitled to any land allocation at the Oyere de-reserved forest.
The answers to the Appellants Issue 1 could be found partly in the Respondents treatment of issue 1 and partly in the treatment of issue 2. In all, the Learned Counsel for the Respondents submitted that there is evidence in support of the conclusion of the trial court that the Plaintiffs/Respondents claim of ownership based on acquisition and compensation by Government superseded the Defendants/Appellants contention of ownership based on traditional history. There was no document before the court showing that plots 31, 52, 54, 24, 36, 25, 65 and 41 were acquired from the Appellants by government to entitle them to the land in dispute in the de-reserved area. He referred to the case of Shell Petroleum V Edamkue (2009) 10 SCM 150 at 171 that where there is evidence in support in a trial court’s conclusion an appellate court will not interfere.
Counsel submitted further that the trial court properly assessed and evaluated the evidence of the parties and that it is the law that an Appellate court will not ordinarily interfere with the findings of fact made by a trial court or substitute its own views for those of the trial court.
He referred to the cases of Lagga v Sarhuna (2008) 9 SCM 68 at 69; Onyejekwe v. Onyejekwe (1999) NWLR (Pt.596) 482.
In deciding issue 1, it seems to me that the learned trial judge considered the traditional histories of the parties out of abundance of caution. This is because it is common knowledge between the parties that suit No.HIF/79/95 which led to this appeal does not concern the title or ownership of Agbe (Modomo) land. There is nothing in any of the five (5) declaratory reliefs sought by the Plaintiffs/Respondents that relate to the title to any piece of land at Agbe (Modomo). There was no claim at all for acceleration of title to land.
The Defendant/Appellants also did not counter-claim in any form. In such circumstance, the first justification for the learned trial judge’s holding that traditional history is not relevant to the case is not indeed the fact that the Government Acquisition of the land at Agbe superseded the Defendants/Appellants contention of ownership based on traditional history but the fact that at no time did the Plaintiffs/Respondents seek for the Declaration of title not to talk of Declaration to title of land at Agbe.
Rightly or wrongly, the Government of Western State of Nigeria at the time of acquisition believed and/or accepted after due processes that the land at Agbe belonged to the Plaintiffs/Respondents instead they re-settled them by allocating to them plots 31, 52, 54, 24, 36, 25, 63 and 41 in the de-reserved Ife forest whereupon they entered possession on their plots substituted for them. The present suit is a declaration that they are entitled to those plots and not a declaration (any longer) that they are the owners of the land at Agbe (Modomo). In the circumstance, the learned trial judge was not wrong to have held inter alia that:
“In my view, the issue of traditional history has been overtaken by the acquisition of the land in dispute by the Government. Whatever claims anyone or acquired land has been extinguished particularly when the acquisition has been gazetted. Whether the particular land was family land or however described the land had been acquired, and it thus became Government-owned. It was common ground between the parties that the owners of the acquired land were re-settled at Oyere forest Reserve but while Plaintiffs maintained that members of their family were among the displaced land owners, it was the case of the Defendants that Plaintiffs were their tenants who were not entitled to resettlement, but only to compensation for cash crops—“.
In the instant case, the claim of the Plaintiffs Respondents is not for declaration of title to land rather it is for declaration that they are the owners of land substituted by Government for their acquired land, the Appellants did not counter claim. The learned trial judge was right to have held that traditional history of the parties is not relevant.
Issue 1 is resolved against the Appellants.
On issue 2, Appellants Counsel submitted that the learned trial judge found in favour of the Plaintiffs/Respondents and described Exhibits JOA (4) to JOA (18) letters of allocation to the Appellants by the Ooni of Ife as “mere toothless bulldogs as the allocation had been done by the Government who acquired and replaced land—”
Appellant Counsel agreed with the learned trial judge that it is correct to say that whatsoever the Government has gazetted is final but that in the absence of any such gazette produced by the Plaintiffs/Respondents, Exhibits JOA (4) to JOA (18) could not properly be described as “a toothless bull dog—“.
Appellant Counsel reviewed the evidence of DW1 – DW6 and trial judge had reviewed and evaluated the evidence of DW1 – DW6, he should have ascribed probative value to them and would have given his judgment in favour of the Defendants/Appellants. And, would have found that Exhibits JOA (4) to JOA (18) (Allocation Papers) were given to the Defendants/Appellants by the Ooni of Ife not just as a peace broker but that the allocation papers were given upon virgin forest and not already cultivated land as claimed by the Plaintiffs.
In answering Issue 2, Learned Counsel for the Respondents restated the cases of the parties and said that the Respondents case was that their land forming part of the land acquired for the establishment of University of Ife was compulsorily acquired vide Notices Nos. 392 of March 13th 1961 and 351 of May 25 1964 by the Government of Western Region of Nigeria and area acquired was succinctly stated in Plan No. Ife 44 (Exhibit JOA 3).
That the Government paid for the crops on the land and promised to grant virgin land to them which promise was fulfilled in 1989 by Government who allocated the same number of plots acquired from them in the de-reserved area of Ife Forest Reserve which were shown in plan No. Ife 101 (Exhibit JOA 2) and plot No.14 shown on Exhibit JOA 2 as the land given to the Appellants. That the Respondents relied on these two documents of title as well as well as Exhibit JOA 1 which was the Report of the committee set up by Ooni which directed the Respondents to go back to the land allocated to them by Government after the Appellants went to pursue them from the land.
Learned counsel for the Respondents submitted that the Appellants case on the other hand was that the land in dispute belonged to them by virtue of Exhibits JOA (4) to JOA (18) which are allocation papers by which Ooni of Ife allocated all plots where Respondents names appeared on the Government documents to the Appellants. And, that the Appellants relied on the allocation papers as their documents of title.
It seems to me that an additional decisive factor for issue 2 which was not directly alluded to by the learned Counsel for the Respondents is the admission of the Respondents case by the Appellants in terms of the allocation of plots 31, 52, 54, 24, 36, 25, 65 and 41 to the Plaintiffs Respondents by the Government of Oyo State in replacement of the land acquired from the Respondents at Agbe. How, then would the Appellants expect the learned trial judge to recognize any subsequent allocation by the Ooni of Ife of the same plots after the admission of allocation by Government of the plots to the Respondents by the Appellants themselves. For example, the evidence of the star witness for the Appellants DW1 at page 158 of the record is quite instructive:
“—- Majodiyomi’s children Plaintiffs in this suit. They inherited tenant status in respect of Agbe farmland. Plots 54, 24, 25, 41, 65, 36, 31, 52 are the plots descendants of Majodiyomi inherited: Plot 14 is the farm Ojigiri used for farming before he became Ooni His children i.e Akui farming inherited it until they got University land in 1961—”
In other words the Appellants admitted the fact that plots 31, 52, 54, 24, 36, 35, 65 and 41 were allocated to the Respondents in the Oyere de-reserved forest for resettlement before the subsequent allocation of the same plots by the Ooni of Ife to the Appellants.
It is trite law that what is admitted need no further proof. Section 123 Evidence Act 2011, see also the case of Chief Okparaeke of Ndiakaere & Ors v. Obidike Egbuonu & Ors (1941) 7 WACA 53.
In the instant case, the learned trial judge was right to have held that:
“—-Exhibits JOA 4 to JOA 18 are mere toothless bulldogs as the allocation had been done by Government who acquired and replaced land. By the Government allocation the Defendants are nonetheless, the owners of plots 14 and has no claim or right under traditional history or by Government allocation of the de-reserved area at Oyere to the land in dispute”.
Issue 2 is resolved against the Appellants.
On issue 3, Learned Counsel for the Appellants raised the question whether there was any iota of evidence justifying the granting of Reliefs 4 and 5 being claims based on an affidavit not tendered.
Indeed, the Learned Counsel to the Respondents do not seem to have any answer to Appellants issue 3.
I do agree with the Learned Counsel for the Appellants that the learned trial judge fell into error in granting Plaintiffs Reliefs 4 and 5 which were specifically based on an affidavit which was not tendered before the court.
Incidentally, and as pointed out by the Learned Counsel for the Appellants, the learned trial judge at first at page 222 of the record held to the contrary and declared.
“—the Affidavit sworn to by Isaac Adebowale, Baale of Akui on 7th August 1990 cannot and should not be the basis of ownership of the land in dispute; and I so hold.”
He continued:
“On claims 4 and 5, I asked for Further Address since such affidavit was not tendered in evidence. Whilst Prince Ogunleye for the Plaintiffs confirmed that no such affidavit sworn to by Isaac Adebowale, Baale Akui was tendered in evidence, it was the submission of Mr. Layi Ayinde Learned Counsel to the Defendants that there was no evidence led in court as to any affidavit and therefore there is no basis for Reliefs 4 and 5”.
Surprisingly, despite the agreement of Counsel to the parties in the court below that the said affidavit by the Baale Akui was not in evidence and therefore that there was no basis for Plaintiffs Respondents Reliefs Nos. 4 and 5 the learned trial judge bursted into unnecessary emotions ironically backed up with a statement of his judicial oath and after referring to the evidence of PW1 and paragraph s 27 and 28 of the Plaintiffs/Respondents Amended Statement of claim nevertheless granted Respondents Reliefs 4 and 5 without any opportunity of seeing the affidavit on which the said Reliefs were based.
Clearly, and as was pointed out by Bate J. in Muhammadu Duruminiya v. Commissioner of Police (1962) NNLR 70 at 73 – 74;
“a trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument.The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested“.
In the instant case, the learned trial judge was clearly wrong to have granted Plaintiffs Respondents Reliefs 4 and 5 based on an affidavit that was not tendered in open court.
Issue No. 3 is resolved in favour of the Appellants.
On issue 4, Learned Counsel for the Appellants complained that the learned trial judge in his judgment, suo motu, raised the issue of laches without giving Counsel on both sides the opportunity of addressing him on same. This, he said is in spite of the fact that neither party raised the issue of laches in pleadings and/or oral evidence but that yet it was evoked to give judgment in favour of the Plaintiffs Respondents thereby occasioning a miscarriage of justice.
In response to issue 4, Learned Counsel for the Respondents submitted that the lower court did not solely base its decision on the doctrine of laches as the court held at page 215 of the Record as follows:
“The inaction of the Defendants for 31 years (land acquired in 1960, Notices in the Gazette in 1964 but suit instituted in 1995) is not a matter to be ignored, or to be swept under the carpet. Though generally used as a defence the circumstances of this suit makes it available to the Plaintiffs because they sued and they are not trespasser as I have believed their version of the history and devolution as analyzed above, and also that they had gotten the land allocated to them by the Government. Under the historical version, and the subsequent acquisition and re-allocation by government the land in dispute belongs to the Plaintiffs and I so hold”.
Counsel submitted that the Appellate court will not set aside the decision of a lower court which is right merely because the trial judge gave a wrong reason for the same. And, that, the paramount consideration for the Appellate court is whether the decision is right and not necessarily whether the reasons are right.
He referred to the case of Ibuluyi & Ors v. Dibiko & Ors (2010) 7 SCM 100 at 117.
I do agree with the Learned Counsel for the Appellants that the invocation of the doctrine of laches in the instant case when none of the parties pleaded same constitutes an error of law but clearly the error does not occasion any miscarriage of justice. As pointed out by the learned Counsel for the Appellants and as recognized by the learned trial judge himself the doctrine of laches is a weapon of defence and not a sword to be used by or for the Plaintiff’s benefit.
See Ikuomola V Oniwaya (1990) 4 NWLR (Pt.146) 617 at 626.
In any event, a court of law has no business whatsoever to decide an issue not placed before it, For as it is usually said a court of law is neither a father chrismas granting undeserved reliefs nor a knight errant looking for skirmishes all about the place.
See Ejowhomu v Edok-Eter Ltd (1986) 5 NWLR (Pt.39) 1 at 21; Chief Ebba v. Chief Ogodo & Anor (1999) 6 SCNJ 168; Union Bank of Nigeria V Professor Ozigi (1994) 3 SCNJ 42 at 57; Ossai v. Wakwah (2006) 2 SCNJ 19 at 36.
Issue No. 4 is also resolved in favour of the Appellant.
In this appeal, Issues Nos. 1 and 2 are resolved against the Appellants while issues Nos. 3 and 4 are resolved in favour of the Appellants.
Consequently, the appeal is allowed in part. The consequence of the resolution of issues Nos. 3 and 4 in favour of the Appellants is first that the plaintiffs Respondents Reliefs Nos. 4 and 5 should not have been granted to Respondents and also that Relief No 6 dealing with injunction would now only be limited to the plots Nos. 31, 52, 54, 24, 36, 25, 65 and 41 as described in the Plaintiffs/Respondents Reliefs No. 2.
The judgment of the learned trial judge is accordingly set aside to the extent of granting Plaintiffs/Respondents Reliefs Nos. 4 and 5. Plaintiffs/Respondents Reliefs No. 4 and 5 are not proved and are accordingly dismissed.
Injunction is hereby granted in terms of Plaintiffs/Respondents Relief/claim No.6 restraining the Defendants/Appellants by themselves, their servants, agents, privies or any person or persons whatsoever from managing or exercising any form of control or authority on Plots 31, 52, 54, 24,36, 25, 65 and 41 being the entitlement of members of the Arowosile family in the de-reserved Ife Forest reserved as compensation for the permanent site of University of Ife now Obafemi Awolowo University Ile-Ife.
The parties to this appeal shall bear their respective costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the leading Ruling delivered by my Lord Owoade, JCA, and I agree that the appeal be allowed in part as set out in the leading Judgment.
The Issue of laches addressed on, truly did not occasion any miscarriage of Justice, although raised suo motu without the parties been given a right to address on it at the trial court.
The affidavit evidence upon which the court relied was clearly a hear say piece of evidence as no foundation had been laid nor was it tendered at the trial court. Head or tail the evidence of re-allocation by the Government of plots of land superceeded any other allocation made by any other authority or person in respect of a government reserved area, such as a Forest Reserve that had been de afforested and re-allocated in compensation for a prior or previous compulsory acquisition.
A re-settlement scheme is a public exercise of right by Government and title derived pursuant there from is valid and can be founded upon for a declaration of title.
The Appellants had admitted this fact of allocation. The Appellants could not have been given what their grantor did not possess at the time. In consequence, I agree that the appeal be allowed in part only and in terms of the orders consequential therein contained in the leading Judgment.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances
Olayiwola Ayinde Esq .For Appellant
AND
Z. O. Alayinde Esq. For Respondent
