Lasun Alagbe
Veteran ijala poet, Alabi Ogundepo, has cause to heave a sigh of relief as he has won a legal battle over the ownership of some plots of land in Osogbo, the Osun State capital.
The land contested by a resident alonside some buyers is part of the expanse on which Ogundepo has his house in Osogbo.
He is from Saki but he has been living in the Osun State capital since decades ago.
According to him, he bought the property since as far back as 1978, but encroachers came by 2012, when the legal battle started.
He noted that he had had to commit emotion, prayer and little funds he has to the battle, noting that those he described as invaders believed they could overwhelm him.
“They used to taunt me in court,” Ogundepo told Phenomenal.com.ng in a chat, adding that they used to call him ‘Baba giegie’, meaning floundering frail old man.
“But at last, I got justice. They were shocked when the judge ruled that the land belongs to me. One of the people who gave evidence is an old man who was there when I bought the land. He told the court that I had been on the land since that time and that some of the people now contesting it with me were not born then,” Ogundepo, who recently clocked 80, said.
The old man, however, still has some battle to face as the defendants have appealed the case, to the Appeal Court in Akure.
“It will mean having to struggle for more means to continue to face them, but I know truth will continue to prevail,” he added.
Below is the statement of the judgement (SIC):
The plaintiff by paragraph 30 of his statement of claim filed on 25/11/2013 as follows:
1. Title to the statutory right if occupancy in respect of the piece or parcel of land situates, lying and being off Osogbo/Ilobu road, Agunbelewo area, Osogbo, Osogbo local government area of Osun state of Nigeria shown and delineated on survey plan no OS/OS/0833/2013/04 Dated 29/07/2013 drawn by surveyor O.T Ogunleke and thereon edged blue
2. N500,000.00 being general damages for trespass committed and still being committed on the plaintiff’s said land in dispute by the defendant.
3. Perpectual injunction restraining the defendants, their servants, agents, privies and/or anybody claiming through them from committing further acts of trespass on the plaintiff’s land now in dispute.
The defendants filed their amended statement of defense and counter claimed in their paragraph 14 on 21/5/2014 as follows:
A. An injunction restraining the plaintiff, his agents, servants or privies from further trespassing on the land which is in peaceful and exclusive possession of the defendants especially all that portion of land contained in the defendant’s dispute survey and therein verged red.
B. Th sum of N1,000,000.00 being special and general damages for the trespass committed on the defendant’s land and the cost of defending this action which consists but is not limited to:
a. Professional charges= N450,000.00
b. Dispute survey= N250,000.00.
Having completed pleadings, the case proceeded to the pre-trial stage where parties agreed that the case proceed to trial as no issue could be settled at that stage.
During trial, the plaintiff called eight witnesses while the defendants called five witnesses in defense and prove of their counter claim.
At the close of defense, parties filed, exchanged and adopted their final written address.
The case of the plaintiff in a nutshell is that the land in dispute which originally belongs to the Adeoyo family of Woru-oke under the native law and custom since time immemorial now belongs to him. That he was put in possession of the land by Representatives of the Adeoyo family and farmed on same and built a house on part of same. That sometimes in 2012, he discovered that some people encroached on his land and found out that the first defendant, a member of Adeoyo family of Woru-Oke compound sold part of his land to the second defendant and others unknown. That all effort at stopping him and knowing those he sold the land to, proved abortive.
The defense of the defendants is that the land in dispute belonged to the first defendant’s late father, Arasi who became the rightful owner by inheritance along with his siblings. That the land in dispute belonged to the fadipe section of the extended Lalakin family to the exclusion of the other sections. That Lalakin was the first to settle on the land.
Further that the land sold to the plaintiff by Lasisi Atoyebi was wrongly sold to the knowledge of the plaintiff and that the plaintiff knew that the land was fraudulently sold to him. They he has since exercised right is possession/ownership on the land by selling portions to people.
That he challenged the plaintiff’s possession and the matter was referred to the head of the family who inspected the land and concluded that Lasisi Atoyebi from Amosun section had no right to sell the land but pleaded with him to allow the plaintiff the portion where he built his house and warned him not to encroach on the other portion up stream.
The defendant’s counsel in his final written address filed on the 17/6/2021 raised two issues:
1. Whether the plaintiff has proved by preponderance of evidence his title to the land in dispute so as to make him entitled to an injunction against the defendants.
2. Whether the defendants have proved that they are entitled to a peaceful possession of the land in dispute and an injunction to protect their possession.
The plaintiff’s counsel also raise two issues in his address filed on 9/9/2021 which are similar to those of the defendants above.
The defendants coins submitted that the plaintiff is placing reliance on exhibits D and E. which are documents with which title was conveyed, though registrable but we’re not registered, could not therefore be relied upon as evidence of title.
She prayed the court to expung same having been wrongly admitted in evidence and lacking in evidential value.
She submitted further that where the title of the plaintiff is challenged along with that of his vendor, the source of his vendor’s title, the onus is on the plaintiff to state through his pleadings the source of his vendor’s title, that is the genealogical devolution of the land upon his vendor before same can vest a valid title on him.
Further that nowhere was the source of the vendor’s title mentioned in the plaintiff’s pleadings though PW3 and PW4 testify scantingly on this. However, that their evidence goes to no issue having failed to plead same.
On the second issue, she submitted that the testimony of DW2 is in support of the case of the first defendant to show that the first defendant sold lands to many people in the area and they have constructed their houses on their land without any disturbance frin the plaintiff who lives closeby. That in support is exhibit F and also the testimony of DW1
She submitted further that the first defendant as DW35 tendered exhibit H, J and K which were receipts of transaction is sale of land. Exhibit H with Mr Tunde Moronkeji, the owner of P.Cool pure water factory, PW7 in this case in the land agreement of purchase of land by Mr. Moronkeji from the first defendant.
Further that the first defendant relied on traditional history to establish his title and adduced uncontroverted evidence from traditional evidence, production of documents, acts of sale and overt evidence of possession and possession of adjacent lands to the disputed portion. This is even corroborated by the testimony of PW4 and PW5.
However, the plaintiff’s counsel submitted that PW3 of the male line of Woru family and PW4, a member of Woru-Oke testified on how title devolved on the vendors who transferred ownership evidenced by exhibits D and E to the plaintiff whereas the first defendant who claimed that the land belonged to the Fadipe section of Woru family to the exclusion of the other sections failed to call any member of the Woru family to substantiate his claim
He therefore failed to discharge the onus on him that the family property had been partitioned and the land given to the Fadipe section.
On the second issue, he submitted that the plaintiff clearly and accurately described the land in dispute by exhibit A while the defendants failed to show the accuracy of the lands as the testimony of DW4 and DW5 is contradictory.
That trespass no matter for how long cannot be converted to title and that the fact that the first defendant sold illegally some portions of the land in dispute to the second defendant and others unknown does not xonfer title to them.
He submitted that the plaintiff through his pleadings, exhibits tendered testimony of his witnesses has established his claim and therefore entitled to the claim while he urge the court to hold that the counter claim be dismissed.
Now to review the evidence before the court.
PW1, Surveyor O.T Ogunleke, tendered exhibit A, the survey plan. He testified that he was taken round the land and shown the features thereon.
PW2, Samuel B. Laoye, a boundary man to the land in dispute which he bought from the Woru family. That he has a building on his land and sold part of it to P.cool pure water enterprises
Under cross-examination, he stated that he sold two plots of land to p.cool pure water.
PW3, prince Samuel Oloyede, Olaojoyetan testified that Lalakin partitioned the land he inherited among his children and that the land in dispute belong to the Amosun section and by sale by Atoyebi Lasisi to the plaintiff.
Under cross-examination, he stated that he was not from the Woru-Oke family.
PW4, Atoyebi Waheed testified that his father, Atoyebi Lasisi sold the land to the plaintiff on behalf of the family as the family head of Amosun section.
PW5, Ibrahim Ayooye testified that his brother Atoyebi Lasisi sold the land in dispute which belonged to the Amosun section.
PW6, Muraina Bamidele shares boundary with the plaintiff but later sold some land to the plaintiff.
PW7, Peter Olutoba Fakomiti of P.cool pure water stated that he purchased his land from S.B Laoye, PW2 and never repurchased the land from the first defendant.
That the plaintiff is a boundary man to his land. That he is Peter Olutoba Fakomiti and tendered his international passport to confirm this as exhibit C.
PW8, Chief Alabi Ogundepo, the plaintiff stated that he bought his land from late Lasisi Atoyebi who sold on behalf of the Adeoyo family and Muraina Bamikole respectively, built on a portion and was never disturbed on the land until 2012 when the first defendant and others unknown started encroaching on same.
DW1, Prophetess Oluwatoyin Oduwaye testified that she purchased one plot of land on which the second defendant is from the first defendant.
DW2, Olatunji Gbenga bought his land from the first defendant and tendered exhibit F.
DW3, Ismaila Fadipe testified that the land belongs to his father who graciously released to the plaintiff only the portion on which he(plaintiff) has his house.
DW4, Surveyor Femi Olunlade stated that he was engaged by the defendants and he produced exhibit G where he stated that he reflected all the features shown to him on the land by the defendants.
Under cross-examination, he admitted making another dispute plan on 14/2/2018 with the same number as exhibit G. He stated this:
I do not know whether there are Muslim burial grounds on the larger portion verged yellow. I did not see any Muslim burial ground.
He stated this further:
….. As at when I did the survey, the culvert was not under construction but completed.
DW5, Wahab Fadipe, the first defendant testified in support of his case and tendered documents in evidence which were admitted as Exhibits H, J and K.
Under cross-examination, he admitted that he took DW4 round the whole land, that there is a Muslim burial ground in the fenced mosque in exhibit G and that there is a culvert under construction.
It is trite that the burden of proof is in the plaintiff and is in the balance of probabilities based on preponderance of evidence- section 134 of the evidence act.
It is settled that the plaintiff succeeds on the strength of his case and not on the weakness of the defense and that where the evidence of the defense supports the case of the plaintiff, the plaintiff is entitled to rely on same in proof of his case.
The evidence of the plaintiff and his witnesses before the court is that the land in dispute was bought by him vide exhibit D and E from Mr. Lasisi Atoyebi on behalf of Adeoyo family and Muraina Bamikole respectively. That he exercised rights on the land and even sold portions of same to others before the challenge by the defendants.
PW2, a boundary man who was never disturbed on his portion of land stated that he bought his own from the Woru family, has a building on it and even sold a portion to PW7which was confirmed. PW4 testified that the land belonged to the Amosun section and his father Atoyebi Lasisi sold same on behalf of the family as the family head while PW5 testified that his brother Atoyebi Lasisi sold the land which belonged to the Amosun section which shares boundary with PW6.
I then ask, is there any evidence to tilt the scale to the other side?
The defendants and their witnesses testified to the effect that the land belong to the first defendant.
DW1, Prophetess Oluwatoyin Oduwaye tendered a land agreement which was rejected and so marked while the first defendant as DW35, tendered a document that was admitted as exhibit K.
Taking a cursory look at exhibit K, same has been seriously altered.
I place reliance on the case of orji vs textile mills nig lmt and ors2009. Where Tobi JSC held thus:
It is elementary law that where a document is altered, it no more enjoys any legal life. The document becomes moribund or dead to the extent of the alteration. Accordingly, a party cannot rely on such a document because it is lifeless in law. The existing legal life is transferred to the new document which provides the alteration.
In the case under consideration, there is no new legal document or reason for the alternation in exhibit K.
The supreme Court in Gen. Muhammadu Buhar vs Inec and Ors (2008) held this per Tobi JSC:
a document which is inadmissible but erroneously admitted can be expunged from the record at the state of writing judgement.
Placing reliance on the above authorities, I hereby expung exhibit K from the record of the court. I so hold.
In addition, exhibit F tendered by DW2 to show exercise of right of ownership and sale by the first defendant is not signed by the author of same.
It is trite that an unsigned document by the author is worthless and does not have any efficacy in law. It does not therefore command any judicial value of validity.
O therefore hold that exhibit F is worthless and without any value of validity. It is an ordinary paper.
Is the testimony of DW4 reliable vis a vis that of DW5? I then ask.
DW4 who was taken to the land by DW5 as a professional whose testimony was quoted above, contradicted the testimony of DW5 in some areas. As quoted above, the contradictions a re from the Muslim burial ground in the area verged yellow and the culvert in the area. The testimony of DW5 is that he took DW4 to the land, that there is a Muslim burial ground and that the culvert in the area was under construction. Whereas, the DW4, a professional stated otherwise that there was no Muslim burial ground in the area and that the culvert was already fully constructed.
The testimony of DW4 and DW5 is contradictory. It is trite that the court is not in a position to pick or choose which testimony to believe. In the circumstance, I hold that the evidence of DW4 and DW5 is unreliable for reason of it’s contradiction.
In addition, on the other hand, DW4 admitted under cross-examination that ‘it is true that I made an earlier dispute plan on 14/2/2018 bearing the same number with exhibit G.
I then asked, should two survey plans exist with same number? Though he said other document is not before the court; but the admission of the author of the two different survey plans with same number admitted this much in court. This is to further show that the testimony of DW4 is worthless and not reliable. I so hold.
The first defendant tendered exhibit H to show the purchaser therein repurchased the piece of land earlier purchased from the plaintiff from him. Also that the purchaser in exhibit H, Mr Tunde Moronkeji A. is the same as PW7, Mr Peter Olutoba Fakomiti. PW7 tendered exhibit C, which is the certified true copy of the data page of his international passport which shows his name as FAKOMITI OLUTOBA PETER which is different from the names in exhibit H. The court sighted the original passport which was returned to him and admitted a copy.
From the documentary evidence placed before the court, I hold that PW7 before the court is FAKOMITI OLUTOBA PETER and not Mr Tunde Moronkeji as presented by the first defendant and that he is not the one in exhibit H. Therefore, not the one who repurchased the land as claimed by the first defendant.
From the totality of the testimony of the plaintiff’s witnesses which I believe and documents before the court, I hold that the plaintiff succeeds on the first leg of his claim and same is hereby granted.
GENERAL DAMAGES
General damages is as the law would presume to be a direct, natural and probable consequence of the act complained of. This is what flows from the act or commission complained of. It needs not be specifically pleaded and evidence led in proof of same.
Having held above that the plaintiff is entitled to his claim, I hold that the plaintiff is entitled to his claim for general damages. He is hereby awarded his claim of N500,000.00 (five hundred thousand naira) as claimed.
PERPECTUAL INJUNCTION
This can only be granted to the plaintiff who has successfully established his case as in this case. The plaintiff has proved his title to the land, therefore I hold that he succeeds on the grant of perpetual injunction and same is hereby granted in favor of the plaintiff against the defendants.
CONCLUSION:
The plaintiff succeeds on all the three grounds of his claim. I therefore grant as follows:
I. Title to the statutory right of occupancy in respect of the piece or parcel of land situates, lying and being off Osogbo/Ilobu road, Agunbelewo area, Osogbo, Osogbo local government area of Osun state of Nigeria shown and delineated on survey plan no OS/OS/0833/2013/04 Dated 29/07/2013 drawn by surveyor O. T. Ogunleke and thereon edged blue.
ii. N500,000.00 being general damages for trespass committed and still being committed on the plaintiff’s said land in dispute by the defendants.
iii. Perpectual injunction restraining the defendants, their servants, agents, privies and/or anybody claiming through them from committing further acts of trespass on the plaintiff’s land.
COUNTER CLAIM
Now to consider the counter claim of the defendants as quoted above.
The first claim of the defendants is for injunction to restrain the plaintiff from further trespass.
The evidence for consideration here is stated above while considering th case of the plaintiff; that is the testimony of DW1, DW2, DW3, DW4 and DW5. The testimony of the witnesses of the defence was completely knocked off and the exhibits tendered either expunged and/or held to be worthless and unreliable.
I therefore hold that there is no reliable evidence presentes by the defendants in support of their claim for injunction.
I hold in conclusion that th defendants are not entitled to the first leg of their claim.
SPECIAL AND GENERAL DAMAGES:
Special damages must be strictly and specifically pleaded and proved by qualitative and credible evidence.
The claim of special damages in line with the position of the law was claimed in the second leg of the defendant’s claim, but not proved by evidence. No receipt for the professional charges and dispute survey plan was tendered in prove of the claim
General damages as stated earlier flows from the immediate, direct and proximate result of the wrong complained of. It is not granted where as in this case as the defendant has failed to establish his case.
Flowing from the above therefore, I hold that the defendants are not entitled to this leg of their claim
Consequently and in conclusion, the claim of the defendants fail and same is hereby dismissed.
Signed by Hon. Justice K. M. Akano. Judge. 13/01/2022
