THE Court of Appeal, Akure Judicial Division, has waded into an Ondo State land ownership dispute involving Madam Alice Orido, the appellant and Messrs. Theophilus Akinlolu, the respondent, who sued for himself and on behalf of Julius Akinlolu's family of Ondo State, Nigeria.The land case originated from the Customary Court of Ondo State, Ore. In that court, the plaintiff's sought a declaration that he is entitled to the grant of customary right of occupancy over the piece or parcel of land, bounded by Mr. Gabriel Osuntuyi's land to the right, Jimoh's building to the left, express road to the top and Agbeda and Owi streams to the bottom, specifically situated and being at Kajola in Odigbo Local Government Area of Ondo State.The plaintiff also sought an injunction restraining the defendant, her agents, servants or privies from entering or trespassing and/or doing anything on the land, an order setting aside any purported instrument or certificate of occupancy purportedly obtained by the defendant and a sum of N1,000.00 as damages for trespass.At the trial, both parties testified, tendered documents and called witnesses.Going by the plaintiff's claim, the land in dispute and adjoining land belonged to one Gabriel Akinyemi Osuntuyi, who was allegedly said had sold the land to his father, Julius Akinlolu.To buttress his position, the plaintiff presented evidence of sale of adjourning parcels of land by Gabriel Osuntuyi to other purchasers.It was common ground between the parties that the land originally belonged to Benjamin Osuntuyi, Gabriel's father, who acquired the land by settlement. He alleged that when Gabriel got married, his father, Benjamin gave him the land to farm, construed the gesture as a gift inter vivos from Benjamin to his son, Gabriel, giving Gabriel the title to the land.The plaintiff added that after the sale of the land by Gabriel to his father, his father took possession and put tenants on the land. On his father's death, the plaintiff continued to manage the land until the defendant trespassed on the land driving away the plaintiff's tenant on the land.The defendant, on the other, claimed that the land did not belong to Gabriel Osuntuyi personally but to Benjamin Osuntuyi and that on the death of Benjamin, the land devolved on all his children as family land and that she bought the land for her son from the surviving members of Benjamin Osuntuyi family.In the court of the proceedings, the customary court conducted an inspection of the locus in quo. At the conclusion of hearing, the court after review of the evidence placed before it found that the agreement of sale (exhibit B) of the land in dispute was altered, that Gabriel Osuntuyi, who sold the land to the plaintiff's father did not prove his title to the land by gift or inheritance, and consequently, the plaintiff failed to prove his title to the land in dispute and dismissed his case.Dissatisfied with the judgment of the Customary Court of Ondo State, Ore, the plaintiff lodged an appeal against same to the appellate division of the High Court of Justice, Ondo State, Ore Judicial Division. The court allowed the appeal, set aside the judgment of the customary court and granted all the plaintiff's claims.Aggrieved by this decision, the defendant/appellant appealed to the Court of Appeal.From the issues distilled by the feuding parties, Justice Chniwe Eugenia Iyizoba, in her lead Judgment narrowed the whole issue to, whether, on evidence adduced by the plaintiff/respondent, there was any or sufficient proof of his title to the land in dispute'According to his brief of argument, Chief A.P.A. Ogefere, for the appellant reviewed the respondent's claims and submitted that the respondent did not claim sale under customary law but under English law but the agreement of sale but the agreement of sale tendered the sale was in accordance with customary law contrary to the oral evidence of the respondent.Also, he added there was no evidence of customary sale of the land as there was no evidence of actual handing over of the land in the presence of witnesses.Ogefere argued further that there was no evidence of gift inter vivos of the land in dispute to Gabriel by his father, Benjamin as the evidence of the witnesses was to the effect that Benjamin gave land to Gabriel to farm when he got married.According to the counsel, despite the failure of the respondent to prove these vital points and the proper dismissal of his case by the customary court, the lower appellate court reserved the judgment granting all reliefs claimed by the respondent, therefore, posited that the lower court erred by shifting the onus of proving that no gift inter vivos of the land in dispute was made to the defendant/appellant.Responding, Mr. Bade Awosunle, respondent's counsel, denied any wrongful shift of burden to the appellant, adding that, from the evidence of a witness that the land in dispute was given to Gabriel by his father, Benjamin during his lifetime, the onus to disprove this assertion automatically shifted to the appellant.Counsel further pointed out that the lower court considered the evidence of the respondent on the partitioning of Benjamin Osuntuyi's land at Bolorunduro and the implication of the failure of the appellant to adduce any evidence as to why the land in dispute was not included in the partitioning exercise and the evidence of exclusive enjoyment of land adjoining the land in dispute by Gabriel Osuntuyi in his lifetime.After reviewing the submission by both counsels vis--vis the judgments of the lower, the Court of Appeal, Akure, held that the appeal is meritorious and thereby allowed, while the judge set aside the decision of the trial court, as she also upheld the verdict of the customary court.
Click here to read full news..
