Chief Busari Adepoju Akande V. Alhaja Hunmuani Alaga (1988)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

This appeal has been lodged against the decision of the Court of Appeal sitting at Ibadan. The Court dismissed the judgment of the High Court Ibadan where the claim was for-

(i) declaration of title to a piece of land at Ibuko area of Ibadan:

(ii) injunction restraining the defendant, his agents and privies from committing any act of trespass on the land.

The Court of Appeal dismissed the appeal against the judgment of the High Court and the Defendant who has lost in the two courts, has now appealed to this Court. The Plaintiff’s claim was one of a straight-forward conveyance from the Fadiwin Family who she claimed originally owned the land while the Defendant’s claim was that he got his title from two sources – One portion from Ilaji Family (indeed he discovered that the Ilaji Family sold more than they had to him hence he went to the owners of the excess) the other portion (that is the portion by Ilaji Family which Ilaji did not own) he got from Odetunde Family.

The defendant relied upon previous litigation on the land in dispute.

They are-

1. Suit No. 1/244/57: Bamigbade & Anor. v. Lawani Fadiwin Fagbenro.

I think the claim in regard to this previous litigation is well put in the Brief filed by the Defendant/Appellant. It was that in the suit the predecessors of the present Defendant/Appellant were the Plaintiffs. They took action against the Fadiwin Family that is the predecessors in title of the present Plaintiff/Respondent. The Judge in that case (Doherty, J.) pointed out that there was an earlier case in which Fadiwin had sued one Suberu Alake and Raji (of Ilaji Family). That suit, Doherty, J. said ended in the Lieutenant Governor’s Court. According to Doherty, J. the land in dispute in that earlier case was awarded to the Fadiwin Family and that all the courts in that earlier case, and that must have included the Lieutenant Governor’s Court, unanimously held that the old course of the Ogunpa Stream was the boundary between Fadiwin Family and Ilaji Family.

The Defendant has submitted that the land in dispute in the present action is on the Ilaji Family side of that boundary and afortiori, the Defendant relied on estoppel that is the action, 1/244/57, aforesaid, has estopped the Plaintiff from disputing the title of the Defendant whose title was derived from the Ilaji Family.

The other case relied upon by the Defendant/Appellant was

2. Suit No. 1/145/68: Akande v. Lamidi Fadiwin Fagbenro. An action for trespass. It was brought by the present Defendant against the Fadiwin Family. Be it noted that the present Plaintiff/Respondent claimed title from Fadiwin Family. The claim was that having purchased the land from Ilaji Family, the Fadiwin Family were and the Appellant claim in this appeal was that Fakayode, C. J. who tried the case pointed out that land in dispute is enclosed by the old and new courses of the Ogunpa Stream and that the original owners were the Odetunde Family.

However at the trial it was necessary and both parties agreed that the Court should visit the locus in quo. During that visit, one man Suberu Akana Oke who claimed to be a member of the Ilaji Family volunteered to assist the Court by pointing out the area of the land in dispute. The Court later took the evidence of this man though there was strong opposition from the learned Counsel for the Defendant. The gist of his evidence was that the Defendant in his surveyed plan included land which the Ilaji Family never owned nor sold to him and which in fact belonged to the Plaintiff. According to the record of proceedings this witness was cross-examined at length but the Judge in accepting the evidence noted that the witness was not shaken in his testimony.

What is more, the witness told the court that the land in dispute in the case his family lost to Fadiwin Family was the land which was sold to the Plaintiff.

On res judicata, that is in regard to the two cases, I had earlier listed as being relied upon for estoppel by the Defendant, the learned trial Judge said he found it to be the true position when he visited the locus that Fadiwin Family appeared to have attempted to claim more than the award given them by the Doherty’s, J. decision and the Judge in that case was right in holding that the matter was res judicata in that case. But the learned trial Judge went on and asked himself a pertinent question. He asked-

“Am I therefore to accept counsel’s submission that on the basis of Ex. M and M1 in the present case, the principle of res judicata applies having regard to the fact that the present plaintiff was never made a party to the action and the land in dispute before me is not exactly the same as the land in dispute before Doherty,