Makanjuola Olatunji V. Alhaji Muibi Adisa (1995)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

By a writ of summons issued on 31st May, 1979, the plaintiff herein appellant, claimed from the defendant, herein respondent in the Oyo State High Court holden in Ibadan (per Babalakin, J. as he then was) as follows:-

“1. Declaration to a Statutory Right of Occupancy in respect of land in dispute edged Red on Plan No. OK 65 drawn and signed by K.O. Ishola Licensed Surveyor on 10/8/72, and counter signed by Surveyor General on 25/9/72, attached to Deed of Conveyance dated 29th day of November, 1972, and Registered as No. 11 at page 11 in volume 1426 of the Lands Registry in the Office in Ibadan.

2. N500 (Five Hundred Naira), for general damages for trespass committed and still being committed by the defendant or his servants and Agents on the plaintiff’s parcel of land.
3. Injunction to restrain the defendant, his servants, or privies or any one claiming through him from further acts of trespass on the said parcel of land. ”

Pleadings having been ordered, filed and exchanged, the case went to trial.

The learned trial Judge in a considered judgment granted the plaintiff all his claims on the 18th of September 1981. The defendant being dissatisfied appealed to the court of Appeal sitting in Ibadan (herein after referred to as the court below).

A brief resume of the facts of the case may at this juncture be stated to afford an insight into it as follows:-

For the plaintiff, it is that the land in dispute which is shown verged ‘red’ on Plan No: OK 65 made by K.O. Ishola Esq. Licensed Surveyor dated 10th May, 1972 and which is situated at Oredegbe Layout near Ibadan Grammar School, Molete, Ibadan formed part of a large parcel of land originally belonging to Aduloju family of Aduloju’s Compound, Idi Arere, Ibadan by settlement many years ago. The said Aduloju Family, under and by virtue of a Deed of Conveyance dated 12th October, 1960 (Exhibit ‘B’) sold portions of the said land to one Hammed Adetunji Lanihun and one Popoola Okunola. The said Hammed Adetunji Lanihun and Popoola Okunola laid out the land into plot, and sold a portion thereof to Kolapo Olawuyi Ishola by virtue of a Deed of Conveyance dated 20th November, 1972 (Exhibit ‘A’). By another conveyance dated 10th June, 1973 (Exhibit ‘C’) Kolapo Olawuyi Ishola sold the land in dispute to S.L.A. Latunji deceased. Before Latunji’s death, he sold the land in dispute to the plaintiff by a conveyance dated 21st July 1975 (Exhibit ‘D’) and the plaintiff went into possession and was regularly weeding thesame. In May, 1979, the plaintiff went on the land with his workers to commence building operations but was repulsed by the defendant. Thus the genesis of the case herein.`11

For the defendant it was a strong denial that the land in dispute originally belonged to Aduloju family of that plaintiff went into possession after purchasing same and that he disturbed the plaintiff on the land or at all.

The defendant then claimed that the land in dispute formed part of a portion of land which originally belonged to his ancestor, the Faniyi Family who settled thereon over 100 years ago. The land settled upon by Faniyi, he explained, is bounded by the Family lands of Ashiru Onipako, Gbadamosi Adefunke, Mrs. Ogunlesi and Chief E.A. Adeyemo. The Aduloju family land, he asserted, does not extend to the defendant’s family land and the Aduloju family as such had no right to sell land belonging to the defendant’s family that the conveyance referred to in the statement of claim is null and void; that defendant’s family which is known as Odukunle family, had been in continuous and undisturbed possession of their family land until one Lanihun, a predecessor in title of the plaintiff, attempted to survey the land but that he was driven away. He further demonstrated how plots 33 and 35 were sold to him by his family under native law and custom and that he obtained a receipt dated 23rd March, 1979 as evidence of the sale. Since purchase, he had caused the land to be surveyed and that he was presently constructing a building thereon based on approved building plan. He finally maintained that it was the plaintiff that destroyed his building foundation and wall fence on the land in dispute rather than he chasing plaintiff therefrom.

At the hearing of the appeal in the court below, the defendant abandoned all the original grounds contained in the Notice of Appeal while his application to file and argue additional grounds of appeal was allowed. The court below in a unanimous decision of the Justices reversed the decision, thus dismissing the plaintiff’s case on 30th January, 1986.

The appeal herein, premised on a Notice of Appeal dated 31st January, 1990 and containing three grounds of appeal which later by leave of court and complemented by six additional grounds, is against that decision. Parties subsequently filed and exchanged briefs of argument; they each later amended them, in accordance with the rules of court.

The plaintiff formulated six issues for determination whereas the defendant submitted three as arising for determination. By and large, however, I take the firm view that the crux of the plaintiff’s complaint being founded on the examination made and decision arrived at in respect of Exhibit ‘B’ – there being in my view one and only one issue that disposes of the appeal herein to wit: Whether on the pleadings as settled, particularly with reference to paragraph 9 of the statement of defence, it was open to the Court of Appeal to determine the appeal by examining the validity of Exhibit ‘B’ per se as opposed to whether Exhibit ‘B’ covers the land in dispute. I intend to consider same as follows:-

At the hearing of the appeal on 9th November, 1994 the learned counsel for plaintiff abandoned ground 2 of the original grounds as well as additional grounds 2 to 7 respectively.

I will commence the consideration of this issue (the lone issue) which in my view, overlaps the three formulated by the defendant, by setting out firstly paragraphs 6, 7, 8 and 9 of the plaintiff’s statement of defence thus: