Chief Adeoye Adio Fagunwa & Anor. V. Chief Nathaniel Adibi & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The appellants as plaintiffs in the High Court claimed for declaration of title to land, damages for trespass and injunction restraining the defendants, their servants, agents, privies and workmen from committing further acts of trespass on the land in dispute. Both parties relied on traditional history.

The case of the appellants can be briefly stated. The founder of Yaaku chieftaincy family was Larinso who came from Ile-Igbon Saaki near Old Oyo. Larinso farmed on the land. Upon his death, the farm devolved on his children. The successors to Larinso were Olusoji, Ojo Areomi, Akinjebo, Mafoye, Ajao, Ige, Taiwo and 1st plaintiff, Chief Adeoye Adio Fagunwa.

The respondents, as defendants told a different story. Osi Agboro, Akinyo, Ajadiagbon, Agbooro, Isapa, Alajagbon, Eleuji, Ajoo and Yaaku Idi-Ose families are all members of Yaaku Chieftaincy family of Ogbomoso. The ancestors of the 1st defendant, Chief Nathaniel Agboola Adibi, had to move in groups to Ogbomoso during the Fulani wars at different times. Olukunle founded Osi Agoro family at Ogbomoso, Fasunle founded Akinyo family, Ajo founded Ajo family, While Olayale founded Agboro, Bayewuwon founded Isapa family. Oladokun founded Elujuji family, Ajadiagbon founded Ajadiagbon family. Kolajo founded Yaaku Idi-Ose family. Olatunde and Fagbemi Adibi are children of Oyelakun Fagunwa who begat the 1st defendant. Olatunde begat the 3rd defendant.

It is also the case of the respondents that the area claimed by the appellants at Atta and Igbo Sai areas, Ogbomoso forms part of their family land as well as the families of Agbooro and Akinyo and that the said families have for many years been exercising rights of possession and ownership over the land in dispute.

Both parties led evidence at the trial. The learned trial Judge gave judgment to the plaintiffs/appellants in terms of their reliefs.

Dissatisfied, the defendants as appellants went to the Court of Appeal. That court allowed the appeal in part. It set aside the judgment of the High Court.

Dissatisfied, the appellants have come to this court. As usual, briefs were filed and exchanged. The appellants formulated the following issues for determination:

“(i) Whether the Court of Appeal in the exercise of its appellate jurisdiction can merely set aside a judgment without making further order on the case.

(ii) Whether exhibit C was properly held by the lower court to be defendants’ family land and if the court was right whether that alone would justify allowing grounds 6 and 15.

(iii) Whether the lower court was right in its holding that the trial court did not give proper consideration to the case of the parties and wrongly put the onus of proof on the defendants.

(iv) Whether the consideration of the complaints of the respondents in relation to the claim for declaration of title to a statutory right of occupancy would justify setting aside the judgment of the trial court without considering whether the other reliefs were on the printed records properly granted by the trial court.

(v) Whether the lower court was right in allowing ground of appeal it did not consider or consider properly.”

The respondents formulated two issues for determination: