Adetutu Olanibi & Ors V. Cabe Ohara & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

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The action, which is the subject matter of this appeal, originated from the Iwara Grade C Customary Court of Osun State, wherein the (deceased) respondent as original plaintiff claimed as follows against the appellants –

“The plaintiffs claim against the defendants jointly and severally is for declaration of title to a piece of farmland, situate, lying and being at Igbo Lomofe Farm via Iwikun in Atakumosa Local Government Area. The plaintiff is also claiming the sum of N200.00 from the 3rd defendant being general damages for trespass into the aid farmland and thereby damages (sic) some cocoa and kola trees on the said farmland. The plaintiff is also seeking for an injunction order restraining the defendants, their agents, wives or servants from further entering into the said farmland pending the determination of the case before the court. The said farmland is bounded as follows-

On the 1st side by Degunduro’s farmland

On the 2nd side by Awikun Chieftaincy farmland

On the 3rd side by Iwara people’s farmland

On the 4th side by Jojo’s farmland”.

This appeal centers on the issue of res Judicata or issue estoppel and it will be necessary to set out the background facts of the case in some detail. It has been the appellants’ contention from day one that there was litigation over the land in dispute between the appellants, Awikun family and the Iwikun Community of which the deceased respondent was a member, and who they argued gave evidence in the earlier suit No. 35/65 between Chief Geolge Adekile, representing the Aribagbeyawo family, Iwukun and Jacob Ademuyiwa representing Iwikun Community. The Judgment in the said suit No. 35/65 and the judgments in suit No. A2/67 & HOS/28A/67, which were the decisions of the appellate court in suit No. 35/65 were in evidence, and therein the High Court sitting as appellate court held as follows –

“The members of the Iwikun Community who farm on the land in dispute must realize that the owners of the land are the descendants of Aribagbeyawo Ekemode Opakun and lalubi” (Italics mine)

At the Iwara Grade C Customary Court, three witnesses testified for the plaintiffs, including the deceased respondent. During cross-examination by the 1st appellant herein, who was 1st defendant, she replied as follows –

B “No I did not witness any case before Ogunseitan. When the Iwikun Community and you were fighting on this farmland. Yes Ogunseitan came to me to ask from me whether my father was paying and (sic) isakole to anybody but I explained that nobody my father or my grandfather was paying any isakole for out of this people (sic) because my father is the owner of this land in dispute. The boundary of this farmland in dispute was marked with Peregun trees and water. Nobody sued me on this farmland in dispute to court”.

The 3 appellants as defendants and 1 other witness testified at the Customary Court. The Customary Court thought it fit to visit the locus in quo, and thereafter delivered judgment on the 19th April 1988, wherein it held –

“This court has carefully gone through the evidence of E both parties and their witnesses and following are observed –

(1) The boundary of the current case instituted by the plaintiff is quite different from the one instituted by the defendants against the Iwikun Community.