Alhaji Rasaq Adisa Oyebanji V. Alhaji Salawu Akinloye Akinleye (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

The appeal is against the judgment of the Oyo State High Court, Ibadan, delivered by Hon. Justice M. A. Owoade on 8th October, 2003.

In the lower court the Plaintiff, now Appellant claimed against the defendant now Respondent as follows:-

“(a) Declaration that the Plaintiff is the person entitled to statutory/customary right of occupancy to all that four plots and parcel of land shown on the Layout Plan of Kelani Akanmu and lying being at Arinkinkin Village near Olodo along Ibadan/Iwo Road Ibadan to be clearly demarcated on a plan to be filed hereafter.

(b) N5,000:00 (Five Thousand Naira) general damages for trespass being presently committed on the said land.

(c) Perpetual Injunction restraining the defendant; by himself, his servants, agents and privies from committing any further trespass on the said land.”

The learned trial judge dismissed the plaintiff’s claim in its entirety as prayed in paragraph 18(a), (b) and (c) of his statement of claim.

Dissatisfied with the judgment the plaintiff filed his Notice of Appeal dated 10/11/03 on 11/11/03 in which there were four grounds of appeal.

On the Appellant’s part, the background facts are that the land in dispute formed part of Fajokun Family land, which devolved on his children after his death. The land of Fajokun was later partitioned amongst his children after his death namely Dada Section and Akintola Section. The Appellant’s contention is that the land in dispute formed part of Dada’s Section, which was sold to Alhaji Kelani Akanmu who sold the portion now in dispute to the plaintiff.

On the other hand the defendant’s case before the lower court countered that of the plaintiff in claiming that the disputed land originally belonged to “Fajokun” which on the death of Fajokun devolved on his children. The defendant also agreed that Fajokun land was partitioned between the two branches of the family, that is Dada and Akintola which Yesufu Olaniyan of Akintola’s Section sold to the Defendant shown in Exhibit ‘P1’ witnessed by both Dada and Akintola’s Section.

It was the then Defendant’s contention that the land in dispute was part of the portion partitioned to Akintola’s Section. Part of Akintola’s Section was said to have been “granted” not “sold” to Kelani Akanmu, the son of Abegbe a member of Fajokun Family and that no payment of purchase price or sale agreement was involved.

From the Appellant’s four (4) Grounds of Appeal, two (2) issues were formulated for determination by this court.

They are:-

“1. Whether the learned trial Judge was right in his approach to the determination of the case based on the case made out by the parties on record. (Grounds 1, 2 and 3)