Mr. Enock O. I. Ojekan V. Chief S. O. Oyewale (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Oyo State High Court sitting in Ibadan. The judgment was delivered on the 16th of July 2005. Appellants were the Defendants at the lower court. The Plaintiffs at the Court below claimed the following reliefs:-

(1) 1st Plaintiff claims against the Defendants jointly and severally;

(a) A declaration that 1st Plaintiff is the proper person entitled to the grant of Statutory/Customary Right of Occupancy in respect of a large piece or parcel of land at Alona in Ope-Agbe Area Olomi, off Olojuoro Road, Ibadan. An area verged red excluding the area verged green, purple and yellow in the survey plan number LSAT/Y168 drawn by Winfield and Associates Limited Surveyors.

(2) The 2nd Plaintiff claims against the Defendant’s jointly and severally;

(a) A declaration that the 2nd Plaintiff is the proper person entitled to the grant of Statutory/Customary Right of Occupancy in respect of a large piece or parcel of land situate, lying and being at Alona in Ope-Agbe Area Olomi, off Olojuoro Road, Ibadan. An area verged blue in the survey plan number LSAT/Y168 drawn by Winfield and Associates Limited Surveyors.

(3) That both 1st and 2nd Plaintiffs claim against the Defendants;

(a) That the Defendants, their agents, privies and or anyone who bought or claim through them i.e. the Defendants be perpetually restrained from and further acts of trespass or alienation of the land belonging to the 1st and 2nd Plaintiffs.

The Plaintiffs case on their pleadings is that their ancestor, Ope-Agbe was a warrior; he was Balogun and later became the first Baale of Ibadan in 1850. He acquired a large tract of land on which he settled some of his followers, his children, warriors, slaves and servants. After his death, his descendants have been exercising acts of ownership by farming on and selling portions to other persons like the 2nd Plaintiff. The 2nd Plaintiff was forced to re-purchase the land sold to him by the 1st Plaintiff’s family from the 1st Respondont who used the soldiers from the 2nd Mechanised Division, Nigerian Army.

While the case of the Defendants on the pleadings is that the land in dispute is their ancestor, Ogedengbe, Aboluwode, a warrior who settled on the land. After his death, his descendants from his direct children to the Defendants have been farming on the land. Ope-Agbe who hailed from Ogbomosho has no land around the Defendants family land and he is not the owner of the land in dispute. Ope-Agbe trespassed on the Respondents family land by selling two acres thereof to the 2nd Plaintiff. When the 1st Defendant discovered the trespass, he caused signboards to be erected on the land to warn people that the land belongs to his family. He also caused those found on the land to be arrested by the police. He wrote a letter to the Public Relations Officer, 2nd Mechanized Division, Nigerian Army to assist him to get rid of those who were laying claim to the land. The 2nd Plaintiff on the intervention of the army paid a total sum of #4,000:00 to the Army to re-purchase the land.

The two original Plaintiffs were dead and were substituted by the order of this court. The original Plaintiffs testified in support of their claim and called five other witnesses while the 1st Defendant testified in defence of the claim and called four other witnesses.

At the end of the trial, the learned trial Judge preferred the evidence of the Plaintiffs to the Defendants and found that the Plaintiffs claim succeed in its entirety. Dissatisfied with the judgment, Appellants appealed to this court vide notice and grounds of appeal filed on the 18th of September 2003.

In compliance with the rules of this court, Appellants filed their brief of argument on the 17th of January 2007 but deemed properly filed on 18/1/07. Respondent’s brief of argument was filed on 26/6/08.

Appellants distilled three issues for determination as follows:-