Oba Yusuf Omokanye & Anor. V. Saka Mogaji Adini & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Justice Kwara State holden at Ilorin Division wherein per S.D. Kawu, Ag Chief Judge; granted the Claims of the Claimants for Declaration of Customary Right of Occupancy and perpetual injunction against the Defendants and dismissed the Defendants/Counter-claimants’ Counter-claim, Dissatisfied with the Judgment the Defendants/Counter-claimants have now appealed to this Honourable Court on three Original Grounds as contained in pages 207- 209 of the Original Record of Appeal.

By a motion on Notice dated and filed on the 12th day of October, 2010, the Appellants through their learned counsel Chief P.A.O. Olorunisola, SAN, sought for the leave of this Honourable Court to file Additional Grounds of Appeal Numbered 4, 5, 6 and 7 as can be found in page 210 of the Additional Record of Appeal.

Upon transmission of the Records hereto, parties exchanged their respective Briefs of Argument. In the Brief settled by Chief P. A. Olorunnisola, SAN, the learned Counsel to the Appellants; three issues were formulated for determination couched and reproduced here under as follows:-

“ISSUE NO. 1: Whether the fact that damage to the claimant’s farm was found to be caused by the act of the DW1 and DW2 is sufficient evidence of ownership of the land claimed by the claimant? -Grounds 3 & 4.

ISSUE NO. 2: Whether the area of land claimed by the Claimant is clearly and sufficiently described as required by law and precedents?- Grounds 5 & 7.

ISSUE NO. 3: Whether there is sufficient evidence before the Court to justify giving judgment to the Claimant? – Ground 1 & 6”

As for the Respondent, Iwalola Bello (Mrs.) who settled his Brief, raised a Preliminary Objection to the Appeal on two Grounds viz:-

“1. That the Appeal is incompetent having not been filed within the time allowed by law; and

“2. That there is no appeal upon which this Court can exercise its appellate jurisdiction to determine the grounds of appeal.”

Alternatively, the learned counsel for the Respondent distilled and adopted the three issues as formulated by the learned counsel Appellants which are hereunder also reproduced for purposes of emphasis as follows:-

“ISSUE NO. 1: Whether the fact that damage to the Claimants farm was found to be caused by the act of the DW1 and DW2 is sufficient evidence of ownership of the land claimed by the claimant? Grounds 3 & 4.

ISSUE NO. 2: Whether the area of land claimed by the Claimant is clearly and sufficiently described as required by law and precedents? Grounds 5 & 7.

ISSUE NO. 3: Whether there is sufficient evidence before the Court to justify giving judgment to the Claimant? Ground 1 & 6.”