Mrs. Odedele & Anor V. Alhaja Falilat Akanke (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Akinteye J, Of the High Court of Justice Ibadan delivered on 27th April, 2007. The respondent who was the plaintiff at the lower court claimed against the defendants now appellants jointly and severally as per her statement of claim dated 10.12.2002 and filed 12.12.2002 as follows:-

(i) The sum of N2, 200,000.00 (Two million, Two hundred thousand Naira) against the defendants jointly and severally being special and general damages for trespass committed and still being committed on the plaintiff’s land situate, lying and being at Ogbagba village, off Olorunda Road, Akobo Area, Ibadan.

PARTICULARS

(a) Special Damages – N1, 800.000

(b) General Damages – N400.0000

(ii) A perpetual injunction restraining the defendants by themselves, their agents, servants and or privies or otherwise howsoever from committing further acts of trespass on the plaintiff’s said land.

The case for the respondent is that she bought the plot of land in dispute which formed part of the two acre land Alhaji Oyebanji (PW1) had earlier bought from the 2nd Defendant and other members of 2nd Defendant’s family. Respondent had been in possession of the land for 28 years as at the institution of the suit until sometimes in the year 2002 when the 2nd Defendant purportedly sold the land in dispute to the 1st Defendant. As at this time, the respondent has on the land in dispute a developing structure of 4 flats of 3 bedrooms each which was at lintel level, Respondent alleged she was in possession until the 1st appellant in 2002 came onto the land to disturb her possession by building another structure different from the one she had hitherto begun on the land.

The case for the appellant on the other hand is that the land in dispute which formed part of a larger land belonged to the 2nd appellant’s family originally and that their family ownership was further confirmed by the High Court judgment in suit No 1/287/06 tendered as Exhibit C. Appellant’s family sold some portion of land measuring two acres, to the respondent’s alleged predecessor-in-title, the PW1 but the land so sold to him was at Eleni Osoba village, along Olorunda-Abaa Road, Ibadan. That the 2nd Appellant’s family does not extend to Ogbagba village, and the land sold to PW1 does not extend to the land in dispute. The land in dispute was one of the plots of land from which trespassers were dislodged.

After pleadings were filed, amended and exchanged between parties, trial commenced, Plaintiff testified and called 3 more witnesses while the Defendants testified and called 2 witnesses for their defence. At the close of defence case written addresses were filed, exchanged and subsequently adopted by respective counsel. The learned trial judge Akinteye J. in a considered judgment delivered on 27th April, 2007 granted the reliefs claimed by the respondent.

Appellants were not satisfied with the judgment and so they filed their Notice of Appeal dated 7.01.10 containing six (6) grounds of appeal.

Briefs of argument were filed, exchanged and adopted by respective counsel.

In the appellants’ brief of argument filed on 12/11/10, they distilled sole issue for determination in this appeal to wit:

“Whether having regard to admissible evidence before the court, the identity of the land in dispute was sufficiently established to justify the grant of the respondent’s claim by the learned trial judge”.