Madam Muibat Atinuke Olude V. MR. S. A. Adeeso (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment)

In his Further Amended Statement of Claim of 32 paragraphs the respondent in this appeal who was the plaintiff at the court below (High Court of Oyo State, Ibadan Judicial Division Holding in Ibadan) claimed against the appellant who also was the defendant before that court as follows:

Paragraph 32:

(i) Where upon the plaintiff claims against the defendant as follows:

(i) Declaration that the plaintiff is entitled to revoke the permission granted to the defendant through his predecessor to use the portion of the frontage of the plaintiff’s land at Alamu Village, Apata-Ganga, Ibadan in judgment of the High Court, Ibadan on 15th February, 1983 OLAYEMI v. MADAM MOBONIKE ALAMU.

(ii) Declaration that the permission granted to the defendant through his predecessor to use the portion of the frontage of the plaintiff’s land at Alamu Village, Apata-Ganga, Ibadan in the judgment of the High Court, Ibadan on 15th February, 1983 in Suit No. I/126/81 J.S.A. Olayemi v. Madam Mobonike Alamu has been forfeited.

(iii) Order of Court granting possession to the plaintiff of all the piece or parcel of land upon which the defendant has erected structures in the frontage of the plaintiff’s land (property) at Alamu village, Apata-Ganga, Ibadan as shown in the Survey Plan already filed by the plaintiff in this Honourable Court”.

IN THE ALTERNATIVE

(1) “Order of Court permitting the plaintiff to remove all the structure erected by the defendant in the frontage of the plaintiff’s land (property) at Alamu village, Apata-Ganga Ibadan as shown in the survey plan, already filed in this Honourable Court.

(2) Perpetual Injunction restraining the defendant, his agents, servant and or privies from further trespass on any portion of the plaintiff’s land described above”.

In order to establish the foregoing claims, the respondent gave evidence and called four witnesses. The appellant did not give evidence but called 3 witnesses in his defence.

In summary the fact of the respondent’s case before the lower court is that by virtue of a deed of lease by an indenture dated 22nd day of January, 1955 and registered as No. 63 in Volume 87 of the Land’s Registry at Ibadan. The said indenture was created by Akinola Alamu of Oke-Foko, Ibadan a leasor and one George Norman Herrington an expatriate who was an Agriculture Officer employed by the government of the then Western Region of Nigeria and working at the Moor Plantation Ibadan.

The term created by the lease was for seventy five (75) years at a rent of fifteen pounds per annum. The said contract of lease was with the consent of the Olubadan and his Chiefs and equally approved by the Minister for Land, Western Region.

When the expatriate was leaving for his home country, a deed of assignment for the residue of the 75 years lease was created in favour of James Solomon Adegoroye Olayemi dated 20th July, 1971, and registered as No. 1 at page 1 in Volume 1298 of the Land Registry, Ibadan for a term of about forty nine more years to run. James Solomon Adegoroye Olayemi upon appeal by Akinola Alamu surrendered the residue of the said term of years to the said Akinola Alamu vide a deed of surrender dated 3rd day of January, 1973 and registered as No. 29 at page 29 in volume 1393 of the Land Registry Ibadan. The land comprised 3.374 Acres or 1.35 Hectares.