Chief Olayemi Abolarin & Ors V. Dr. Johnson Adewumi & Ors (2016)

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 High Court of Kwara State, presided over by M. Abdulgafar, J in Suit No: KWS/OM/11/2009. The appellants in a representative capacity for themselves and the land owners’ families of Inishan were the claimants in the lower Court, who claimed as follows:

“A declaration that the defendants trespassed on their family land, claimed general damages for trespass, damages for trees and valuable shrubs cut down along survey lines and a perpetual injunction against the defendants, their agents and privies from further trespassing on the land. The original statement of claim was further amended by order of Court on 24-3-2010 and is shown on page 170 of record of proceeding. Judgment was entered for the defendants on 28th June, 2013.”

The background facts are that the appellants claimed to own the Akoro land which was described in the further amended statement of claim, page 170 of the records of Appeal. The Appellants claimed possession from time immemorial, pleaded facts of ownership and control, and gave evidence in support. The

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appellants called four witnesses (PW1-PW4) in proof of their case, PW1 and PW2 testified that they were boundary neighbours to the Inishan Land owners and not with Oko. The lower Court disbelieved these witnesses because they were not specific as to which of the Inishan families they shared a common boundary with, See pages 178, 180, 172 and 194 for the statement on oath of PW1-PW4 and their cross examination at pages 266, 267, 268 and 269 respectively.

The Respondents also called four out of their six listed witnesses. The learned Senior Counsel to the Respondents and the learned trial judge were said to have considered and reviewed the unadopted evidence of one Joseph Fakayode Jolayemi instead of the evidence of Chief Dokun Jolayemi (DW2) (same person as David Dokun Jolayemi), page 219, also, pages 234 lines 3-8, 206, lines 35-37.

It was alleged that the Respondents as defendants in the lower Court did not challenge the evidence of ownership and control adduced by the appellants. Further, that no neighbour of the four witnesses called by the Respondents testified on their behalf.

The Respondents made out that Inishan families (the

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claimants) do not have an exclusive control over Akoro land, and that no ward has such exclusive control or ownership.

It was alleged that the Respondents, after becoming aware of the pendency of the suit and after becoming aware of a motion seeking to restrain them, processed and obtained an Irepodun L.G.A. Right of Occupancy in respect of the land in dispute.

Further, that the trial Court did not pronounce on the third issue as claimed and Submission made in its support.

From the five (5) grounds of appeal, four (4) issues were formulated for determination of the appeal. They are as follows: