Abimbola V Abatan (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Ibadan Division, which had on the 30th day of June, 1992 dismissed the appeal by the plaintiff from the decision of Ajileye, J. sitting at Ibadan in the High Court of Justice of Oyo State.

The plaintiff for himself and on behalf of the Abimbola family of Gbenla, Ibadan had instituted an action against the defendant for himself and on behalf of the Abatan family claiming as follows :-

“I. A declaration that the defendant as a Customary Tenant has forfeited on grounds of misconduct his right to occupy all that piece or parcel of land situate, lying and being at Abimbola’ s Compound, Gbenla area, Ibadan and more particularly described in a plan to be later filed in court.

2. Recovery of possession of the said land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. The plaintiff’s case as pleaded and testified to is that the land in dispute is part of a much larger portion of land first settled upon from time immemorial by one Abimbola, now deceased, the ancestor of the plaintiff. The land was granted to the said Abimbola by Oderinlo and the area thus granted is known as Abimbola compound. The defendant, who was in no way related to the Abimbola family, got into the land in dispute as a result of the marriage between Odeyale, Abimbola’s relation to the defendant’s junior sister, Ajayi. Thereafter, the Abimbola family at the request of Odeyale made a grant of the land in dispute to Abatan, his wife’s brother.

By paragraphs 11 and 12 of the statement of claim, the plaintiff averred as follows:

“11. Ajayi asked Odeyale to beg Abimbola to grant her senior brother, Abatan land as a customary tenant.

12. The land requested for was given to Abatan with the permission of the Abimbola family.”

Under cross-examination, however, the plaintiff testified thus:-

“The defendant built one house on the land in dispute. Other members of his family built 4 more houses. Neither the defendant nor the other members of his family pay tributes to me or my family on the land. The land to the defendant was an out and out grant.”

The plaintiff stated that the defendant had consistently challenged the title of his family to the land in dispute and claimed to be the original owner there of hence this action.

The defendant, on the other hand, claimed ownership of the land in dispute. His case was that the land in dispute formed part of a large track of land granted to the ancestor of his family, Durojaiye by Ogunmola about one hundred years ago. He testified that his said ancestor, Durojaiye, immigrated from Orile-Owu to Ibadan and settled at Oke Mapo. It was following a fire disaster at Oke Mapa that the place was abandoned and Ogunmola brought Durojaiye to the land in dispute and granted the same to him. Durojaiye family has since been exercising maximum acts of ownership over the said land in dispute known as and called Abatan compound. Members of the defendant’s family also erected several residential houses on the land. He denied that there was anyone called Ajayi in their family, who at any time married Odeyale as alleged by the plaintiff. Abatan was one of the great grand children of the said Durojaiye.

At the conclusion of hearing, the learned trial Judge, Ajileye, J. after a careful review of the evidence on the 11th day of December, 1984 found for the defendant and dismissed the plaintiffs claims. This, he did on the grounds of:

(i) Inconclusiveness of the traditional evidence of both parties at the trial in respect of their claim of title to the land in dispute.

(ii) Failure by the plaintiff to prove that the defendant’s ancestors were the customary tenants of the plaintiff and