Alhaji Asifat Akanbi V. Gbemisoye Oyewale & Anor. (2008)

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CHIDI NWAOMA UWA, J.C.A.

The Plaintiff in the lower court and Appellant, Alhaji Buhari Akande after his demise was substituted, following the leave of court sought and granted Alhaji Asifat Akanbi, now the appellant. The reliefs sought by the Appellant as Plaintiff for himself and on behalf of the Baale Ibapon Family, Ogbomoso as shown in paragraph 27(a), (b) and (c) of the Amended Statement of Claim, are as follows:

“(a) A declaration that the Defendants are customary tenants of the Plaintiff’s family is (sic) Baale Ibapon Family in respect of the farm/and situate, lying and being at Ibapon via Ogbomoso.

(b) A forfeiture of the defendants’ right to occupy and use the said piece or parcel of land in dispute for on the ground of denial of the rights of the Plaintiff and the refusal by the Defendants to pay tribute to the Plaintiff’s family, as their over lord despite repeated demands.

(c) The recovery of possession of the said farm land by the Plaintiff from the Defendants and arrears of customary tribute from the Defendants up to the day of judgment.”

In response the Respondents as defendants filed their statement of defence and counter-claim as contained in their further amended statement of defence to which the appellant filed a Reply. Evidence was called by both parties and Exhibits tendered, which included survey plans. The then plaintiff tendered Exhibit ‘E’ which encompassed the one tendered by the respondents, Exhibit ‘F’.

The Appellant’s case is that the land shown in Exhibit ‘E’ was granted to his family absolutely for spiritual services rendered to the Oba Onpetu Asamu. While the Respondents claimed that the land in dispute which is contained in Exhibit ‘E’ and Exhibit ‘F’ was equally granted to their family by the Oba Onpetu Asamu subject to the payment of Ishakole, and that the Plaintiff’s land was granted to one Lakoso, which the defendants claimed to be the ancestors of the plaintiff/appellant.

In the judgment, the learned trial judge found that the appellant and respondent were both granted their land by Onpetu Asamu, as such that the appellant could not claim to be overlord of the Respondents, thus preferring the evidence of the respondents to that of the appellant. The learned trial judge dismissed the plaintiff/appellant’s case. No order was made in respect of the counterclaim of the respondents as no evidence was led in its support and deemed abandoned.

The appellant being dissatisfied with the decision originally filed three (3) grounds of appeal, with the leave of court flied six (6) additional grounds of appeal. The appellant formulated three (3) issues for determination, they are:

“i. Whether from the pleadings and evidence led at the trial; a plea of issue estoppels in the light of Exhibit ‘A’ ‘B’, ‘C’ and ‘D’ tendered could have sustained the plaintiff/appellant’s case at the trial.

ii. Whether the trial court was right in law when it failed to properly assess the evidence of PW6 Gabriel Oke, and PW7 OrodokunAlagbe, vis-a-vis, DW3 Ayanlude Akande testimony and treated DW3 evidence as that of the PW7 Orodokun Alagbe.

iii. Whether the trial court properly evaluated and appraised the totality of the evidence of the Plaintiff witnesses when juxtaposed with that of the Defendants witnesses at all or adequately on all the issues submitted for adjudication particularly the issue whether the plaintiff family (now appellant) are descendant of Lakoso as claimed by the Defendants and James Okewole DW2 the Onpetu Asamu Mogaji and if not what is the general effect of his evidence in the light of Exhibit ‘B’ and the conclusion reached by the learned trial judge.

The Respondents formulated two issues for determination.

“1. Whether pleadings and evidence before the trial (sic) could be used to construe Exhibit ‘A’, ‘B ‘, ‘C’ and ‘D’ to sustain a plea of issue estoppel as opposed to the contents of those documents.