Alhaji Ayinde Awure & Anor V. Alhaji Adisa Iledu (Yusuf Adisa) (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Ilorin, Kwara State delivered by the Honourable Justice M. A. Folayan on the 13th day of June, 2005.

The appellants had claimed the following reliefs at the lower court by writ of summons filed on 7/2/2003:

“1. Declaration of title over the piece or parcel of land on which defendant is encroaching upon.

2. Perpetual injunction restraining the defendant by himself, his agents, servants, successors, privies or workers from further encroaching or trespassing on the plaintiff’s family land at Masudo Village, University of Ilorin Road”

The appellants pleaded the amended statement of claim filed on 4/3/2003 while the respondent’s statement of defence and counterclaim as well as amended statement of defence and counter-claim were filed on 9/5/2003 and 21/2/2004 respectively.

The appellants filed a reply to the amended statement of defence on 23/9/2004.

The 1st and 2nd appellants gave evidence and called a surveyor who surveyed the land in dispute as their witness. The respondent gave evidence and called five witnesses.

There is no dispute according to the evidence on both sides that the land belonged to the Masudo family. There is also no contention about the identity of the land in dispute. It is the evidence of PW 1 that sometimes in 2002 they decided to visit their land and they instructed their lawyer to cause a notice board to be put on the land that anybody having property on the land should come and see them. On a second visit, they met the respondent on the land and told him if he had bought the land from any member of their family he should submit all his title documents to their lawyer but up to the time of giving evidence the respondent has not submitted any title document of the land of Masudo family on which he had encroached or trespassed.

The 2nd appellant admitted that he and 1st appellant had been living in Lagos and 3rd plaintiff a transporter has been living in Ilorin but denied that the 3rd plaintiff had been representing the interest of the family on the land since 1976. He would not know when 1st appellant and 3rd plaintiff started representing the family interest on the land as he only knew he joined them as head of his own unit in 2002. That all the land sold from time immemorial have always been signed by the three units of the family.

The respondent filed a defence and counter-claim which was later amended wherein he admitted appellants’ family to be the customary owners of the land in dispute but denied that he encroached on the said land. He alleged that he bought the land from the 3rd plaintiff who represented the family. The land agreement was tendered as exh. D1 and the vendor’s affidavit was tendered as exh. D2 through the respondent’s son DW3. Respondent also pleaded the purchase receipt. He further claimed that after the purchase, members of the appellants’ family demanded for more money for the land already transferred to him and he paid the additional sum of N30,000.00 due to pressure put to bear on him. The respondents line of defence is that he bought the land from one of the principal members of the Masudo family – the 3rd plaintiff. According to him, there was no trouble again until 2002 when the appellants came back for more money, which he refused to pay. He claimed he had put the land into positive use for years.

He also counter-claimed against the appellants in respect of a land immediately after the main gate (from University main gate) by the right immediately after the Biological Garden measuring 31.295 hectres. He alleged that the land belongs to Sikiti family of Tanke Oke Ode, Ilorin who share boundary with the appellants’ family.

After the appellants had closed their case and the respondent had called two witnesses, the respondent on 31st May, 2004 brought a motion on notice to amend his statement of defence and counter-claim which the Appellants opposed on the grounds that it was made malafide and that the appellants will not have any opportunity to re-open their case to rebut the new issues been raised in the amended statement of defence. The court ruled against the appellants’ objection and allowed the amendment sought by the defence.

The appellants on 22nd September, 2004 moved a motion dated 2/9/2004 and filed on 16/9/2004 praying the court to allow them file a consequential reply to the amended statement of defence filed by the respondent. Though respondent’s counsel at the initial stage raised objection to this but he later withdrew his objection and the court granted the said application.

After the respondent had closed his case, the appellants’ counsel filed a motion to call additional witnesses which was moved on 14th January, 2005, and opposed by the respondent. The court in its ruling of 31st January, 2005 refused the application.