Alhaji Chief Ibrahim Adediji V. Mr. A. A. Kolade & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

By a Writ of Summons dated and filed on the 23rd day October, 2002, in the High Court of Justice Kwara State, in the Offa Judicial Division, Holden at Offa; the Plaintiffs (now Respondents) on behalf of themselves and Oluawo “Family of Ijagbo claimed against the Appellant (the 1st Defendant in the Court below) for the following Reliefs:

i. Declaration that the plaintiffs are entitled to a Right of Occupancy over that parcel of land, lying being and situate at Oluawo family land, Offa-Ajase Ipo Road, Ijagbo, Oyun Local Government Area.

ii. Declaration that the Customary Right of Occupancy No. OYLG/LUD/CR of 0/320 granted to the Defendant is null and void.

iii. AN Order setting aside the said Customary Right of Occupancy and ordering a rectification of the register.

iv. N100,000.00 (One Thousand Naira) damages for trespass committed by the Defendant on the said parcel of Land.

v. Perpetual injunction restraining the Defendant whether by himself, servants, agents and/or privies from committing further acts of trespass on the said parcel of Land.

By an Amended Writ of Summons dated the 11th of February, 2003, the Respondents joined the Oyun Local Government as the 2nd Defendant and thereafter filed a Statement of Claim dated 3rd March, 2003. The 1st Defendant (the Appellant herein) filed his Statement of Defence dated the 8th of May, 2003 the same day.

Pursuant to an order of the Trial Court, the Respondents filed an Amended statement of claim on the 28th of January, 2005 in consequence upon which the Appellant filed a Reply to the Amended Statement of Claim. Thereafter, the court proceeded into hearing of the matter whereat the Respondents called four (4) witnesses while the Appellant called five (5) witnesses with himself inclusive. The Court after hearing all parties gave judgment for the Respondents on the 23rd of October, 2007. Pages 190-207 of the Records refer.

The Appellant, being dissatisfied with Decision of the trial Court, filed a Notice of Appeal in this Honourable Court on the 12th day of December, 2007, with three Original Grounds. With the leave of this Honourable Court granted on the 20th January, 2009, the Appellant further filed five (5) Additional Grounds of Appeal. The Record of Appeal was deemed to be properly complied and transmitted to this Honourable Court on the 20th of January, 2009.

Upon receipt of the Record of Proceedings from the lower Court, and consistent with the Rules of this Honourable Court, the following two Issues were formulated for determination in the Brief settled by R.A. Rabana, SAN; on behalf of the Appellants couched as follows:-

i. WHETHER THE PLAINTIFFS/RESPONDENTS SHOWED BY CREDIBLE EVIDENCE THAT THE DEFENDANT/APPELLANT’S GRANTOR WAS A CUSTOMARY TENANT.

ii. WHETHER THE EVIDENCE OF THE PW1, PW2 AND PW3 ARE CREDIBLE TO SUPPORT THE PLAINTIFF’S CLAIM.

It would be recalled that the learned counsel for the Respondents by a Notice dated 10th of February, 2010 and filed on the 16th of February, 2010; raised a Preliminary objection to the competence of the Grounds of Appeal pursuant to Order 10, Rule 1 of the Court of Appeal Rules, 2007. We shall come to the Preliminary objection before resolving the issues but suffice it to state that in the alternative, the Respondents in the Brief settled by Sikuru O. Adewoye Esq.; distilled a solitary issue for determination couched in the following terms: