Alhaji Rasaki Adisa Oyebanji & Anor V. Alhaja Kudirat Akanbi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment)

The Appellants were the defendants in the lower court, the then 2nd Defendant having died during the pendency of the suit. The Respondent was the plaintiff and her claim before the lower court in her Further Amended Statement of Claim (page 34 of the printed records) is as follows:-

“(1) Declaration that the plaintiff is the person entitled to the grant of Statutory Right of Occupancy over the piece or parcel of land situate, lying and being Plot 2, Chief Olosunde Oladejo Awotunde Layout, Akobo Basorun Alegongo Area, Ibadan which is particularly described and delineated on Plan No.JAA/OY/573/88 dated 27/4/88 prepared by John Aigbe, Licensed Surveyor and Plan No.RADS/OY/DS07A/94 of 1/7/94 prepared by A. A. Adeyemi Licensed Surveyor.

(2) The sum of N1,000,000.00 being special and general agents and privies on the plaintiff’s land in 1992 which trespass is still continuing.

(3) An order nullifying and deleting from the register of deeds at Ministry of Lands and Housing, Ibadan the Certificate of Occupancy purportedly issued and registered in favour of the 3rd defendants (sic) by the Government of Oyo State over the plaintiffs land.

(4) Perpetual Injunction restraining the defendant by themselves, their agents, servants, privies whosesoever and howsoever called from remaining on, further remaining on or committing further acts of trespass on the said land.”

The background facts are that the Respondent as plaintiff in her further Amended Statement of Claim (paragraphs 5-8) pleaded that Aiku originally settled and farmed upon a vast area of land situate, lying and being at Alegongo Area, Off Olorunda Abaa Road, Ibadan and was survived by her children. The Descendants of Aiku family sold a large portion of the land settled by Aiku to Chief Oladejo Awotunde of Ode Aje Alase Ibadan and it was alleged that a land sale agreement was executed (Paragraph 8). Chief Awotunde took possession and made a layout into plots shown in Survey Plan No. RADS/OY/0507A/94, and sold some of the plots to various people including the Respondent.

On the other hand, the Appellants as defendants denied in their paragraph 1 of their Amended Statement of Defence the averments contained in paragraphs 5 – 10 of the Further Amended Statement of Claim, that the land in dispute ever formed part of Aiku family land but alleged that it formed part of Olatunbosun Family land, which family sold the land to the 1st defendant (Appellant) under Native Law and Custom, the 1st defendant (Appellant) in turn sold the land in dispute to the 3rd defendant now 2nd Appellant who later obtained a Certificate of Occupancy and later built on the land.

The Appellants contended that the Respondent did not call any member of Aiku Family to testify that the land in dispute was part of Aiku Family land and or that Aiku family sold any part of the land to Awotunde or the Respondent, while the Appellants called members of Aiku Family and Olatunbosun Family to testify that the land was originally part of Olatunbosun family land and not part of Aiku family land.

At the close of hearing the learned trial judge M. L Abimbola, 1 of the Ibadan Judicial Division of Oyo State High Court on 25th day of April, 2007 gave judgment in favour of the plaintiff now Respondent.

Dissatisfied with the judgment, the Appellants filed their Notice of Appeal dated 24/7/07 (pages 96-99 of the printed records) containing seven (7) grounds of Appeal from which three (3) issues were formulated for determination by this court. The issues are as follows:-

“(1) Whether the learned trial judge approached the consideration of the case correctly when he said that both parties and counsel agreed that Aiku family sold any land to Awotunde.

(Grounds 1, 3 and 6).

(2) Whether the learned trial judge was justified in rejecting the evidence of DW1 and DW4 and relying on inadmissible evidence in his consideration of whether the land in dispute was part of Aiku family land or Olatunbosun family land.