Alhaji Saibu Gbadamosi V. Abiodun Tolani (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Oyo State High Court of Justice, Ibadan Division delivered on the 24th of May, 2005 in which the trial Court dismissed all the claims of the Appellant.

Appellant sued the Respondent as endorsed on the amended statement of claim at the lower Court claiming as follows:-

(i) A declaration of a Statutory Right of Occupancy to all that parcel of land situate, lying and being at Opposite Old Niger West Company Ltd, Old Lagos Road, Challenge, Ibadan.

(ii) N100.00 damages against the Defendant/Respondent for trespass committed by the Defendants embarking on the construction of buildings on the land in dispute

(iii) An order of perpetual injunction restraining the Defendant, his agents, privies and any other person or persons who may claim through the Defendant

(iv) A declaration by the Court that the Defendants are trespassers on the aforementioned piece or parcel of land by embarking on the building construction on the said land without the consent and authority of the Plaintiff and the members of his family.

Appellant was the Plaintiff at the lower court while the Respondent was the Defendant. Appellant was dissatisfied with the judgment and filed a notice of appeal containing three grounds of appeal. By a motion filed on the 10/10/07. Appellant sought leave of this count to file six additional grounds of appeal which was granted on the 11th of February, 2008.

The brief facts of the case as presented from the record of proceedings are as follows: Kure Awojobi of Isale Osi, Ibadan; Arowolaje Ashiru Onipako, Olorisagbonna and Arowolaje jointly fought Gbanamu war, against the Egbas and Ijebus over 150 years ago. After the aforesaid war, was over, the said Kure Awojobi with the remaining four families stated above shared the land jointly acquired during the war amongst themselves on which individual families thereafter settled on their own portion.

The area given to Kure Awojobi started from Odo-Idi-Esu now Felele roundabout left and right till Agunbelewo now Adelabu market, Ibadan which is more than 1,000 acres of land. The said Kure Awojobi exercised various acts of ownership on the said land. After his death, his family exercised maximum acts of ownership and the said piece of land devolved on his family including the Appellant who is the current Mogaji/Headship of Kure Awojobi family and he is the great grandson of the Kure Awojobi. The Respondent was found on the land in dispute committing various acts of trespass hence Appellant sued the Respondent.

The Respondent on the other hand testified that he bought the land in 2002. It was a vacant land and there were no economic trees or crops on the land and that he met a small fence on the land. He stated that the Appellant had instituted an action in the High Court in respect of the land opposite Niger -West which formed part of the land in dispute. Appellant lost that action, and the court confirmed the title of the vendor of the Respondent’s predecessor in title. This fact was not disputed by the Appellant. Appellant being dissatisfied with the judgment appealed to this Court.

After a careful consideration of the evidence led, exhibits tendered and the submissions of learned Counsel to the parties, the learned trial Judge dismissed all the claims of the Appellant.

In compliance with the rules of this Court, Appellant filed his brief of argument on the 12th of February 2008 and the Appellants reply to the Respondent’s brief of argument on the 24th of June 2008. The Respondent filed his brief of argument on the 16th of June 2008 but deemed filed on 17th June 2008. At the hearing of the appeal, Learned Counsel for the Appellant adopted and relied on his respective brief of argument. There is proof of service on the Respondent for the hearing of the appeal on 28th September, 2010. Respondent’s Counsel was absent in Court and no reason was given for his absence. The Respondent’s brief is therefore deemed argued pursuant to order 17 rules 9(4) of the court of Appeal Rules 2007.

Appellant formulated two issues for determination. They are: