Madam Nusirat Akanke Tijani & Anor V. Chief Ganiyu Olalere Akinpelu & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice Oyo State, Ibadan Judicial Division delivered on the 27th February, 2006 by Akinola J.

The plaintiffs now appellants, before this court, claimed at the lower court against the respondents jointly and severally as follows:-

(i) Declaration that plaintiffs are the persons entitled to the statutory rights of occupancy over all that piece or parcel of land situate lying and being at Arooye village, Ajia Road, Ibadan.

(ii) Declaration that the transfer of part of the said piece of land by the 1st and 3rd Defendants to the 2nd, 4th, 5th and 6th Defendants is unlawful, illegal null and void.

(iii) An order of perpetual injunction restraining all the Defendants whether by themselves, their privies, agents or servants from entering the said piece or parcel of land and committing further acts of trespass.

(iv) The sum of Ten Thousand Naira (N10,000.00) only against all the defendants jointly and severally as general damages for acts of trespass committed and being committed on the plaintiffs land situate, lying and being at Arooye village, Ajia Road, Ibadan.

Issues were joined by parties. Defendants filed a statement of defence dated 23/6/2003, and plaintiffs thereafter filed a reply dated 20/01/2004 containing 17 paragraphs.

The case of the appellants was that they inherited the land in dispute from their father one Tijani Akangbe Ogunniran and later by purchase from Salawu Akande Akinpelu and Akinade Adisa Akinpelu who were members of 1st and 3rd respondents family. It was also their case that the original owner of the land was one Osunkeye Kereke who begat Akinpelu Osunkeye and that it was the said Akinpelu Osunkeye who gave the land to their father a gift before same was inherited by them after the death of their father but the same land was later purchased by them.

The respondents pleaded that the land in dispute was Sooko family land. The said Sooko was the first person to settle on same when it was a virgin forest. It was the case of the respondents that Akinade Adisa Akinpelu and Salawu Akande Akinpelu were the great grand children of Sooko, which claim was not contradicted. That the appellants alleged vendors were from Osunkeye Branch of Sooko family. Respondents also stated that Sooko family land was not partitioned and as such the said appellants’ vendors would have no reason to sell the land not being their personal land.

At the trial appellant called five witnesses and tendered exhibits. While respondents called four witnesses and also tendered exhibits. Written addresses were submitted by both counsel, In a considered judgment delivered on the 27th February, 2006 the learned trial judge dismissed the plaintiffs’ (appellants’) claim in its entirety. See pages 95-116 of the record.

Being dissatisfied with the said judgment, the appellants appealed against same by Notice of Appeal filed on the 25th of April, 2006, containing 6 grounds of appeal. Also pursuant to the leave of this court granted on the 28th of April, 2008, this court allowed the appellant to adduce further evidence in this court which was marked Exhibit ‘AA1′ and allowed to be used as exhibit 6 and later reproduced in the brief of argument. In compliance with the rules of this court, appellants’ brief of argument was filed on 7/6/10 while respondents’ brief of argument was filed on 18/01/11. Appellants also filed a reply brief on 28/2/11.

Appellants distilled two issues from the six grounds of appeal for determination as follows:-

1. Whether by state of pleadings and Exhibits tendered particularly Exhibit 6, the plaintiffs/appellants have not proved their claims to be entitled to relief’s sought.
2. Whether the plaintiffs have not proved or established their title to the land in dispute by long possession.

Respondents also formulated two issues for determination thus:-