Mo V. Chief Lasisi Adeyemo & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment)

This is an appeal and cross-appeal against the judgment of the High Court of Oyo State sitting at Ibadan delivered on13th October, 1998 dismissing all the plaintiff’s/appellant’s claims.

By a writ of summons dated 29/8/91 filed before the High Court of Oyo State, Ibadan Judicial Division, the appellant herein (as plaintiff) sought the following reliefs against the respondents herein (as defendants) jointly and severally:

1. Declaration of title to Statutory Right of Occupancy to that piece or parcel of land shown on plan no. OK 940 of 13th January, 1978 drawn by K.O. Ishola attached to Deed of Conveyance dated 1st March, 1978 and registered as No. 5 at page 5 Volume 2269 of the Lands Registry in the office at Ibadan and thereon EDGED RED.
2. Two Thousand Naira (N2, 000:00) general damages for acts of trespass committed and still being committed by the defendant (sic) their servants and agents on the Plaintiff’s land.
3. An order of perpetual injunction restraining the defendants by themselves, their servants, agents, privies and or anyone claiming through them from committing further acts of trespass by the said land.

The parties duly filed and exchanged pleadings and the matter proceeded to trial. The appellant testified on his own behalf and called four other witnesses. The 2nd respondent and one other witness testified on behalf of the defendants.

The parties tendered exhibits in support of their cases.

It was the appellant’s case before the trial court that the land in dispute originally belonged to one Akinsoji of Akobo, Ibadan, by settlement many years ago. Akinsoji made a grant of the land to Adesina, the appellant’s grandfather about one hundred years ago. Sometime in 1930, one Olujinle challenged Adesina’s title to the land. The dispute was resolved in Adesina’s favour and he remained in undisturbed possession thereof until his death. Adesina’s eldest son, Adewoye predeceased him. Thus after his death, his son, Adeyemo Adesina became the Head (Mogaji) of the family. Adeyemo Adesina was the appellant’s father.

According to the appellant his father sold the land in dispute to one S.B.O. Folayan. The size of the land sold to Folayan was 25.05 acres. It was evidenced by a deed of conveyance dated 1st March, 1978 (tendered as Exhibit A in the proceedings) and shown on the survey plan No. OK 940 dated 13/1/78 attached to Exhibit A. on 21st March, 1978 the appellant purchased 20.05 out of the 25.05 acres sold to Folayan from him under customary law in the presence of witnesses. Folayan gave him a receipt, which was admitted in evidence as Exhibit B. He exercised acts of ownership on the said land including preparing a layout plan, which he named after his late father and selling portions to individuals. It was the appellant’s testimony before the trial court that the respondents are all his relations and that he instituted the action before the lower court when he noticed them trespassing on his land between 1988 – 1990 and they refused to heed all entreaties to leave the land. The case of the respondents was that during the time that Adesina’s title to the land was being challenged by Olujinle, it was the appellant’s father, Adeyemo Adesina who pursued the case at his own expense to its ultimate successful conclusion, as their grandfather died during the pendency of the suit. They contend that in appreciation of the role played by Adeyemo in that case, the entire Adesina family decided to divide the family land into two and gave Adeyemo half of the land and reserved the rest for the use of the Adesina family. That Adeyemo decided to distribute his land among his children and instructed the appellant, who worked as a Senior Official at the Oyo State Housing Corporation to prepare a layout of the land for the purpose, which the appellant duly produced. That Adeyemo died before he could share the land among his children. According to the respondents, after Adeyemo’s death a large portion of the Adeyemo family compound was demolished to make way for Oranyan/Beyerunka/Ogboriefon Street, which was under construction at the time. They stated that in order to resettle the displaced persons and to carry out Adeyemo’s wishes, the 1st respondent, Lasisi Adesina, as the Mogaji of the family decided to give one plot of land each to Adeyemo’s children.

Lasisi Adesina and the appellant are brothers of full blood. It is the respondent’s contention that it was the layout plan produced by the appellant in compliance with the late Adeyemo’s instructions that was used to share the plots.

They contend that the land occupied by them does not belong to the appellant but is Adesina family land. That there was no sale to Folayan and that the thumb impression of Adeyemo on Exhibit A was not his because in his lifetime he signed documents in his handwriting and did not thumb print. They contended that Folayan was an indigent man and could not afford to buy the land as alleged by the appellant.

They contended, inter alia that the appellant had sold off various portions of the land and could not therefore be entitled to the total area of land claimed.

At the conclusion of the trial learned counsel for the parties addressed the court. In a reserved judgment delivered on 13th October, 1998 the learned trial Judge held at page 145 lines 22 – 32:

“This court is of the VIEW that the plaintiff had established that Mr. S.B.O. Folayan bought from and got conveyed to him by Adesina Family 25.05 acres of their family land at Adeoya Village, Olorunda Road, Ibadan under the received English Law, whilst he (the plaintiff) bought and possessed from Mr. S.B.0. Folayan 20.05 acres of land out of the 25.05 acres of land he, Mr. Folayan bought from Adesina Family at Adeoya Village, Olorunda Road, Ibadan under customary law.”

He continued at page 147 lines 22 – 37:

“Without mincing words, Exhibit A and plan no. OK 940 of 13/1/78 attached to it both show that a total of 25.05 acres of Adesina family land at Adeoya Village/Ibadan was conveyed to Mr.S.B.O. Folayan. However Exhibit 8 shows that only 20.05 acres of the said 25.05 acres that was bought by Mr. Folayan was sold by Mr. Folayan to the plaintiff. It will therefore be wrong for the plaintiff to request this court to make a declaration of title in his favour to the totality of the land that Mr. Folayan got conveyed to him vide Exhibit A, as through Exhibit 8 the plaintiff did not buy the totality of 25.05 acres from Mr. Folayan.”