MR. Ismaila Busari & Ors V. MR. Isiaka Oguntade (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is over a judgment in a land matter. The Respondent?s father according to the Amended Statement of Claim at the Lower Court bought the land in dispute from the father of the 1st and 2nd appellants (the 1st and 2nd defendants in the Lower Court) in December, 1991. To further cement his title to the purchased land, the respondent now late father, applied to the Oyo State Government for a Certificate Of Occupancy.

He was advised that in order to smoothen the application process for obtaining a Certificate of occupancy, the Land Purchase Agreement would have to be backdated to either 1977 or 1978. The advice was accepted, and the land Purchase Agreement was backdated to July 17 1977. In February 2002, it was discovered that the land has been encroached upon and pillars in the land removed by unknown persons. upon enquiry about the encroachment, the 1st appellant informed the respondent?s attorney who was the person then handling affairs concerning the land and one Mr. Aderemi Hamzat a surveyor’s technician that the 2nd appellant uprooted some of the pillars in the land

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and sold a portion of the land to soldiers. The 1st appellant was quite remorseful about what the 2nd appellant did and requested that money be made available by the respondent to pay off the soldiers and to also ensure that a close watch of the land is kept by the 1st appellant. The request was agreeable to the respondent and the sum of N60,000 was made available to the 1st and 2nd appellants and other children of the late vendor of the land for the suggested purpose.

An agreement confirming the receipt of the sum of N60,000 was drawn up on 10/4/2002 and signed by the agreeing parties. In spite of that agreement however, the appellants continued to trespass on the land. Consequently the respondent (the claimant in the Lower Court) filed a suit in that Court claiming as follows:-

1. Declaration that the claimant is the owner and the only person entitled to apply for a Statutory Right of Occupancy in respect of the four (4) acres of land encroached upon by the defendants out of the approximately nine (9) acres of land bought from the 1st 2nd and 5th defendants, father in 1991 at Arugbo-Ode, Idi-Mango Area (village) off Lagos/Ibadan Express Road,

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Ibadan.

2. Perpetual Injunction restraining the defendants, their agents, servants and privies from committing further acts of trespass on the said acres of land.

After hearing from the four witnesses of the respondent (the claimant in the lower Court) and the two witnesses of the appellants (the defendants in the lower Court), examining the documents tendered in evidence and considering the arguments of learned counsel, the learned trial judge in a judgment delivered on 27/6/2012 found in favour of the respondent.

Dissatisfied, the appellants fired a Notice of Appeal dated 23/7/12. The Notice of Appeal was however amended. The Amended Notice of Appeal was deemed properly filed and served on 5/5/15. In the Amended Notice of Appeal, the appellants sought to fault the judgment of the learned trial judge on seven grounds, to wit:

GROUND ONE

The learned trial judge erred in law when she declared the claimant as the owner and person entitled to a statutory Right of occupancy in respect of the (9) acres of land situate at Arugbo-ode, Idi-Mangoro, Ibadan when the claimant did not ask for such relief or declaration.

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Particulars of Error