Mr. Toyin Akanbi & Anor. V. Alhaji Shuaib Kasandubu (1997)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

Alhaji Shuaib Kasandubu now deceased sued the appellants and two others before an Ilorin High Court for trespass to his land and injunction to restrain them from further trespass. Para. 18 of the respondent’s amended statement of claim summarized his claim as follows:-

“18. The plaintiff says that the defendants are the sole authority administering the school called Ilorin Grammar School in Ilorin Kwara State of Nigeria.

Whereof the plaintiff claim against the defendants is a permanent injunction restraining the defendants and their agents, privies and servants from entering or trespassing or doing anything whatsoever at the plaintiffs land at Asa Dam behind Geri Alimi Hospital Ilorin.”

The two appellants filed a statement of defence denying the claim. The respondent gave evidence on his own behalf that he bought a piece of land in 1972. He tendered an agreement which evidenced the sale and transfer of the land as Exh. 1 and a permit to alienate the land granted by the Local Government as Exh. 2 and a site plan of the land attached to Exh. 2 as Exhibit 2A. He said that he bought the land from one Basharu Asunnera who gave evidence as P.W.1 confirming the sale of the piece of land to the respondent. According to the plaintiff in the court below, trouble started when the appellants encroached upon his land and started building a wall thereon.

The appellants called one Dr. Amuda Aluko as a witness, D.W.1. He is the proprietor of Geri Alimi Hospital Ilorin. He gave evidence that he bought a piece of land from one Iya Agba Ajika in 1973 but when he started to develop the land the authorities of Ilorin Grammar School told him that the land was theirs and that they had a certificate of occupancy over it. He then took permission from them to build his hospital. He admitted that the respondent came to discuss with him and he told him that the land behind the hospital belonged to him but he was not interested in the business.

The 1st appellant who was the principal of Ilorin Grammar School gave evidence that the disputed land belonged to Ilorin Grammar School as absolute owner. He tendered records of disputes on the land before between the school and one Saudatu Lawal which went as far as the Supreme Court and Ilorin Grammar School won all along.

Under cross examination the 1st appellant stated as follows:

‘The land in dispute is between Tipper Owners Association Structure and Dr. Aluko’s Geri Alimi Hospital.”

The court visited the locus in quo where it was shown the disputed land. Thereafter counsel on either side addressed the court, and in a reserved judgment, the trial judge Gbadeyan J. gave judgment in favour of the respondent and granted the injunction sought.

Dissatisfied with that judgment the appellants appealed to this court on 5 grounds of appeal. In accordance with the Rules of this court the appellants filed a brief of argument and identified 4 issues for determination as follows:-

“1. Whether considering the totality of evidence before the trial court that court was right to give judgment to the plaintiff/respondent (Ground 1).

2. Whether the trial High Court was right in laying the onus of proof on the defendants/appellants on the land facing Asa Dam Road from NUT Secretariat up to back of Gari Alimi Hospital which form part of the land claimed by the plaintiff/respondent. (Ground 2).
3. Whether the land awarded to the plaintiff/respondent is certain, definite and identifiable and that the perpetual injunction thereon imposed on the defendants/appellants was proper. (Ground 5).
4. Whether the land shown to the court at the locus in quo inspection is the same land as contained in Exhibits 1, 2 and 2A and the same land awarded to the plaintiff/respondent.” (Grounds 3 and 4).

The plaintiff in the court below died and was replaced by his son Ibrahim Kasandubu who is now the respondent to this appeal. The respondent filed a brief of argument and identified two issues for determination:-

“1. Whether on the totality of the evidence before the court the plaintiff justified the allegation of trespass made against the defendants/appellants. (Grounds 1 and 2).