Oredola Okeya Trading Co. Vs A.G. Of Kwara State (1992)

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OGUNDARE, JSC. 

The plaintiff, a limited liability company bought from the Galadima Family a piece or parcel of land situate at Galadima Village opposite the Ilorin Airport. Sometime later the Government of Kwara State granted a part of the land to the 2nd defendant for the purpose of a petrol station.The latter went into possession and erected a petrol station on the land granted it by the Government, who is represented in these proceedings by the 1st defendant. The plaintiff protested to the Commissioner for Housing and Environment, Ilorin and when it failed to obtain redress, sued the two defendants, claiming as per its statement of claim:

“(i) that it may (be) decreed that its right of occupancy (over the land in dispute) still subsists; and

(ii) that it may be ordered that the second defendant is prohibited from occupying the land in question and/or from committing further acts of trespass on the said land (sic)” (brackets are mine)

Pleadings having been filed and exchanged, the action proceeded to trial at the end of which the learned trial judge, Oyeyipo, J., (as he then was) adjourned the case to 2/3/84 for judgment. Judgment was not delivered within the 3 months period laid down in section 258(1) of the Constitution and the trial was aborted on 27/7/85 by Oyeyipo, C.J. making an order of transfer of the suit to another judge for trial and determination.

A new trial commenced before Fabiyi, J., on 22/7/85 after the 1st defendant had sought and obtained leave to amend his statement of defence. At the conclusion of the new trial and after addresses by learned counsel for the parties, the learned trial judge in a reserved judgment, found:

(a) that as the plaintiff a non-native, purported to buy customary land from. Galadima Family in August, 1974 without the Commissioner’s consent first had and obtained, is has no legal title to which it can maintain action for trespass, and

(b) that the 2nd defendant is a grantee for value without notice of plaintiff’s prior interest and claim.

He then dismissed plaintiff’s claim.

Being dissatisfied with the judgment, the plaintiff appealed unsuccessfully to the Court of Appeal. It has now further appealed to this court upon five grounds of appeal and in its learned counsel’s written brief of argument, the following five questions are set down as calling for determination in the appeal to this court:

“i. What is an instrument and is Exhibit 1 an instrument which must be registered?

ii. Was it right of the learned trial judge to have held that Exhibit 1 was inadmissible and to have expunged it?

iii. Did the plaintiff (appellant herein) have a protectable interest and therefore entitled to a notice of revocation of its interest under section 28(6) and (7) of the Land Use Act?

Could the Court of Appeal have properly ignored the concession made by the learned counsel for the 2nd respondent that the appellant’s appeal be allowed and that the appellant’s case be non-suited?