Pastor Badmus Akinkumi V. Rasheed Adebola Bakare (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is over the ownership of land. At the trial stage, it was heard and determined by the Ogun State High Court. The case commenced in 1998. Judgment was delivered in 2005. From what can be pieced together from the pleadings of both parties in the court below, the applicant’s vendors and the respondent are of a common ancestry, or put more accurately, identify a common denominator in Bakare Mogaji Sanusi and his father identified by the respondent simply as Sanusi, but by the appellant as Agbabiaka Sanusi.

The respondent’s account as gathered from his amended statement of claim at page 63-66 of the record, is that the land originally belonged to Lagun son of Omo Oba Ijasi who first settled on the land. Lagun was from Ijasi in ljebu-Ode in Ogun State. He had three children, Solu, Oguntola and Disu who inherited the land at his death. Ogunsola one of Lagun’s children aforementioned, had two children namely Sadiku and Sanusi. Sanusi begat Bakare Mogaji Sanusi. Bakare Mogaji Sanusi had seven children, Z. O. Bakare, Amisu Bakare, Rasidi Adeoba Bakare the respondent in this appeal, Abibatu, Muibat, sauriatu Bakare and Tola Bakare.

While Z. O. Bakare, Abibatu and sauriatu Bakare were of the same mother, the respondent, Muibat and Tola Bakare were of a different mother. Amisu Bakare was an only child of the mother. The family of Bakare Mogaji Sanusi thus comprised of three branches with each branch made up of the children of each wife of Bakare Mogaji Sanusi.

Bakare Mogaji Sanusi was given a piece of land along Ibadan Road Ijebu-ode in 1948 upon a request by him to the family. He surveyed the land that same year and in 1949, built a store on part of it. He also leased part of the land to a company known as G. B. Ollivant Ltd. In 1973, he distributed his land according to the branches earlier described. The distribution was done in the presence of all his children with his first son Z. O. Bakare playing a prominent role. That first son built a storey building on the portion of land that devolved on his branch of the family. That portion of land was where Bakare Mogaji Sanusi had his store. The remainder portion of land consisting of two plots of land devolved on the respondent’s branch and the branch of Amisu Bakare. It is that portion that is in dispute in this case on appeal.

The case of the appellant (the defendant in the court below) is that the land originally belonged to Pa Agbabiaka Sanusi who first settled on it. He had two wives and seven children. The first wife had six children namely, Salamotu, Bakare, Sadatu, Yesufu, Osenotu and Amusa. Bakare one of the named children also known as Bakare sanusi, otherwise known as Bakare Mogaji sanusi was the father of the respondent.

Bakare Mogaji sanusi was the first male child. He built a store on the land. In 1972 Bakare Mogaji Sanusi shared the remaining portion of the land into three parts. A part was given to Awawu the only living issue of one of the wives of Pa Agbabiaka Sanusi, the original owner of the land; a part was also given to the Amusa Mojidi section of the family. That part of the land was taken by Mogaji Hamzat. A third part of the land was given to Falilat Kuku and Bisiriyu Yesufu, the children of Pa Agbabiaka sanusi by Yesufu.

The portion of the land occupied by Bakare Mogaii Sanusi was given to Z.O. Bakare who built on it.

Awawu who had a part of the divided land all to herself being an only child of her mother being childless herself, gave her share of the land to Falilat Kuku, Bisiriyu Yesufu and Mogaji Hamza. It is that land of Awawu that Falilat Kuku and Bisiriyu Yesufu sold to the appellant.

From the rather detailed account above, a few common strands in the narrative of both parties to the appeal emerge. Firstly, the respondent and the appellant’s vendors recognize Sanusi or Agbabiaka Sanusi as their grandfather or father. Both parties speak of the family being comprised of three branches although differing on the configuration or composition of those branches. Both parties also agree that the family land was shared circa 1972. Both parties lay claim to the land in dispute.

The claim before the court below reads:

1. A declaration that the plaintiff (respondent in the appeal) is entitled to the statutory right of occupancy in respect of the subject matter of this suit being the parcel of land situate, lying and being at Ibadan Road, Ijebu-Ode and which is in survey plan No.SAP/62A/48 and which property belongs to the plaintiff’s branch of the Mogaji Sanusi family by virtue of inheritance.

2, N50,000 being general damages for the trespass committed by the defendant when on the 5th day of April 1998 the defendant entered the said parcel of land at Ibadan Road Ijebu-Ode and put up shed on the said parcel of land without the knowledge and consent of the Plaintiff.

3. Injunction restraining the defendant, his agent, servants or anybody claiming through him from further acts of trespass.

After hearing the parties, the learned trial Judge T. Ibikunle Adesalu J. came to the conclusion that the respondent is entitled to virtually all his claims. He therefore entered judgment in his favour and awarded N20,000 damages for trespass against the appellant. Dissatisfied with the judgment, the appellant appealed to this court. In his Notice of Appeal, he gave 4 grounds of appeal as follows:

The learned trial Judge erred in law and on the facts when he held that the grant of the lease, Exhibit A by the father of the plaintiff in his own name was an exercise of right of ownership when there was no evidence before the trial court that Exhibit ‘A’ is related or relevant to the land in dispute;