Saibu Ajagbe & Ors V. Alhaji Mustafa Oyekola & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Osogbo Judicial Division of the High Court of Osun State delivered in Suit No HOS/60/95 on the 26th of July, 2005. The claims of the Appellants, as plaintiffs, in the suit were for:

i. Declaration of title of statutory right of occupancy to all the piece or parcel of land situate lying and being at Aigbe Farm area, off Oba Road, Osogbo and which is more particularly described and delineated in survey plan No. OS/894/98/LB.001 dated 15th of January, 1998 drawn by Olufemi Olunlade, licensed surveyor, and thereon edged Red.

ii. N20,000.00 being general damages for trespass committed by the defendants and their agents on the said land in dispute from 1994 until now.

iii. Perpetual injunction restraining the defendants, their servants, agents and/or privies and anybody claiming through them from committing further acts of trespass on the said land.

Pleadings were exchanged between the parties and the matter went to trial. In a judgment delivered on the 26th of July, 2005, the claims of the appellants were dismissed by the lower court. The Appellants were dissatisfied with the decision and they filed a notice of appeal dated the 4th of August, 2005 against the judgment. The original representatives of the family of the appellants in this appeal were one Raji Opoola and the first appellant herein but following the death of the said Raji Opoola, the second to the fourth appellants were added as parties and the appellants were granted leave by this Court to amend the notice of appeal on the 7th of February, 2011. The appellants filed an amended notice of appeal dated the 12th of November, 2010 on the 7th of February, 2011. The amended notice of appeal contained five grounds of appeal, including the omnibus ground of appeal.

In compliance with the Rules of this Court, the appellants filed a brief of arguments dated the 7th of February, 2011 and it consisted of thirty-six pages. The respondents filed a brief of arguments consisting of nineteen pages and dated the 20th of February, 2012 in response. The brief of arguments of the respondents was deemed properly filed by this Court on the 11th of July, 2012. At the hearing of the appeal on the 29th of November, 2012, counsel to the appellants and to respondents relied on and adopted their respective briefs of arguments.

In his brief of arguments, counsel to the appellants distilled five issues for determination from the five grounds of appeal and these were:

i. Whether Exhibit D2 tendered by the ddefendant in this suit which related to chieftaincy dispute could operate as issue estoppel in respect of this suit which related to title to land and when the plaintiffs/appellants did not make it an issue in their case put before the trial court.

ii. Whether the defendants/respondents could be held to have land near the land in dispute and the portion allegedly given to them by their ancestor Adedunhan was the portion allegedly occupied by the Defendants in view of the judgments in Suit No. HOS/69/94 and Appeal No. CA/I/140/2001 admitted as Exhibits P2 and P5 which decided that the defendants are not owners of the land, they are (sic) claimed to be theirs in this suit.

iii. Whether by virtue of the decisions in the judgments in Suit No. HOS/69/94 and Appeal No CA/I/140/2001 admitted as Exhibits P2 and P5 the defendants version of traditional evidence that Larooye had his own land and Lajomo had his own land being the original founders with common boundary and that Lajomo divided his own land between his children Sogbo and Adedunhan could be held to be more probable and accepted by the trial court.

iv. Whether by failing to consider the case put up by the Plaintiffs and evidence and exhibits tendered before the trial court in support, the Plaintiffs could be held not to have proved their case to be entitled to the declarations they sought.

v. Whether the learned trial court properly evaluated or did not evaluate the evidence tendered by the parties before finding that the Plaintiffs have not proved their case and are not entitled to the reliefs sought.

Counsel to the Respondents adopted the five issues for determination formulated by the Appellants’ Counsel.