Simbiatu Agboke & Anor. V. Jimoh Igbira & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Ogun State High Court holden at Abeokuta presided over by Oduntan J. dated 16/2/89 ‘whereby the plaintiffs’ claims were dismissed in all its entirety.

The facts of this case briefly put were as follows:-

The appellants herein as plaintiffs took out a Writ of Summons against the respondents herein as defendants seeking the following interlocutory and injunctive reliefs viz:

(a) For a declaration that the purported sale of the land in dispute shown on Plan No. ALS/OG214C/84 dated 28/5/84 by the second defendant to the first defendant is void.

(b) For a declaration that the plaintiffs and the second defendant are jointly entitled to a right of occupancy in respect of the said piece of land (4.686 hectares) situate at Ntabe Village in Ijoko Town, Ogun State shown on plan NO. LAY/315/88/0G.

(c) Trespass against the first defendant for illegal occupation of the said land.

(d) Damages of N500.00 against the first defendant.

(e) Perpetual injunction restraining the first defendant, his servants, agents or privies from committing further acts of trespass on the said land.

Parties filed and exchanged pleadings. At the trial the plaintiff/appellants called 3 witnesses which included the 2nd defendant. The 1st respondent gave evidence on his own behalf. Both parties agreed that both the plaintiffs and the defendants agreed that the land in dispute originally belonged to their late father Pa. Agboke. The said land in dispute is the tract of land inherited by the plaintiffs and the 2nd defendant through their mother Ashia who was one of the four wives of Pa. Agboke. However, the plaintiffs’ case was that the 2nd defendant sold a portion of their said family land to the father of the 1st defendant without their consent and without any ‘proper partitioning of the said land. On the other hand, the case of 1st defendant/respondents was that 2nd respondent sold the land in dispute to his late father Abu Igbira otherwise known as Abu Abipa in 1975. According to him, the land in dispute was the portion allocated to the 2nd respondent after a partition exercise of his father’s land. On the death of his father in 1983, the 1st respondent inherited the land purchased. 1st respondent denied the fact that his father was paying rent on the land in dispute and testified that the 2nd respondent admitted selling the said land to his father at a meeting held on 18/6/83.

After taking evidence and listening to arguments of counsel on both sides, the learned trial Judge in his judgment at pages 7 – 8 of the records found thus:

“From the contents of Exhibit B, i.e., paragraph 1 and the schedule above, two farmlands with different boundary men were sold by the 2nd defendant to 1st defendant’s father. The plaintiffs cannot therefore claim that the land inherited by them along with the 2 defendant was one undivided tract of land. It is clear beyond doubt that the farmland inherited by them had been partitioned. If this is not so, the 2nd defendant would not have sold two farmlands to the 1st defendant’s father.”

The Court then held that the land disposed by 2nd respondent to the 1st respondent’s father was no more a family property and that the 2nd respondent had the legal right to dispose of the land since same had been partitioned. The Court, in consequence dismissed the plaintiffs/appellants’ claim in its entirety.

Dissatisfied with this judgment, the plaintiffs (hereinafter referred to as the appellants) have appealed to this Court on 5 grounds. From these five grounds of appeal, the appellants have formulated two issues for determination in this appeal, viz: