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(2018) LPELR-44298(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of May, 2018


Before Their Lordships

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria


(for himself and on behalf of Budo-Oke family) - Appellant(s)


4. RAFIU ALAO - Respondent(s)

Other Citations

; ;


This appeal borders on land law.

This appeal is against the judgment of I. B. Garba J., of the Kwara State High Court sitting in Ilorin in Suit No. KWS/188/2013: Adisa AbdulGaniyu Musa Mustapha (for himself and on behalf of Budo-Oke family) and Aliyu Salman Olayinka and three ors; delivered on the 28th of July, 2016.

The appellant's family claimed to have been the first settlers on the disputed land, having migrated from Bida in present day Niger State. They further claimed that having migrated from Bida, they settled at a place known as Gbodofu, Balogun Fulani street Ilorin, and one Salmonu, the appellant's progenitor is said to have settled at the disputed land then virgin land, exercising various acts of ownership. The 1st & 2nd respondents in collaboration with the 3rd and 4th respondents in the year 2012, were said to have illegally encroached upon the said land and started selling same to members of the public. A dispute ensued between them, which led parties to approach the Balogun in Council. At the said council and due to the complexity of the case, parties were advised to go to Court. Hence the suit at the lower Court. The 1st and 2nd respondents on their part, who are members of the Olomo-Oba family in Ilorin claimed that the land in dispute customarily belongs to them. That the 3rd and 4th respondents were caretakers to the said land starting from the time of one Usman, and later devolving to his son Muhammed, popularly called Kawu-Maigida; and after him Suleiman Alao, and thereafter Musa Adisa Mustapha.

The respondents went further to state that the dispute over the land area in contention started after the death of Musa Adisa Mustapha, when his children got onto the land and started selling it, in spite of efforts by the other caretakers to stop them, and when the matter was reported to the 1st and 2nd respondents, this unruly behaviors of the 3rd and 4th respondents, temporarily abated for a while, but later resumed selling the land after some time. The 1st and 2nd defendants the alleged owners of the land were said to have resisted the actions of the children of Musa Mustapha, including filing criminal charges against them at the Upper Area Court 1 Ilorin, as well as reporting them to the Balogun in Council, but in spite of the fact that each segment of the trio family were allocated segments of land upon the request of the Balogun in Council, as compensation for their stewardship, the claimants continued with their acts of trespass to the extent of disputing the ownership of the 1st and 2nd respondents to the land.

Consequently, the claimants on the 7th of July, 2013 filed a writ of summons against the defendants in a representative capacity, and by the statement of claiming some reliefs. The defendants in the joint statement of defense dated and filed on the 6th of November, 2013 with leave of Court, denied the entirety of the claim and further counterclaimed. Issues having been joined, the case proceeded to a protracted trial at the end of which written addresses were ordered filed and adopted. The trail Court in a considered decision delivered on the 13th of March, 2016, dismissed the claimants' claim in its entirety for lacking in merit and granted the 1st and 2nd defendants'/counterclaimants' claim.

Obviously dissatisfied with the trial Court's decision, the claimants appealed to the Court of Appeal.

The Court determined the appeal on the issues formulated by the appellant as follows:
i. Whether having regard to the pleadings and evidence led in support of same by the parties, the learned trial Court was right in holding that there exist a conflicting traditional historical evidence of ownership of the disputed land.
ii. Whether the learned trial Court was right to have shifted the burden of establishing how the family of the 1st and 2nd respondents came to settle and build their houses on the disputed land of the appellant, the respondents having counter-claimed against the appellant in respect of the disputed land.
iii. Whether the learned trial Court was right to have based his decision on the respondent's exercise of right of ownership, possession and sharing of the disputed land purportedly carried out by the Balogun-in-council in the face of failure of the respondents to prove their title by traditional history relied upon.
iv. Whether the features, structures and/or objects on the disputed land are facts which required to be pleaded and evidence led on same so as to afford the other party opportunity to react and cross-examine on those features and structures; if the answer is in the affirmative, whether the trial Court was right to have relied on those features and objects which came up for the first time in the course of proceedings during visit to locus in quo without giving the appellant right to cross-examine on same.

Having resolved all the issues canvassed against the appellant, the Court unanimously dismissed the appeal for lack of merit. Consequently, the judgment of I. B Garba of the High Court of Justice Kwara State, in suit Number KWS/188/2013 between Adisa Abdulganiyu Mustapha, for himself and on behalf of Budo-Oke family vs. Aliyu Salman Olayinka and 3 Ors, delivered on the 28th of July, 2016 was thereby affirmed.

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