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Suit No 1/244/57: Bamigbade & Anor. v. Lawani Fadiwin Fagbenro.
I think the claim in regard to this previous litigation is well put in the Brief filed by the Defendant/Appellant. It was -
That in the suit the predecessors of the present Defendant/Appellant were the Plaintiffs. They took action against the Fadiwin Family that is the predecessors in title of the present Plaintiff/Respondent. The Judge in that case (Doherty J.) pointed out that there was an earlier case in which Fadiwin had sued one Suberu Alake and Raji (of Ilaji Family). That suit Doherty J. said ended in the Lieutenant Governor's Court. According to Doherty J. the land in dispute in that earlier case was awarded to the Fadiwin family and that must have included the Lieutenant Governor's Court, unanimously held that the old course of the Ogun pa Stream was the boundary between Fadiwin Family and Ilaji Family.
The Defendant has submitted that the land in dispute in the present action is on the Ilaji Family side of that boundary and a fortiori, the Defendant relied on estoppel that is the action, 1/244/57, aforesaid, has estopped the Plaintiff from disputing the title of the Defendant whose title was derived from the Ilaji Family.
The other case relied on by the Defendant/Appellant was
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Suit No.1/145/68: Akande v Lamidi Fadiwin Fagbenro. An action for trespass. It was brought by me present Defendant against the Fadiwin Family. Be it noted that the present plaintiff/respondent claimed title from Fadiwin Family. The claim was that having purchased the land from Ilaji Family, the Fadiwin Family were and the Appellant claim in this appeal was that Fakayode C.J. who tried the case pointed out that land in dispute is enclosed by the old and new courses of the Ogunpa Stream and that the original owners were the Odetunde Family.
However, at the trial it was necessary and both parties agreed that the Court should visit the locus in quo. During that visit, one man Suberu Akano Oke who claimed to be a member of the Ilaji Family volunteered to assist the Court by pointing out the area of the land in dispute. The Court later took the evidence of this man though there was strong opposition from the learned counsel for the Defendant. The gist of his evidence was that the Defendant in his surveyed plan included land which the Ilaji Family never owned nor sold to him and which in fact belonged to the Plaintiff. According to the record of proceedings this witness was cross-examined at length but the Judge in accepting the evidence noted that the witness was not shaken in his testimony.
What is more, the witness told the court that the land in dispute in the case his family lost to Fadiwin Family was the land which was sold to the Plaintiff.
