SELECTED JUDGEMENTS OF THE

COURTS IN OSUN STATE OF NIGERIA

MAIDEN EDITION

To be cited as ULR
Rain 2020

All Rights Reserved

ISBN 978-978-38530-2-3
PUBLICATION OF
UNIOSUN LEGAL CLINIC AID
AND
LAW STUDENTS SOCIETY
COLLEGE OF LAW, IFETEDO CAMPUS
OSUN STATE UNIVERSITY, OSOGBO

by: Printova Publishers

8, Yaba Road, Ondo, Ondo State.
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 EDITORIAL BOARD

EDITOR -IN- CHIEF

FALADE OLUGBENGA D. ESQ. SUB DEAN STUDENTS AFFAIRS

COLLEGE OF LAW, IFETEDO
CAMPUS

EDITORS

TOKODE THEOPHILOUS LAW STUDENT

ADEYERI OLUWAFERANMI LAW STUDENT
OLAGBENRO TOBI LAW STUDENT
FAYILENU BOLUWATIFE LAW STUDENT
IDOWU CHRISTIANAH LAW STUDENT
FALADE ADELEKE LAW STUDENT
ISAWUMI DANIELLA LAW STUDENT
ADEWALE GBEMISOLA LAW STUDENT
FALADE JOLAADE LEGAL PRACTITIONER
ADEBISI TIMISOLA LEGAL PRACTITIONER

MENTORS

HON. JUSTICE O. A. OJO THE CHIEF JUDGE OF OSUN STATE

HON. JUSTICE M. L. ABIMBOLA THE CHIEF JUDGE OF OYO STATE

HON. JUSTICE F. E. AWOLALU THE PRESIDENT, OSUN STATE

CUSTOMARY COURT OF
APPEAL

MALLAM YUSUF O. ALI SAN PRO-CHANCELLOR & CHAIRMAN

OF COUNCIL, OSUN STATE
UNIVERSITY, OSOGBO

PROFESSOR LABODE POPOOLA VICE CHANCELLOR, OSUN STATE

UNIVERSITY, OSOGBO

SENATOR (DR.) AJIBOLA S. BASIRU FORMER ATTORNEY GENERAL OF

OSUN STATE AND PRESENTLY
MEMBER OF THE SENATE OF THE
FEDERAL REPUBLIC OF NIGERIA.
COLLEGE ADVISERS

1. PROF. OLAIDE GBADAMOSI

2. PROF. ISA BELLO
3. DR. OLADIRAN AYODELE
4. DR. NASIR ADENIYI
5. DR. IFEOLU KONI
6. DR. AYOBAMI JOSHUA
7. MR. OLU. JACOB AROWOSEGBE
8. MR. ROTIMI AKOMOLAFE
9. MR. RUFUS MMADU
10. MRS. LABEKE OGUNWANDE
11. MRS. HALIMA GIWA
 JUSTICES OF THE OSUN STATE HIGH COURT

(a) HON. JUSTICE O. A. OJO THE HONOURABLE CHIEF JUDGE

(b) HON. JUSTICE W. O. AKANBI
(c) HON. JUSTICE A. B. ABDULKAREEM
(d) HON. JUSTICE O. D. AFOLABI
(e) HON. JUSTICE R. A. SHIYANBOLA
(f) HON. JUSTICE A. A. G. ONIBOKUN
(g) HON. JUSTICE A. A. ADERIBIGBE
(h) HON. JUSTICE J. O. OGUNLEYE
(i) HON. JUSTICE I. O. ADELEKE
(j) HON. JUSTICE A. O. AYOOLA
(k) HON. JUSTICE S. O. FALOLA
(l) HON. JUSTICE K. M. AKANO
(m)HON. JUSTICE A. O. OYEBIYI
(n) HON. JUSTICE A. L, ADEGOKE
(o) HON. JUSTICE M. O. AGBOOLA
(p) HON. JUSTICE L. O. AROJO
(q) HON, JUSTICE O. J. AJANAKU
(r) HON. JUSTICE S. A. OKE

JUSTICES OF THE OSUN STATE CUSTOMARY COURT OF APPEAL

(1) HON. JUSTICE F. E. AWOLALU THE PRESIDENT

(2) HON. JUSTICE S. A. ADEOYE
(3) HON. JUSTICE A. A. AJEIGBE
(4) HON. JUSTICE S. O. ADENLU

JUSTICES OF THE FEDERAL HIGH COURT, OSOGBO DIVISION

A. HON. JUSTICE NATHANIEL AYO - EMMANUEL

B. HON. JUSTICE PETER LIFU
 CONTENTS

1. Index of Cases Reported ............................................................................... 1

2. Index of Subject Matter ............................................................................... 2

3. Index of Nigerian Cases Considered in this Report....................................... 7

4. Index of Nigerian Statutes/Rules of Courts Considered in this Report ...... 15

5. Index of Books considered in this Report ..................................................... 16

6. Cases Reported ............................................................................... 17

 1
INDEX OF CASES REPORTED

Commissioner of Police v. Mutalabi Raimi (2020) S.H.C. 17

Kunle Rasheed Adegoke v. Advertising Practitioners Council (APCON) 36

(2019) F. H.C.

The State v. Olayemi Babatunde Yusuf & 3 ors (2019) S.H.C. 54

Incorporated Trustees of African Church v. Chief Dele Oke (2020) 81
S.H.C.

The State v. Raheem Oluwatoyin (2019) S.H.C. 107

Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo (2019) 128
S.H.C.

Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C. 147
 2

INDEX OF SUBJECT MATTER

ACTIONS –Right of Action – Statute of Limitation

-Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasu po (2020) S.H.C

ACT OF ASSEMBLY- State of Osun Land Use Charge law 2016 and applicability
-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

ADMINISTRATIVE LAW - Power and mandate of APCON - Advertising

Practitioners CouncilofNigeria (APCON)
-Kunle Rasheed Adegokev. Advertising Practitioners Council (APCON)
(2019) S. H.C

ADMINISTRATIVE LAW - Power of APCON over non members

-Kunle Rasheed Adegokev. Advertising Practitioners Council (APCON) (2019)
S. H.C

APPEALS- Grounds of appeal- Requirement for grounds of appeal to well stated.

-Commissioner of Police v. Mutalabi Raimi (2020) S.H.C

CONSTITUTION- Schedule. Interpretation of the fourth schedule

-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

COMPANY LAW& PROCEDUR E - whether a claimant who is a non member of

APCON can be pinned under the APCON Act.
-Kunle Rasheed Adegokev. Advertising Practitioners Council (APCON) (2019)
H.C

COMPANY LAW - Interpretation of section 72 of the Company and Allied

Matters Act.
-Incorporated trustees of African Church v. Chief Dele Oke (2019) S.H.C

CRIMINAL LAW AND PROCEDURE - What amounts to proof beyond

reasonable doubt.
-The State v. OlayemiBabatunde Yusuf ( 2019) H.C

CRIMINAL LAW - Stealing- Offence of- Ingredients of

 3
-The State vs Raheem Oluwatoyin (2019) S.H.C

CRIMINAL LAW - Burden of Proof- burden of proofs in criminal matters

-Commissioner of Police v. Mutalabi Raimi (2020) H.C

CRIMINAL LAW –False Pretence- Offence of- Ingredients of

-The State vs Raheem Oluwatoyin (2019) S.H.C

CRIMINAL LAW - Arson- Offence of

-The State vs Raheem Oluwatoyin (2019) S.H.C

CRIMINAL LAW AND PROCEDURE - Conspiracy- meaning of- ingredients of-

what amounts to conspiracy.
-The State vs. OlayemiBabatunde Yusuf (2019) H.C

CRIMINAL LAW AND PROCEDURE - Fraud- False Pretence- element- what

constitutes
-The State vs. OlayemiBabatunde Yusuf (2019) H.C

CRIMINAL LAW AND PROCEDURE - Conviction based on being a beneficiary

of a crime.
-The State vs. OlayemiBabatunde Yusuf ( 2019) H.C

CRIMINAL LAW AND PROCEDURE - False Pretence- Meaning of

-Commissioner of Police vs. Mutalabi Raimi (2020) H.C

CRIMINAL LAW AND PROCEDURE -Importance of the accused

understanding the charge against him-
-Commissioner of Police vs. Mutalabi Raimi (2020) H.C

CRIMINAL LAW AND PROCEDURE -Ingredients to convict an accused for

the offence of false pretence-
-Commissioner of Police vs. Mutalabi Raimi (2020) H.C

CRIMINAL LAW AND PROCEDURE - What tantamount to Intent to defraud or

deceive-
-Commissioner of Police vs. Mutalabi Raimi (2020) H.C
 4
EVIDENCE - Burden of proof in Criminal law.
-The State vs. OlayemiBabatunde Yusuf (2019) H.C

EVIDENCE - Discrepancy of evidence and charge

-Commissioner of Police vs. Mutalabi Raimi (2020) H.C

JURISDICTION- Suit – State High Court- Powers of state high courts

-Kanmi Ajibola v. Governor of Osun State & 2 ors (2017) S.H.C

LAND LAW – methods of proof of title in land matter.

-Incorporated Trustees of African Church v. Chief Dele Oke (2020) S.H.C

LAND LAW - when there is a conflict of traditional evidence

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

LIMITATIONS LAW - limitation laws of Osun State

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

LIMITATIONS LAW - Limitation law and continued trespass

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

LOCUS STANDI - Parties to a suit or parties that can institute legal proceedings.
-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

PLEADINGS -Counter Claim – Deed of Conveyance

-Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo (2019) S.H.C

PLEADINGS -Declaratory Reliefs – Discretion of Court

-Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo (2019) S.H.C

PRACTICE AND PROCEDURE- Reply Address- Abuse of Process-whether Re-

canvassing or introducing new points by the council is valid.
-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

PRACTICE AND PROCEDURE - Regarding amendment of Charge Suo Motu:

-Commissioner of Police v. Mutalabi Raimi (2020) H.C
 5
PRACTICE AND PROCEDURE - Whether section of the law used in the charge
and for trial of the accused can be changed at Appellate Court-
-Commissioner of Police v. Mutalabi Raimi (2020) H.C

PRACTICE AND PROCEDURE - Submission of Counsel

-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

PLEADINGS- Facts pleaded and facts not pleaded

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

STATUTE OF LIMITATION - Statute of limitation in relation to Land matter.

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

STATUTE –Evidence Act section 135 – Burden of Proof

-Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo (2019) S.H.C

STATUTE – Evidence Act section 138(1) – Proving Beyond Reasonable Doubts.

-Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo (2019) S.H.C

STATUTES - Issurance of Land Use Charge demand notice in the absence of a

Commissioner
-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

STATUTES - Difference between Osun State and States of Osun

-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

STATUTES - Laws enacted by members of State of Osun House of Assembly-

-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

STATUTES -Power of the Governor of a state to appoint Permanent Secretary to

act in office in relation to section 208(1) (2) (c) of the 1999 CFRN-
-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

STATUTES - Power of the Governor of a state to appoint Permanent Secretary to

act in office in relation to section 208(1) (2) (c) of the 1999 CFRN -
-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

STATUTES - Schedule in the Act-

 6
-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

STATUTES - Proper approach of court to interpretation of statutory provisions

-Kanmi Ajibola v. Governor of Osun State & 2ors (2017) S.H.C

TORTS - Trespass and elements of trespass.

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

TORTS - Trespass and action

-Incorporated trustees of African Church v. Chief Dele Oke (2020) S.H.C

TORT AND ACTION - Onus on party who claims damages

-Kunle Rasheed Adegokev. Advertising Practitioners Council (APCON) (2019)
F.H.C

TORT AND ACTION - Claim for aggravated damages

-Kunle Rasheed Adegokev. Advertising Practitioners Council (APCON) (2019)
F.H.C

TORT AND ACTION - General Damage

-Kunle Rasheed Adegokev. Advertising Practitioners Council (APCON) (2019)
F.H.C

WORDS AND PHRASES- Jurisdiction

-Kanmi Ajibola v. G overnor of Osun State & 2ors (2017) S.H.C
 7
INDEX OF NIGERIAN CASES CONSIDERED IN THIS REPORT

Garuba & ors v. Omokhodion & Ors. (2011) 7 SCM Pg. 75 at 105 -Commissioner
of Police v. Mutalabi Raimi
Re: London & Globe Finance Corporation Ltd (1903) Ch. 728- Commissioner of
Police v. Mutalabi Raimi
R. v. Fiving, 15 English & Empire Digest, page 1006- Commissioner of Police v.
Mutalabi Raimi
Muhammed Ibrahim v. The State (2015) 61 NSCQRP 1706 at P. 1745 -
Commissioner of Police v. Mutalabi Raimi
State v. Ogbubunjo (2001) 2 ACLR Vol. W at P. 527 -Commissioner of Police v.
Mutalabi Raimi
Shehu v. The State (2010) 4 SCM, P. 186-Commissioner of Police v. Mutalabi
Raimi
Adebayo v. PDP 2004 4WRN SC 1 Kunle Rasheed Adegoke v. Advertising
Practitioners Council (APCON)
Ardo v. Nyako 2014 42 WRN SC 1- Kunle Rasheed Adegoke v. Advertising
Practitioners Council (APCON)
NMA v. MMA Inc. 2010 4NWLR (Pt. 1185) 613 at 649 - Kunle Rasheed Adegoke
v. Advertising Practitioners Council (APCON)
Brittania U. Nig. Ltd v. Seplat Petroleum Dev. Co. Ltd. 2006 LPELR- 4000 7SC-
Kunle Rasheed Adegoke v. Advertising Practitioners Council (APCON)
INEC v. Asuquo 2018 39WRN SC 61 at 79-80- Kunle Rasheed Adegoke v.
Advertising Practitioners Council (APCON)
Najiofor v. FRN 2018 36WRN 23 at 44- Kunle Rasheed Adegoke v. Advertising
Practitioners Council (APCON)
Phoenix Motors Ltd. V. NPFMB 1993 1NWLR (Pt. 272) - Kunle Rasheed Adegoke
v. Advertising Practitioners Council (APCON)
Gadi v. Male 2010 7NWLR Pt. 1193 at 286 -287- Kunle Rasheed Adegoke v.
Advertising Practitioners Council (APCON)
Obudike v. FRN 20- Kunle Rasheed Adegoke v. Advertising Practitioners
Council (APCON)
Udo v. Asuquo 2006 ALL FWLR (Pt. 307) CA -Kunle Rasheed Adegoke v.
Advertising Practitioners Council (APCON)
McRoyal Limited v. APCON Suit No: CA/L/1140/2016 -Kunle Rasheed Adegoke
v. Advertising Practitioners Council (APCON)
APCON v. Regd. Trustees of International Covenant Ministeterial Council & ors
2020 LPELR CA 3630-Kunle Rasheed Adegoke v. Advertising Practitioners
Council (APCON)
 8
Julius Berger Nig. Plc. V. Ogundehin 2014 NWLR (Pt. 139) 388 (CA) -Kunle
Rasheed Adegoke v. Advertising Practitioners Council (APCON)
Obibowale (Nee Taiwo) v. Caribbean Finance Ltd. 2012 All FWLR (Pt. 627) 730 at
732-Kunle Rasheed Adegoke v. Advertising Pra ctitioners Council (APCON)
Odiba v. Azege 1998 9NWLR (Pt. 566) 370 0r 1998 7SC (Pt. 1) 199 -Kunle
Rasheed Adegoke v. Advertising Practitioners Council (APCON)
Hanseatic Int. Ltd. V. Usang 2002 13NWLR (Pt. 784) 376 -Kunle Rasheed
Adegoke v. Advertising Pract itioners Council (APCON)
Divine Idea Ltd. V. Umoru 2007 All FWLR (Pt. 380) 146 -Kunle Rasheed Adegoke
v. Advertising Practitioners Council (APCON)
Ogiefo v. Isesele 1 2014 20 WRN 55 CA at 120 -Kunle Rasheed Adegoke v.
Advertising Practitioners Council (APCON)
Aiguoregbian & Anor v. The State (2004) 1 SC (pt 1) at 65- The State v. Olayemi
Babatunde Yusuf & 3 ors
Anekwe v. The State (1976) 8-10SC. 255 - The State v. Olayemi Babatunde Yusuf
& 3 ors
Mufutau Bakare v.The State (1987) 1 NWLR (pt. 52) at 579.- The State v. Olayemi
Babatunde Yusuf & 3 ors
Adebayo v. The State (2008) 6ACLR 372 at 395- The State v. Olayemi Babatunde
Yusuf & 3 ors
State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 224 H.- The State v. Olayemi
Babatunde Yusuf & 3 ors
Oyediran v. The republic (1967) NMLR 122 at 12711.28 - The State v. Olayemi
Babatunde Yusuf & 3 ors
Daboh & Ors. V. The State (1977) 5 SC. at 214 - The State v. Olayemi Babatunde
Yusuf & 3 ors.
Ushie v. The State (2018) 5SCM 189 at 198 - The State v. Olayemi Babatunde
Yusuf & 3 ors
Osareven v. RN (2018) 7 SCM 133 at 164-165- The State v. Olayemi Babatunde
Yusuf & 3 ors
Onwudiwe v. FRN (2006) LPELR 2715 (SC) at pg. 53 B-D - The State v. Olayemi
Babatunde Yusuf & 3 ors
Agwuna v. AG. Federation & Anor (1995) LPELR 258 - The State v. Olayemi
Babatunde Yusuf & 3 ors
Abdulgafar Oluwarinu Yusuf v. The State. Unreported Appel No:
CA/AK/205CA/2014 - The State v. Olayemi Babatunde Yusuf & 3 ors
Elvis Ezeani v. FRN ER (2018) SC - The State v. Olayemi Babatunde Yusuf & 3
ors
 9
Bello v. FRN (2018) LPELR 43688 - The State v. Olayemi Babatunde Yusuf &
3 ors
Adeojebi v. The State (2011) 12NWLR pt. 261 pg. 247 at 377 - The State v.
Olayemi Babatunde Yusuf & 3 ors
Aguba v. FRN (2018) 6SCM 1 at 8-9 - The State v. Olayemi Babatunde Yusuf &
3 ors
Ankpogher v. The State (2018) LPELR 43906 - The State v. Olayemi Babatunde
Yusuf & 3 ors
Owolabi Kolade v. The State (2017) LPELR 42362 (SC) - The State v. Olayemi
Babatunde Yusuf & 3 ors
Williams v. The State 1992 SC - The State v. Olayemi Babatunde Yusuf & 3 ors
R. v. Fadina (1958) SCNLR, 250 - The State v. Olayemi Babatunde Yusuf & 3
ors
Odofin v. Ayoola (1984) 15 NSCC 711 - Incorporated Trustees of African
Church v. Chief Dele Oke
Iroagbara v. Ufomadu (2009) 5-6 SC (Pt.1) 83- Incorporated Trustees of African
Church v. Chief Dele Oke
Dada v. Obalalenge & Ors. (2018) LPELR-46186 (CA). - Incorporated Trustees
of African Church v. Chief Dele Oke
Idundun v. Okumagba (1976) 9-10 SC 227 @ 249. - Incorporated Trustees of
African Church v. Chief Dele Oke
Ecobank Nigeria Limited v. Anchorage Leisures Limited& Ors (2016) LPELR-
40220(CA) - Incorporated Trustees of African Church v. Chief Dele Oke
Ehikhametalo v. Iyare (2014) AFWLR (Pt.740) pg.1391 @ 1403. - Incorporated
Trustees of African Church v. Chief Dele Oke
Okijo v. Obioru (2007) ALL FWLR (Pt.365) p.568 @ 580- Incorporated Trustees
of African Church v. Chief Dele Oke
Adepoju v. Oke (1999) NWLR (Pt.594) p.145 @ 163 (G-H); p.164 (E). -
Incorporated Trustees of African Church v. Chief Dele Oke
Esuruoso & ors v. Ogidi (2002) lPELR-12233(CA). - Incorporated Trustees of
African Church v. Chief Dele Oke
Senator Abraham Adesanya v. The President Federal Republic of Nigeria (1981) 1
All NLR (pt.1) 19- Incorporated Trustees of African Church v. Chief Dele Oke
Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669 at 685- Incorporated Trustees of
African Church v. Chief Dele Oke
Fawehinmi v. Akilu (1987) 4 NWLR (pt 67) 797- Incorporated Trustees of
African Church v. Chief Dele Oke
 10
Olorioode v. Oyebi (1984) 5 SC 1- Incorporated Trustees of African Church v.
Chief Dele Oke
Owodunni v. Registered Trustees of CCC (2000) 6 SC (pt III) 60; (2000) 1 WRN
29. - Incorporated Trustees of African Church v. Chief Dele Oke
Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669 at 685; Fawehinmi v. Akilu (1987)
4 NWLR (pt 67) 797- Incorporated Trustees of African Church v. Chief Dele
Oke
Olorioode v. Oyebi (1984) 5 SC 1- Incorporated Trustees of African Church v.
Chief Dele Oke
Owodunni v. Registered Trustees of CCC (2000) 6 SC (pt III) 60; (2000) 1 WRN
29- Incorporated Trustees of African Church v. Chief Dele Oke
Ikeli & Anor v. Agber (2014) LPELR-22653(CA) - Incorporated Trustees of
African Church v. Chief Dele Oke
Bakare & ors v. Ajose-Adeogun & ors (2014) LPELR-25024(SC). - Incorporated
Trustees of African Church v. Chief Dele Oke
U.B.N. Plc v. Ayodare & sons (Nig.) Ltd (2007) 13 NWLR (Pt.1052) 567-
Incorporated Trustees of African Church v. Chief Dele Oke
Lewis Peat v Akhimien 1976 7 SC 157- Incorporated Trustees of African Church
v. Chief Dele Oke
Titiloye v. Olu po (1991) LPELR-32509 (SC) - Incorporated Trustees of African
Church v. Chief Dele Oke
Nasir v. C.S.C., Kano State (2010) 6 NWLR (PT.1190) P.253 at p.276, paras. A –
E- Incorporated Trustees of African Church v. Chief Dele Oke
Elabanjo & Anor. V. Dawodu (2 006) 15 NWLR (Pt.1001) 76; (2006) 6 SCNJ 204;
(2006) 607 SC 24; (2006) All FWLR (Pt.328) 604- Incorporated Trustees of
African Church v. Chief Dele Oke
S.G.F. v. S.G.B. (Nig) Ltd. (1997) 4 NWLR (Pt.497) 8 at 28- Incorporated
Trustees of African Church v. C hief Dele Oke
Abraham Olusegun Bankole & ors v. Emir Industries Limited (2012) LPELR-
19719(CA) - Incorporated Trustees of African Church v. Chief Dele Oke
Williams v. Williams (2008) 10 NWLR (PT.1095) 364 - Incorporated Trustees of
African Church v. Chief Dele Oke
Ogbimi v. Ololo (1993) 7 SCNJ (pt. II) 447 at 454- Incorporated Trustees of
African Church v. Chief Dele Oke
Attor. Gen. Kwara State & Ors v. Raimi Olawale (1993) 1 SCNJ 208 at 221 -
Incorporated Trustees of African Church v. Chief Dele Oke
 11
Ekweozor& ORS. –VS- The Registered Trustees of Saviour Apostolic Church of
Nig. (2014) LPELR-23572(CA) - Incorporated Trustees of African Church v.
Chief Dele Oke
Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) p.38 @ 61- Incorporated
Trustees of African Church v. C hief Dele Oke
Adepoju v. Oke (1999) 3 NWLR (Pt.594) p.154 @ 163-164- Incorporated
Trustees of African Church v. Chief Dele Oke
Obueke v. Nnamchi (2012) 7 SCM p.164 @ 183- Incorporated Trustees of
African Church v. Chief Dele Oke
Egwu v. Egwu (2007) 1 NWLR (Pt. 1014) 71 at 93 paras. D - G (CA) -
Incorporated Trustees of African Church v. Chief Dele Oke
Mrs. Lydia Omoware Thompson & Anor. V. Alh. Jimoh Arowolo (2003) 6 SCM
p.147- Incorporated Trustees of African Church v. Chief Dele Oke
Momodu Olubodun & 4 ORS.v. Oba Adeyemi Lawal & Anor. (2008) 6-7 SC (Pt.1)
1 or (2008) 17 NWLR (Pt.1115) p.1 @ 31-32- Incorporated Trustees of African
Church v. Chief Dele Oke
Odunukwe v. Ofomata & Anor (2010) LPELR - SC.294/2003 @ p.44) -
Incorporated Trustees of African Church v. Chief Dele Oke
Dakolo & Anor V. Rewane Dakolo & Ors (2011) LPFLR -915 (SC) @ 24-25) -
Incorporated Trustees of African Church v. Chief Dele Oke
Dr. Dalhatu Araf v. Mr. Onyedim (2010) LPELR -3797(CA) - Incorporated
Trustees of African Church v. Chief Dele Oke
Adamu v. Leedo Presidential Motel Ltd &Anor(2015) LPELR-25918(CA) -
Incorporated Trustees of African Church v. Chief Dele Oke
Federal Repulic of Nigeria v Bankole (2012)ALL FWLR (PT 629) 1011 at 1153 -
The State v. Raheem Oluwatoyin
The State v Onyekwu (2004) 1711 FWLR Pt(211) 188 at 1425-The State v.
Raheem Oluwatoyin
Okoroa v The State 1990 6 NWLR PT 157 384 AT 401 -The State v. Raheem
Oluwatoyin
Bozin v the state 1985 2 NWLR PT 2 465-The State v. Raheem Oluwatoyin
Idowu Salami v The State 199 2 SC (pt 1) 63-The State v. Raheem Oluwatoyin
Ezekiel Adekunle v The State-The State v. Raheem Oluwatoyin
Commissioner of Police v Ude2012 ALL FWLR 1693-The State v. Raheem
Oluwatoyin
Miller v Minister of Pensions 1947 2 ALL ER372 at 279-The State v. Raheem
Oluwatoyin
Lori v The State 1980 12 NSCC 269 at 279-The State v. Raheem Oluwatoyin
 12
The State v Akpabio 199 4 NWLR Pt (286) 204 at 224-The State v. Raheem
Oluwatoyin
Queen v Iyanda 1960 NSCC 180-The State v. Raheem Oluwatoyin
Adejobi v The State (2011) 12 NWLR (Pt. 261) 247 at 377-The State v. Raheem
Oluwatoyin
Onwudiwe v Federal Republic of Nigeria (2006) 49 WRN 68-The State v. Raheem
Oluwatoyin
Ankpegher v Iyanda (2018) LPELR-43906 SC-The State v. Raheem Oluwatoyin
Akpa v The State (2006) LPELR 760 CA-The State v. Raheem Oluwatoyin
Awopeju v State (2000) 6 NWLR (Pt. 659) 1 at 1 F -G -The State v. Raheem
Oluwatoyin
Rex v Eronini 14 WACA 366 -The State v. Raheem Oluwatoyin
Anwoyi& Ors v Shodeke& Ors (2006) LPELR 502 (SC) -Chief (MRS.) Grace
Fadeyi v. Ganiyu Olawale Adigun Olasupo
Juric Nig. Ltd v UBN Plc (2000) LPELR 1607 (SC) -Chief (MRS.) Grace Fadeyi
v. Ganiyu Olawale Adigun Olasupo
Okechukwu&anor v NWosU (2018) LPELR 44893 (CA) -Chief (MRS.) Grace
Fadeyi v. Ganiyu Olawale Adigun Olasupo
Sakati v Bako (2015) LPELR 24739 (SC) -Chief (MRS.) Grace Fadeyi v. Ganiyu
Olawale Adigun Olasupo
Akingbulu& Ors v Idepefor& Ors (2015) LPELR 25793 (CA) -Chief (MRS.)
Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo
Dongari& 1 Ors v Sa'anu (2013) LPELR 22084 (CA) -Chief (MRS.) Grace Fadeyi
v. Ganiyu Olawale Adigun Olasupo
Akintoye v Folayan (2014) LPELR 24125 (CA) -Chief (MRS.) Grace Fadeyi v.
Ganiyu Olawale Adigun Olasupo
Henshaw v Effang& Anor (2008) LPELR 4075 (CA) -Chief (MRS.) Grace Fadeyi
v. Ganiyu Olawale Adigun Olasupo
Egbe v Adefarasin (1987) 1 NWLR (pt 47) 213-Chief (MRS.) Grace Fadeyi v.
Ganiyu Olawale Adigun Olasupo
Ekelogun v Miri (1991) 2 LRCN 613. -Chief (MRS.) Grace Fadeyi v. Ganiyu
Olawale Adigun Olasupo
Nsiege v Mgbemema (2007) All FWLR (pt 372) 1709. -Chief (MRS.) Grace
Fadeyi v. Ganiyu Olawale Adigun Olasupo
The Administrators of the Estate of Abacha v S.D. Eke-Spiff & 3 Ors (2009) 2 SCNJ
119. -Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo
 13
Texaco Panama Incorporation v Shell PetroleumDev Corp of Nig Ltd. (2002)
LPELR 3146 (SC) -Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun
Olasupo
Dr. Tosin Ajayi v Princess (Mrs.) Olajumoke Adebiyi & Ors (2012) LPELR 7811
(SC). -Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo
Fasheun Motors Ltd v UBA Ltd (1999) LPELR 6620 (CA) -Chief (MRS.) Grace
Fadeyi v. Ganiyu Olawale Adigun Olasupo
Ijebu vs.L.S.P.D.C (1992) LPELR- 1464 (SC)-Kanmi Ajibola v. Governor of
Osun State & 2ors
Adesanya vs. President of the Federal Republic of Nigeria (1981) LPELR-147 SC-
Kanmi Ajibola vs. Governor of Osun State & 2ors
Accord party vs. Governor of Kwara state (2011)) ALL FWLR PT.555) 220 AT
290-Kanmi Ajibola v. Governor of Osun State & 2ors
Ladejobi vs.Oguntayo (2004) LPELR-1734) SC. -Kanmi Ajibola v. Governor of
Osun State & 2ors
Chief Obasanjo vs Alhaji Yusuf (2004) LPELR -2151 (SC) 30-Kanmi Ajibola v.
Governor of Osun State & 2ors
Ebhodaghe vs Okoye 2004) 18 NWLR (Pt. 905) 242. -Kanmi Ajibola v. Governor
of Osun State & 2ors
Obianwuna Ogbunyiya & ors vs. Obi Okudo & ors (1979) LPELR 2295 (SC) at 23-
24, (Paras D-A) -Kanmi Ajibola v. Governor of Osun State & 2ors
Visitor Imo State University vs. Okonkwo& ors (2014) LPELR 22458 -Kanmi
Ajibola v. Governor of Osun State & 2ors
Action Congress& Anor vs. Inec (2007) 12 NWLR (Pt. 1048) 22 at 259-Kanmi
Ajibola v. Governor of Osun State & 2ors
Rt. Hon. Rotimi Chibuike Amaechi vs. Inec& ors (2008) 5 NWLR (Pt. 1080) 227 at
314. -Kanmi Ajibola v. Governor of Osun State & 2ors
Hon. Justice Raliat Elelu-Habeeb (CJ Kwara state) & anor. Vs. The Hon. A.G. of
the Federation & 2 ors (2012) 2 SC Pt.)145-Kanmi Ajibola v. Governor of Osun
State & 2ors
Marwa vs.Nyako (2012) 1 SC (Pt. 111) 44. -Kanmi Ajibola v. Governor of Osun
State & 2ors
Idika vs.Uzonkwu (2008) 9 nwlr (pt. 1091) 34 at 56. -Kanmi Ajibola v. Governor
of Osun State & 2ors
Okwe jiminor vs Gbakejl (2008) 5 NWLR (P1979) 179 at 223- Kanmi Ajibola v.
Governor of Osun State & 2ors
Economides vs Tihomopulous. Co. Ltd (1956) 1 ESC 7OLUBODE VS, OYESINA
(1977) 79- Kanmi Ajibola v. Gove rnor of Osun State & 2ors
 14
Owosho & ors vs. Dada 198) 7 SC 149- Kanmi Ajibola v. Governor of Osun State
& 2ors
Chief Isiah Mba Ejem & ors vs. Chief Ugbor Ofia &ORS (2000) LPELR-6802 (CA)
at 24- Kanmi Ajibola v. Governor of Osun State & 2ors
Nigeria bank plc vs.Solomon owie 2010) 1LPELR-4591 (CA at 20-21- Kanmi
Ajibola v. Governor of Osun State & 2ors
 15
INDEX OF NIGERIAN STATUTES/RULES OF COURT CONSIDERED IN
THIS REPORT

Advance Fee Fraud and other Fraud Related Offences Act 2006The State v.
Olayemi Babatunde Yusuf & 3 ors
Advanced Fee Fraud and other Fraud Related Offences, Osun State 2002The State
v. Raheem Oluwatoyin
Administration of Criminal Justice Laws of Osun StateThe State v. Olayemi
Babatunde Yusuf & 3 ors
Advertising Practitioners (Registration Etc.) Act CAP A7 LFN 2004Kunle Rasheed
Adegoke v. Advertising Practitioners Council (APCON)
Companies and Allied Matters Acts 2014Incorporated Trustees of African
Church v. Chief Dele Oke
Criminal Code Law, Cap 34, Laws of Osun State 2002The State v. Olayemi
Babatunde Yusuf & 3 ors
Criminal Code Law CAP 34, laws of Osun State 2002The State v. Raheem
Oluwatoyin
Criminal Code Law, Cap. 34, Vol. II, Laws of Osun State, 2002 - Commissioner of
Police v. Mutalabi Raimi
Criminal Procedure Law, Cap. 34, Vol. II, Laws of Osun State 2002 -
Commissioner of Police v. Mutalabi Raimi
Evidence Act - Commissioner of Police v. Mutalabi Raimi
Evidence Act-Kunle Rasheed Adegoke v. Advertising Practitioners Council
(APCON)
Evidence Act-Incorporated Trustees of African Church v. Chief Dele Oke
Evidence Act - The State v. Raheem Oluwatoyin
Evidence Act- Chief (MRS.) Grace Fadeyi v. Ganiyu Olawale Adigun Olasupo
Federal High Court (Civil Procedure Rules) 2009Kunle Rasheed Adegoke v.
Advertising Practitioners Council (APCON)
Firearms Act - Commissioner of Police v. Mutalabi Raimi
Limitation Law Cap. 70, 2002, Laws of Osun State Incorporated Trustees of
African Church v. Chief Dele Oke
Limitation Law Cap 70, Laws of Osun State Chief (MRS.) Grace Fadeyi v. Ganiyu
Olawale Adigun Olasupo
 16
INDEX OF BOOKS CONSIDERED IN THIS REPORT

Bryan A. Garher, A Dictionary of Modern Legal Usage, Second Edition, at page 348
- Commissioner of Police v. Mutalabi Raimi

Nigerian Criminal Code Companion by Hon. Justice E. O. FakayodeThe State v.

Olayemi Babatunde Yusuf & 3 ors

Nigerian Criminal Code Companion by Hon. Justice E. O. Fakayode

Incorporated Trustees of African Church v. Chief Dele Oke
 17
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

COMMISSIONER OF POLICE
VS
MUTALABI RAIMI

OSUN STATE HIGH COURT

OSOGBO JUDICIAL DIVISION

HON. JUSTICE O. A. OJO (Presided)

CHIEF JUDGE

SUIT NO. HOS/1CA/2018

MONDAY 3 RD FEBRUARY, 2020

SUBJECT MATTER:

APPEALS- Grounds of appeal

CRIMINAL LAW -Importance of the accused understanding the charge against

him-

CRIMINAL LAW- Burden of Proof

CRIMINAL LAW - False Pretence- Meaning of

CRIMINAL LAW -Ingredients to convict an accused for the offence of false

pretence-

CRIMINAL LAW - What tantamount to Intent to defraud or deceive

 18
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

EVIDENCE- Discrepancy of evidence and charge.

PRACTICE AND PROCEDURE - Amendment of Charge Suo Motu.

PRACTICE AND PROCEDURE - Whether section of the law used in the charge
and for trial of the accused can be changed at Appellate Court-

ISSUE FOR DETERMINATION:

Whether the trial Court rightly discharged and acquitted the Respondent on Counts
1, 2, 3, 4, 5 & 6 having regard to the totality of evidence before the Court?

FACTS:

The Respondent was charged before the Chief Magistrate Court Osogbo on 8th May,
2017, in Charge No. MOS/234C/2017: COP VS. MUTALIBI RAIMI, for the
offences of obtaining by false pretence, fraudulent conversion, conspiracy to commit
assault, assault and unlawful possession of nine Dane guns contrary to Section 419,
390(9) 516A, 356(1) 383 punishable under 390(9) and 428 of the Criminal Code
Law, of Osun State 2002 respectively.
The prosecution's case is that the accused person sometimes in year 2016
fraudulently obtained the sum of ₦200,000.00 from PW1 under false pretence that
he would help PW1 to rent a palm tree plantation farm but he rented the farm
plantation in his own name, and that the accused person with others at large assaulted
PW1. During investigation by the Nigeria Police, it was found out that the accused
person unlawfully has in his possession nine Dane guns, without any license
covering same. At the end of the trial, the Learned Chief Magistrate discharged and
acquitted the Accused/Respondent on all the six counts preferred against him.

HELD:

1. Appeal (Ground of Appeal)-

A ground of appeal should contain precise, clean, unequivocal and direct
statement of decision being attacked. A ground of appeal must give the exact
particulars of the mistake, error or misdirection alleged. As in pleading,
parties are bound by their grounds of appeal and the opponent must
understand clearly what he or she is required to defend in court. [Garuba and
ors v. Omokhodion (2011) 7. S.C.M page 75 at page 105]

2. On whom lies burden of proof in criminal proceedings and consequence of

failure to discharge such burden
 19
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The burden of proof at all times is always on the prosecution. In Sheu v State
2010 4SCM, P. 186 the Supreme Court Per Niki Tobi held "that the burden
of proof in a criminal case is on the prosecution to prove their case beyond
reasonable doubts and where prosecution fails to prove the case beyond
reasonable doubt, the accused must be discharged and acquitted. There are
no two ways about this." In State v Ogunbanjo (2001) 2 ACLR Vol. 11 at
P.527 particularly at page 552 and 558, the Supreme Court per Sylvester Onu
JSC held as follows:
“The burden on the prosecution is to prove the guilt of the
accused in respect of the offence charged beyond reasonable
doubt and that there are no other co-existing circumstances
which will weaken the inference of drawing the guilt of the
accused. It is firmly established that the burden of proof of
guilt of accused in every criminal trial remains on the
prosecution”

3. False Pretence- Meaning of-

A charge of obtaining by false pretense means, knowingly obtaining another
person’s property by means of a mis- representation of fact with intent to
defraud. See Bryan A. Gather, A Dictionary of modern legal usage, second
edition at page 348.

4. Ingredients to convict an accused for the offence of false pretence-

In order to prove the offence of obtaining by false pretense, the prosecution
must be able to establish the following constituent elements.
(i) that a false pretence was made
(ii) That such was made with intent to defraud
(iii)That accused person made the pretence
(iv) That something capable of being stolen was obtained or delivered
thereby
(v) The accused was directly or indirectly a beneficiary of the process.

5. What tantamount to Intent to defraud or deceive-

Intent to defraud means intent to deceive in such a manner to expose any
person to loose. [R v Fiving, 15 English and Empire Digest, page 1006.] In
Re: London & Globe Finance Corp Ltd (1903) CH.728 Buckley J. held thus;
"to deceive is to induce a man to believe that a thing is true which is false
and which the practising person knows or believes to be false. To defraud is
to deprive by deceit, it is deceit to induce man to his injury"
 20
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

6. Attitude of court to discrepancy between a charge and evidence.

In the case of Muhammed Ibrahim v The State (2005) 6, Ns EQRP 1706 at
p.1745 the Supreme Court per K.B AKAA JSC, held that “where there is a
glaring discrepancy between the charge and evidence led and inspite of the
discrepancy, the prosecution did not apply to amend the charge to align with
the evidence adduced to the charge, the charge laid is at variance with the
evidence tendered, the conviction based on it cannot stand.” In the instant
case, the evidence of all the 11 prosecution witnesses is clearly at variance
with the charge.

7. Rationale behind the provision of section 162, 163 and 164 of the Criminal
Procedure Law, Cap. 34, vol. II, Laws of Osun State, 2002 regarding
amendment of Charge Suo Motu: Not a madatory duty of a Magistrate-
I have carefully read the provision and I did not see where it is made
mandatory for the trial magistrate to perform the function that the appellant
wanted to impose on the trial Magistrate. Her sense of fairness as an impartial
arbiter warrants that she holds the scale of justice evenly between the
prosecution and the accused. The duty on the prosecution is that they must
prove their case beyond all doubts and it is not the duty of the court to help
them to do so.

8. Whether section of the law used in the charge and for trial of the accused can
be changed at Appellate Court-
Arraignment and trying of the Respondent under a particular section of the
law and praying thereafter for the Respondent's acquittal to be changed to a
conviction under another section of the law at the Appellate Court is strange
and alien to our criminal legal system.

9. Importance of the accused understanding the charge against him-

Every accused person must know the case he is called upon to plead to and
defend at his trial. In Sheu v The State at Page 205, the Supreme Court per
Fabiyi J.S.C held inter alia that:
"A charge should not be framed in a manner which depicts
that a trap is set to catch the accused. This is to avoid
springing surprise on the accused."
 21
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Nigerian cases referred to in the Judgment:

Garuba & ors v. Omokhodion & Ors. (2011) 7 SCM Pg. 75 at 105
Re: London & Globe Finance Corporation Ltd (1903) Ch. 728
R. v. Fiving, 15 English & Empire Digest, page 1006
Muhammed Ibrahim v. The State (2015) 61 NSCQRP 1706 at P. 1745
State v. Ogbubunjo (2001) 2 ACLR Vol. W at P. 527
Shehu v. The State (2010) 4 SCM, P. 186
Nigerian Statutes referred to in the Judgment:
Criminal Code Law, Cap. 34, Vol. II, Laws of Osun State, 2002
Criminal Procedure Law, Cap. 34, Vol. II, Laws of Osun State 2002.
Evidence Act
Firearms Act

Book referred to in the Judgment

Bryan A. Garher, A Dictionary of Modern Legal Usage, Second Edition, at
page 348.

FULL JUDGMENT
This is an Appeal against the Judgment of Chief Magistrate F. A. SODAMADE,
Chief Magistrate II of the Chief Magistrate Court, Osogbo which was delivered on
the 23rd day of November, 2017. In her judgment, the Learned Chief Magistrate
discharged and acquitted the Accused/Respondent herein on all the six counts
preferred against him. The Prosecution was dissatisfied with that judgment and has
appealed against same to this Court vide the Notice of Appeal dated and filed on 21 st
December, 2017. The said Notice of Appeal alleg ed as follows:

GROUND 1
The lower Court erred in law to have discharged and acquitted the accused person
on the uncontroverted/uncontradicted evidence of the prosecution.

PARTICULARS
There was uncontroverted/uncontradicted evidence that the accused person was in
possession of 9 guns that fall within the prohibited firearms under the Firearms Act.

The evidence of the prosecution as to the identity of the accused persons and the
exhibits is not in conflict.
The Chief Magistrate has jurisdiction to try and convict for the offences as
Constituted.
 22
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

GROUND 2
The Judgment of the Learned Chief Magistrate is altogether unmeritorious,
unreasonable, unwarranted, perverse and cannot be supported having regards to the
totality of evidence adduced before the Court.

The Appellant later filed an amended Notice of Appeal dated 2nd May, 2019 on 3rd
May, 2019 pursuant to the leave of Court so granted wherein a 3rd ground of appeal
was added in the following terms:

GROUNDS 3:
The Judgment of the Lower Court is against the weight of evidence before it.

PARTICULARS OF ERROR
(a) The decision of the learned Chief Magistrate to conclude that there was
no evidence against the accused, in its consequently being discharged
and acquitted was based on extraneous matters and perverse.
(b) The perverse decision of the Learned Chief Magistrate was
tremendously prejudicial to the Appellant and has occasioned a great
miscarriage of justice on the part of the Appellant.
(ii) It is trite in law that what is evident need no further proof while the evidence
in the instance case are facts alluded by the prosecution witnesses.

(iv) A Court must do substantial justice by considering the weight of evidence

in the determination of issues posed to the Court for determination.

Paragraph (ii) of Ground 1 of the Original Notice of Appeal was also amended to
read as follows:

“The Chief Magistrate Court has jurisdiction to try and

convict for the person on the offence of the unlawful
possession of the 9 Dane guns subject to the amendment of
the charge suo motu by the Learned Chief Magistrate."

On the strength of the above Three Grounds of Appeal, the Appellant prayed this
Court to set aside the Judgment of the Learned Chief Magistrate F. A. SODAMADE
of 23rd of November, 2017 and convict the accused person accordingly.

INTRODUCTION OF FACTS
The Respondent was charged before the Chief Magistrate Court Osogbo on 8th May,
2017, in charge No. MOS/234C/2017: COP VS. MUTALIBI RAIMI, for the
 23
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

offences of obtaining by false pretence, fraudulent conversion of the sum of

₦200,000.00 property of Alhaja Falilat Lasisi, conspiracy to commit assault, assault
, on Alhaja Falilat Lasisi, by tightening cloth on her neck, fraudulent conversion of
some kegs full of palm oil worth one million, One Hundred and Sixty Thousand
Naira property of Alhaja Falilat Lasisi and unlawful possession of nine Dane guns
contrary to Section 419, 390(9) 516A, 356(1) 383 punishable under 390(9) and 428
of the Criminal Code Law, of Osun State 2002 respectively.

The prosecution's case is that the accused person sometimes in year 2016
fraudulently obtained the sum of ₦200,000.00 from PW1 under false pretence that
he would help PW1 to rent a palm tree plantation farm but he rented the farm
plantation in his own name.

That the accused person with others at large assaulted PW1 and that upon
investigation by the Nigeria Police the accused unlawfully has in his possession nine
Dane guns, without any license covering same. PW1 Alhaja Falilatu Lasisi gave
evidence, the Accused now Respondent also gave evidence. At the end of the trial,
the Learned Chief Magistrate discharged and acquitted the Accused/Respondent on
all the six counts preferred against him.
ISSUE FOR DETERMINATION

In the Appellant's brief of argument dated 2nd May, 2019, the Appellant raised one
issue for determination, to wit:

Whether the trial Court rightly discharged and acquitted

the Respondent on Counts 1, 2, 3, 4, 5 & 6 having regard
to the totality of evidence before the Court?

The Respondent, in the brief on 14th October 2019, did not raise any new issues
but responded seriatim on law and facts to the sole issue adroitly argued by the
Appellant.

I have read both briefs carefully and will rely on their relevant parts in the course of
this judgment.
Before going into the merit of the issue raised for the consideration of this Court,
it is observed that Ground Three of the Appeal is not sustainable and so should be
dealt with.

GROUND 3:
 24
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The judgment of the Lower Court is against the weight of evidence before it.

PARTICULARS OF ERROR
A. The decision of the learned Chief Magistrate to conclude that there was no
evidence against the accused, in its consequently being discharged and
acquitted was based on extraneous matters and perverse.
B. The perverse decision of the Learned Chief Magistrate was tremendously
prejudicial to the Appellant and has occasioned a great miscarriage of justice
on the part of the Appellant.
C. It is trite in law that what is evidence need no further proof and the evidence
need no further proof while the evidence in the instance case are facts alluded
by the prosecution witnesses.
D. A Court must do substantial justice by considering the weight of evidence in
the determination of issues posed to the Court for determination.
The particulars required to sustain Ground 3 of the Amended Notice of Appeal are
bad in law.
In (i) the extraneous matters considered by the Court below were not highlighted.

In (ii) the prejudicial facts or inferences that rendered the judgment preserve as to
occasion miscarriage of justice or how justice was miscarried are not highlighted.

In (iii) there were more arguments without particulars of the facts alluded by
prosecution witnesses.
In (iv), there were arguments without any particulars in support of the ground 3 of
appeal

A ground of appeal should contain precise, clear, unequivocal and direct

Statement of the decision being attacked. A ground of Appeal MUST give the exact
particulars of the mistake, error or misdirection alleged. As in pleadings, parties are
bound by their grounds of appeal and the opponent must understand clearly what he
or she is required to defend in Court. GARUBA & ORS VS. OMOKHODION &
ORS (2011) 7 SCM Page 75 at Page 105
On account of the above, ground 3 on the Amended Notice of Appeal is incompetent
and is hereby dismissed.

I however do not agree with the submission of the Respondent that the decision
of the Court below on Counts 1, 2, 3, 4 and 5 lumped together with issue on count 6
rendered all arguments in respect of count 6 untenable and incompetent. I refuse to
expunge or discountenance all the argument and Submissions of the Appellant's
 25
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Counsel on the issue in the appeal as argued. Grounds 1 and 2 remain valid and will
be fully considered on the merit based on the only issue raised for determination.
CONSIDERATION OF ISSUE RAISED

Whether the trial Court rightly discharged and acquitted the

Respondent on Counts 1, 2, 3, 4, 5 & 6 having regard to the
totality of evidence before the Court?
It is the Appellants contention that the Learned Trial Court was wrong to have
discharged and acquitted the Respondent on the Six Counts Charge based on the
evidence adduced before the Court. So the entire strength of the appeal relies on the
quantum and quality of evidence adduced at the Lower Court which invariably calls
for a review of the evidence and the determination arrived thereon by the Learned
Chief Magistrate.

The Respondent was charged for the offences of (1) Obtaining the sum of
₦200,000.00 from Alhaja Falilat Lasisi by false pretences, (2) Conspiracy to commit
assault on Alhaja Falilat Lasisi and Assualting Alhaja Falilat Lasisi by tightening
cloth on her neck, (3) fraudulent conversion of some kegs full of palm oil worth One
Million, One Hundred and Sixty Thousand Naira property of Alhaja Falilat Lasisi
and (4) Unlawful possession of nine Guns contrary to Section 419(9), 516A, 356(1),
and 383 punishable under Sections 390(9), and 428 of the Criminal Code Cap 34,
Laws of Osun State, 2002 respectively.

The Prosecution called 11 witnesses and tendered Exhibits A-N and M1 - M9

while the Respondent testified only on his own behalf.
PW1 the complainant referred to as the victim testified that she trades in Palm Oil
and the Respondent's mother was a customer until she died. After her death, the
Respondent promised to supply PW1 with oil and has been doing so. That she
organized an association where people contribute money and the Respondent is a
member too. That PW5 approached her to rent a farmland which was agreed at
₦200,000.00 and the farmland was rented to her and the respondent for 11 years.
When the respondent received his contribution, he returned ₦100,000.00 to
her.Then the Respondent used the farmland for 5 years without rendering any palm
oil to her. Then she told him not to enter the farmland again as she was also going
to reap from the farm for 5 years. The Respondent released the farm to her to be
used for 5 years. Then he approached her husband pleading that she should release
the farm to him. Her husband and his friend pleaded and she released the farm to
him. The first year Respondent brought 20 kegs of oil as they agreed. The second
year he brought 18 and the 3rd and 4h years he did not bring anything. He used to
 26
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

contribute ₦65,000 per week but after he collected the contribution of ₦50,000 he
stopped coming.
According to her, "When he stopped giving me palm oil after, then I got him
arrested with the Police. He then dared me to do my worst and that I would die over
the suit he instituted against me. He went back to the farm. The case was taken to
the Baale who divided the farm into 3 parts saying I should take a portion the accused
person should take a portion and the farm land owner a portion. The farm owner told
us not to enter into his farm land again saying we were underpaying him. Each time
I called to ask him for the money he owed me he would not answer his call. Then
his friend said he had tried his best and I should go ahead to do as I like. At the
Police station, he denied knowing me, my husband and even his friend. Then I
brought out the record of our contribution for over 13 years, then he said he never
deny knowing me, but that he was the only one to whom the farm was rented. The
Police said I should bring my witness from the farm. On my way to the farm while
on Okada, they just held my neck with my head scarf, I sustained brushes on my
neck, it was due to the fact that the Okada rider was a good one, they would have
rolled me on that day.
Under Cross examination, she stated that she paid to the farmer owner. That the
accused person entered the farmland through her. That the farmland was rented to
her while she subleased it to the accused person. That they paid the farm owner the
rent and used the farmland for 11 years. That she was the one who paid for the rent;
that she gave the money to the accused person, that the day he returned ₦100,000.00
back to her the accused called her son as a witness saying the farm jointly rented by
himself and myself he had returned the ₦100,000.00.

She was the leader of the contribution; each week is ₦200,000.00. Yes, I was
the one that gave him ten hands on behalf of the association. Yes, the 10 hands were
his contribution. When Moshood Oyefemi approached me to rent the farm, I did not
turn it down but I said I would send someone to him. Yes, the agreement was not
signed by me. When an action was instituted by the landlord over the land, the
accused person came to me asking me to give the land agreement over the land which
was with me as there was a Court action over the land I gave the agreement to him
because I am aware there was a Court action over the land.I do not have a photocopy
of the agreement with me. I do not know if the land owner has his copy of the
agreement with him. A keg of palm oil in the 11 years ago was ₦1,500. Yes it is true
he reported this case at Oke Odo Police station and I made statement there. It is with
the Police we were not given the statement. Yes there no written agreement between
us that he will be giving me 20 kegs of palm oil. (See last paragraph of page 37-38
of the Record).
 27
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

PW2 Moshood Oyefemi stated in his evidence, he wanted to lease his farm
to PW1 and Abu, PW5 took to her. When we returned back to the farm, I saw the
accused person and he said he would rent the farm from me but since I knew him
through the PW1 to be doing the business, I felt they would rent the farm together.
The accused brought half of the rent which ₦100,000.00, the second time he brought
the remaining balance of ₦100,000.00 at night making ₦200,000.00 I told the
accused that the amount paid to me on the farm land is too low and both PW1, her
son and the accused went to Baale Agodo of Ede Land. Baale ruled that the land be
divided into 3, one for me, one for the Complainant and one for the accused. On the
day the land was to be divided, I went to Baale but I was told the accused person
was looking for me to be arrested and I was arrested at Oke-Baale. I was granted
bail. The following day he brought Court action against me. Judgment was given
that he should use the farm for one year before the farmland revert back to me. That
one year was complete in April this year 2017 and the farmland has reverted back
to me.

PW5 Bakare Tijani stated in his evidence that when PW2 wanted to lease his
farmland to PW1, he took him to her and we returned back to the farm.
PW7 Alhaji Ayowumi Shittu testified that the PW1 is his wife. That his wife
and the accused person's mother were into business of palm oil. After the death of
the accused person's mother the accused person continued doing the business with
my wife.That PW5 told his wife that someone needed money and the person would
like to lease out his land for ₦200,000.00. My wife informed me.I asked if she
wanted to rent the farm alone or together with the accused person. She said she
wanted to invite the accused person because the Ede people used to betray her. That
if she rented it along with the accused person, he would be able to monitor it. I asked
who would pay now she said she would be when it was time for the accused person
to receive contribution the money will be refunded. That PW1 gave the money to
the accused but the accused person did not know the place of the landlord, so she
told Abu PW5 to go with the accused person. They prepared an agreement which
was signed by the parties. The agreement between my wife, the accused person and
the landlord was 11 years' agreement. The accused person used the land for 5 years
when the landlord disagreed with them saying the money paid to him was too small
and so they went to the Police, then reported to the Baale who ruled that the land be
divided into 3. Then the accused person arrested PW2 with Police. He had collected
the land agreement from my wife trickily. At the Police station he won then the PW1
told the accused person not to go back to the farm and said Abu should work on farm
for 5 years. The accused person approached me pleading to be given the farm back
and he will give palm oil to my wife. The PW1 demanded for 25 kegs, he promised
paying 20 kegs the 2nd year was 18 kegs and stopped since then.
 28
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

PW8 Taiwo Dauda testified that he was into palm oil processing, living at
Apena in Owode Ede, he knew the PW1 very well. Yes I know the accused person
too. That PW1 gave the farmland to me. When she was given the farm land, she told
me the accused person was the one monitoring the farmland. He was the one that
showed the palm trees from which I was processing palm oil and the PW1 was
collecting the palm oil. I do not know what accused agreement between them. I was
later sent out of the farm by the PW1 and the following day the PW1 ......told me to
return back to the farm for my work which I did, then accused person came to send
me away again. I had left the farmland and since then I do not know what has been
happening again.

Under Cross examination, he stated all of them are palm oil dealers. He could not
remember the year he got on to the farm, but he worked on it for 2 years. The 1 st
year he gave the PW1 20 kegs of palm oil, the second year he gave 18 kegs, and non
after that.
PW10 Jimoh Muideen testified that he knew PW1 and the accused person. He
knew the 2 of them as business partners. That they jointly borrowed a farmland from
the PW2. PW1 gave ₦200,000.00 to the accused person for him to meet PW2 Abu
so as to pay for the farm, he (the accused person) promised to return ₦100,000 back
to the PW1. At point of the repayment the accused person invited me as a witness
for the the 1st time we went to pick palm oil, we first collect 20D repayment. Kegs,
the 2nd time it was 18 kegs and he stopped going out to collect palm oil after that.
That is all I knew about them. Then the accused person stopped attending meetings.
He made a statement to the Police which was admitted as Exhibit K.
The standard of proof in every criminal case is proof beyond reasonable doubt. See:
Section 135(1) of the Evidence Act. The burden of proof at all times is always on
the prosecution and the standard of proof required is proof beyond reasonable doubt.
In SHEHU VS THE STATE (2010) 4 SCM, P. 186 the Supreme Court per Niki Tobi
JSC held as follows:

"That the burden of proof in a criminal case is on

the prosecution to prove the case beyond reasonable
doubt. Where the prosecution fails to prove the case
beyondreasonable doubt, the accused must be
discharged andacquitted. There are no two ways
about this."
In STATE VS. OGBUBUNJO (2001) 2 ACLR Vol. W at P. 527 particularly at pages
552 and 558, the Supreme Court per Sylvester Onu JSC also held as follows:
 29
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

"The burden on the prosecution is to prove the guilt

of theaccused in respect of the offence charged
beyond reasonable doubt and that there are no other
co-existing circumstances, which will weaken the
inference of drawing the guilt of theaccused. It is
firmly established that the burden of proof of guilt
of accused in every criminal trial remains on the
prosecution."
It is trite that every person who is charged with a criminal offence is presumed
to be innocent until he is proved guilty.
Section 131(1) and (2) of the Evidence Act, 2011 provides that:

"131 (1) Whoever desires any Court to give

judgment, as existence of facts which he asserts
shall prove that those facts exist".
Thus the prosecution, through its witnesses, must prove all the allegations
Contained in the charges against the accused person. A charge or count of Obtaining
by false pretences means knowingly obtaining another person's property by means
of a mis-representation of fact with intent to defraud. See: Bryan A. Garher, A
Dictionary of Modern Legal Usage, Second Edition, at page 348.
Section 419 of the Criminal Code Law, Cap. 34, Vol. II, Laws of Osun State,
2002 similarly provides that -
“ Any person who by any false pretence, and with

intent to defraud, obtains from any other person

anything capable of being stolen, or induces any other

person to deliver to anyperson anything capable of

being stolen, is guilty of a felony and is Iiable to

imprisonment for three years"

In order to prove the offence of obtaining by false pretence, the prosecution must
establish the following constituent elements:

(1) That a false pretence was made

 30
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

(2) The pretence was made with intent to defraud

(3) That accused person made the false pretence
(4) That something capable of being stolen was obtained or delivered thereby
(5)And the accused was directly or indirectly a beneficiary of the proceeds.
Evidence must therefore be led to proof that, in the case on trial,

1. That there was a pretence

2. That the pretence emanated from the accused person
3. That it was a false pretence
4. That the accused person knew of its falsity or did not believe in its truth.
5. That there was an intention to defraud
6. That the pretence is in respect of a thing that is capable of being stolen
7. That the accused person induced the owner to transfer his/her whole interest
in the property.

In R. V. Fiving, 15 English & Empire Diges t, page 1006, it was held that an
intent to defraud means an intent to deceive in such a manner to expose any person
to lose.
In Re: London & Globe Finance Corporation Ltd (1903) Ch. 728, Buckley J. also
held thus:

“to deceive is to induce a man to believe that a thing is

true which is false and which the person practicing the
deceit knows or believes to be false. To defraud is to
deprive by deceit, it is deceit to induce a man to act to
his injury"
Section 383(1) of the Criminal Code Law, Cap. 34, Vol. II, Laws of Osun State,
2002 provides as follows:

A person who fraudulently takes anything capable of

being stolen, or fraudulently converts to his own use
or to the use of any other person anything capable of
being stolen, is said to steal.
Section 383 (2) further provides that:

A person who takes or converts anything capable of

being stolen is deemed to do so fraudulently if he does
so with any of the following intents:
 31
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

1. An intent permanently do deprive the owner of the

thing.
2. An intent permanently to deprive any person who has
any special property in the thing or such property.
3. An intent to use the thing as a pledge or security.
4. An intent to part with it on a condition as to its return
which the person taking or converting it may be unable
to perform.
5. An intent to deal with it in such a manner that it cannot
be returned in the condition in which it was at the time
of the taking or conversion, in case of money, an intent
to use it at the will of the person who takes or convert
it, although he may intend afterwards to repay the
amount to the owner.
In the case of MUHAMMED IBRAHIM VS THE STATE (2005) 61 NSCQRP
1706 at P. 1745, the Supreme Court, per K.B. Akaa JSC, held that where there is a
glaring discrepancy between the charge and the evidence led and inspite of the
discrepancy, the prosecution did not apply to amend the charge to align with the
evidence adduced to the charge, the charge laid is at variance with the evidence
tendered, the conviction based on it cannot stand.
In the instant case, the evidence of all the 11 prosecution witnesses are clearly at
variance with the charge.

The charge in counts 1, 2 and 5 alleged obtaining the sum of ₦200,000.00 from
PW1 by false pretence and fraudulent conversion of same. However, the evidence
of the prosecution witnesses, PW1, PW2, PW5, PW7 and PW8 revealed that both
the PW1 and the accused person knowingly contributed 100,000.00 each to rent a
farmland for a joint PALM OIL Business purpose.

They shared responsibilities in the business. The accused person was to supervise
PW8. They had disagreement as to the proceeds that should come to PW1 and they
reconciled same. The owner of the farm, PW2 had issues with them, the Baale
intervened and partitioned the farm into 3 but the Respondent challenged the
partitioning in Court and won. The Court affirmed that the lease was for 11 years
and the Accused/ Respondent went back to the land for the remaining unexhausted
one year which expired in 2017. PW8 confirmed that he worked on the farm and
what he produced in the first year was 20 kegs and the 2nd year was 18 kegs which
PW1 actually received from the Respondent. Thus, in order to establish fraudulent
conversion, the prosecution must prove the following elements:
 32
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

(a) The ownership of the thing stolen

(b) That the thing stolen is capable of being stolen
(c) The taking or the conversion was fraudulent

There was no iota of evidence whatsoever to support case of Obtaining by false

pretences; Fraudulent conversion of ₦200,000.00 or theft of palm oil. I agree that
no amount of oral evidence given by any of the Appellant's witnesses be it PW1,
PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10 or PW11 can contradict, alter,
vary or explain away the content of Exhibit C. Section 128 (1) of the Evidence Act,
2011 forbids allowing Oral evidence to vary, contradict or altar a documentary
evidence. The content of the Lease of Farm Agreement between the Respondent
herein, and Moshood Oyefemi the PW2 who was the Appellant Star witness during
trial formed the basis of the lower Court's Judgment.

In the case of: SHEU VS THE STATE (2010) 4 SCM Page 180 at page 205
paragraphs B-C the Supreme Court held that:

"It is only where all essential ingredients of an

offence charged have been satisfactorily proved by
the prosecution that same is proved beyond
reasonable doubt".
The totality of evidence led cannot sustain those 3 counts. They are bad in law
and on the facts and the Lower Court was very right in dismissing the counts, and to
have discharged and acquitted the accused/Respondent.

In respect of the counts of Conspiracy to commit Assault and assault on PW1,

the evidence of PW1 was that she was accosted on the bike while she was going to
the farmland to bring her witnesses as requested by the Police. She did not mention
the Respondent in her testimony as the person who assaulted her. The evidence in
the records was that the Respondent reported the case to the Police, the Respondent
also went to Court. No evidence of any violent behaviour was reported or
investigated or testified directly or remotely in connection with the Respondent as
the records showed. None of the other ten prosecution witnesses mentioned the
Respondent either. No one talked about any assault. There was no link of the alleged
assault with the Respondent or with any other person connected to the Respondent
at all. No other person was named or called or investigated in respect thereof. In my
view, the Respondent was rightly discharged on these phantom two counts also.
Now to the acquittal of the Respondent on Count Six.
 33
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The Respondent was charged and tried under Section 428 of the Criminal Code
of Osun State.
That Section provides punishment for unlawful possession of arms belonging
to armed or Police Forces.The charge itself read as follows"

COUNT VI:
That you Mutalibi Raimi "M' sometimes in the month of February, 2017 at Owode
in the aforementioned Magisterial District did unlawful have in your possession nine
dane gun and thereby committed an offence contrary to an punishable under Section
428 of the Criminal Code Cap 34 Vol. II Laws of Osun State of Nigeria 2003".
(Underlining mine).Throughout the trial at the Lower Court, there was not iota of
evidence on record that Exhibits M1-M9 (the Dane guns) belong to the army or
Police. The evidence of Sgt Ade-Ajayi Abiodun is that there was a petition from the
complainant which led to his investigation among other evidence as the investigating
Police Officer. In the course of his investigation he obtained a search warrant
(Exhibit P) and nine Dane guns with one iron rod where recovered from the
workshop of the accused person.

Although the accused did not deny to be in possession of the nine Dane guns
and the iron rod, he said in his evidence that he repairs the guns.
The high ground maintained by the prosecution on this count are that:
(i) There was uncontroverted/uncontracted evidence that the accused
person was in possession of 9 guns that fall within the prohibited firearms
under the firearms Act.
(ii) The evidence of the prosecution as to the identity of the accused person
and the exhibits is not in conflict.
(iii) The Chief Magistrate Court has jurisdiction to try and convict the
accused person on the offence of the unlawful possession of the nine
Dane guns subject to the amendment of the charge suo motu by the
Learned Chief Magistrate.
Appellant has submitted that assuming the law upon which the count was brought is
under wrong law, it is incumbent on the Chief Magistrate to suo motu amend the
charge to justify the nature of the charge against the offence Committed by the
accused person. Refer Your Lordship to Sections 162, 163 and 164 of the Criminal
Procedure Law, Cap. 34, Vol. II, Laws of State, 2002 regarding the discretion of the
Court seeing an imperfect or erroneous charge to do justice to a case before it.
Section 162 and 163 of the Criminal Procedure Law of Osun State, 2002 provides:
 34
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Section 162:

“Where the charge preferred against any person is imperfect of

erroneous the Court may permit or direct the framing of a new charge
or add to or otherwise alter the original charge"
Section 163:

“Any Court may alter or add to any charge at any time before
Judgment is given or verdict returned and ever such alteration or
addition shall be read and explained to the accused "

I have carefully read the above provisions and I not see where it is made mandatory
for the trial Magistrate to perform the function that the Appellant wanted to impose
on the trial Magistrate. Her sense of fairness as an impartial arbiter warrants that she
holds the scale of justice evenly between the prosecutor and the accused. The duty
on the prosecution is that they must prove their case beyond reasonable doubt. It is
not the duty of the Court to help them to do so.

Arraigning and trying the Respondent under a particular Section of the law and
now praying for the Respondent's acquittal to be changed to a conviction under
another Section of the Law at the Appellate Court is also strange and unknown to
our criminal legal system.

Every accused person must know the case he is called upon to plead to and to
defend at his trial.
In the case of SHEU VS THE STATE (SUPRA) at Page 205, the Supreme
Court per Fabiyi JSC held inter alia that:
A charge should not be framed in a manner which depicts that a traps is set to catch
the accused. This is to avoid springing surprise on the accused”
Dane guns are not used by the Police or the Army or any other member of the
armed forces.
In the case of MUHAMMED IBRAHIM VS THE STATE (2015) 61 IN SCQRP
1706 at P. 1745, the Supreme Court per K.B. aka JSC held as follows:

“There is therefore a discrepancy between the location of the

alleged crime (locus criminals) and the evidence led. Inspite of
this discrepancy, the prosecution did not apply to amend the
charge to align with the evidence adduced to the charge.Where
the charge laid is at variance with the evidence tendered, the
conviction of the Appellant will not stand".
 35
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The Prosecution ought to have applied to amend the charge in light of the evidence
adduced at the trial, allow the accused to take a fresh plea on the amended charge,
and the case can proceed to conclusion. That is the procedure known to law and
having failed to do so, the count and evidence led in support of count remain
inconsistent with each other as to render the charge not proved beyond reasonable
doubt. The burden placed by law on the prosecution cannot be shifted to the trial
Court or the accused person. This will not meet the end of justice.

Simply put, the prosecution did not discharge the burden placed on them by law to
prove the count charged. The trial Chief Magistrate was therefore right in
discharging and acquitting the Respondent on Count Six.

In his evidence (pages 24-26), the Respondent as DW1 said he was a blacksmith
engaged in the repair of Dane guns. He maintained that Exhibits M1 - M9(i.e. the
Nine Dane guns) were brought to his workshop by customers for repair.
This fact was wholly corroborated by the evidence of the investigating Police
Officer IPO who testified for the prosecution.

Prosecution as PW1 one Sgt Ade Ajayi Abiodun, admitted at Page 23 of the
records as follows:

“ I am aware that the accused person is a blacksmith. All the guns

were from his workshop and we saw other implements of
blacksmith"
There was no investigation of the ownership of the Dane guns and there was
no evidence that the Respondent is the owner or that the custody is otherwise that as
a repairer, a blacksmith. So the need to amend the charge did not readily look
attractive to the Prosecution and that was very fatal to their case.

On the whole, and having considered all the aspects covered by the single issue
raised for determination, I am of the firm view that this appeal lacks merit. It is
hereby dismissed. I affirm the judgment of His Worship F. A. Sodamade, Chief
Magistrate II, delivered on 23rd November 2017 wherein she discharged and
acquitted the Respondent from the Six Counts in the charge.

Hon. Justice O. A. Ojo

Chief Judge
03/02/2020
 36
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

KUNLE RASHEED ADEGOKE

ADVERTISING PRACTITIONERS COUNCIL

FEDERAL HIGH COURT OF NIGERIA

OSOGBO JUDICIAL DIVISION

HON. JUSTICE P.O LIFU (Presided)

SUIT NO- FHC/OS/CS/39/2018

Tuesday, 28 th May, 2019

SUBJECT MATTER:

ADMINISTRATIVE LAW - Power and mandate of APCON - Advertising

Practitioners Council of Nigeria (APCON)

ADMINISTRATIVE LAW -Power of APCON over non members

TORT AND ACTION - Onus on party who claims damages

TORT AND ACTION - Claim for aggravated damages

TORT AND ACTION - General damage

ISSUES:

1. Whether thedefendant has the power under the Advertising Practitioners

(Registration ETC.) Act to control and/or regulate the activities of, and/or
sanction non- APCON members who do not carry on the business of
 37
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

advertising as a profession but whose advertisement are sourced out to

advertising practitioners.
2. Whether the defendants can prescribe or impose penalties for alleged
violation of the provisions of the Advertising Practitioner (Registration
ETC.) Act on ordinary members of the public.
3. Whether the defendant can prescribe of impose penalties for alleged
commission of offences that are not contained in any written law.
4. Whether the defendant can enforce a penalty for the alleged violation of any
law upon the plaintiff who is not a member of the defendant’s professional
association without a judicial interpretation of such laws by way of order/
judgement of a competent judicial body
5. Whether the defendant can lawfully order the plaintiff, by a public notice, to
remove his property from public place withouta prior opportunity of fair
hearing and/or valid court order to the effect.
6. Whether the defendants act of defacing, subsequently removing,
confiscating and carting away the plaintiffs political campaign banners from
public places without any valid order of a competent court of law is not
unlawful, ultra vires its powers null and void.

FACTS:

The plaintiff, a gubernatorial aspirant under the umbrella of All Progressive

Congress in Osun State of Nigeria engaged the services of one Mr. Wale Alarape
who is a registered member of the defendant to place his campaign posters and bill
boards including banners capturing the intentions and aspirations of the plaintiff.
The standing billboards belong to the advertising agent Mr. Alarape who was
engaged and commissioned by the plaintiff. A notice of violating dated May 14,
2018 was issued and served on the plaintiff through his campaign manager by the
defendant. The notice requested the addresses to cease further exposure of the said
adverstisement immediately and submit for Advertising Standard Panel (ASP) for
vetting and approval within 7 days of receipt of the letter notifying him of the
violention.The Plaintiff through his Solicitor replied the defendant on the 15 th of
May, 2018 wherein he objected to lack of fair hearing before embarking on an
embarrassing disclaimer defacing and indiscriminately decorating the plaintiffs’
campaign boards with removal notices. It is on the basis of the above facts the
plaintiff has approached the court.
 38
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

HELD:

(i) Power and mandate of APCON

By the long title of the Act, Advertising Practitioners (Registration Etc) Act
CAP A Laws of the Federation of Nigeria, the persons affected by this Act
is discernable;
‘An Act to establish a council for Advertising Practitioners
and to make provisions for the control of the practice of the
profession of advertising"
Section 1 (d) of the Act states that the Advertising Practitioners Council of
Nigeria shall be charged with the general duty to regulating and controlling
the practice of advertising.

Section 23 recognise the code of ethics of the advertising profession when it

states, "There shall be established by the council, a panel to be known as
theadvertising standards panel (in this Act referred to as "The Standard
Panel") which shall be charged with the duty of ensuring that advertisements
conform with the prevailing laws of the Federation as well as the code of
ethics of the advertising profession.
Section 23 (4) states: “A decision of the standard panel shall have effect
except when nullified by the Council on appeal.”
The implication of the above is that the Advertising Standard Panel (ASP)
shall exercise powers given to it by the code of ethics and its decisions are
appealable to the advertising council.

(ii) Power of APCON over non members

The provision of the APCON Act and all other subsidiary legislation thereto
are only applicable to members and not the plaintiff in the instant case who
is a non-member. The plaintiff, certainly a politician not engage in the
practice of the profession of advertising cannot be regulated by the provision
of APCON ACT. [Mc Royal Limited vs APCON delivered on 5/7/18 in suit
NO.CA/L/1140/2016, and the case of APCON vs The Regd. Trustees of
International Covenant Ministerial Council 2010 LPELR CA 3630].I hold
that the plaintiff succeeds in not being regulated by the activities of APCON
and the defendants does not have the power under APCON ACT prescribe
penalties for alleged violation of the provision of APCON Act by non
members as in the instantcase
 39
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

(iii)Onus on party who claims damages

He who asserts must prove. This is the trite law by virtue of Section 135-137
of the Evidence Act 2011. On the controversy as to who actually removed,
defaced, destroyed or damaged the bill board belonging to WoleAlarape and
the posters and banners belonging to the plaintiff, the plaintiff in their
supporting affidavit and further affidavit has not shown credible, cogent and
convincing or compelling evidence as to who indeed did the act. He who
asserts must prove. The plaintiff has not equally shown to us by pictorial
evidence in the form of exhibits how the posters, banners and billboards were
defaced, damaged or destroyed. Since there is no document in whatever form
showing the damaged advert. It is pretty unnecessary to proceed to ask
evidence showing the probability of the defendant destroying the billboards
and posters; it is difficult for this court to hold the defendant liable in that
regard.[ Julius Berger Nig. PLC. VS Ogundehin 2014 2 NWLR (Pt. 139)
388(CA) Obibowale (nee Taiwo) v Carribean Finance Ltd 2012 ALL FWLR
(pt 627) p.730 at 732].

(iv) Claim for aggravated damages

For a plaintiff to succeed in claim for aggravated damages, he must not only
shows that the defendant committed the wrongful act complained of, his
conduct must be outrageous, insolent oppressive, malicious, vindictive and
show utter contempt or disregard for the plaintiff and every principle that
activated the conduct of civilized men. [ Odiba v Azege 1998 9 NWLR PT9
5660 370 or 1998 7 SC PT 1 1999].Since the wrongful act of destroying,
defacing, damaging the plaintiff advert has not been shown or proved , it is
therefore improper to award any aggravated damages as claimed.

(v) General damage

As to general damages, since they flow generally from the defendant
wrongful of meddling in the plaintiff’s advertisement when he is not their
member, he is entitled to because general damages are implied by law and
need not be specifically pleaded or proved by evidence. [Hanseatic Int. Ltd
v Usang 2002 13 NWLR pt 784 376]

Nigerian cases referred to in the Judgment:

Adebayo v. PDP 2004 4WRN SC 1
Ardo v. Nyako 2014 42 WRN SC 1
NMA v. MMA Inc. 2010 4NWLR (Pt. 1185) 613 at 649
 40
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Brittania U. Nig. Ltd v. Seplat Petroleum Dev. Co. Ltd. 2006 LPELR - 4000
7SC
INEC v. Asuquo 2018 39WRN SC 61 at 79 -80
Najiofor v. FRN 2018 36WRN 23 at 44
Phoenix Motors Ltd. V. N PFMB 1993 1NWLR (Pt. 272).
Gadi v. Male 2010 7NWLR Pt. 1193 at 286 -287
Obudike v. FRN 20
Udo v. Asuquo 2006 ALL FWLR (Pt. 307) CA
McRoyal Limited v. APCON Suit No: CA/L/1140/2016
APCON v. Regd. Trustees of International Covenant Ministeterial Council
& ors 2020 LPELR CA 3630
Julius Berger Nig. Plc. V. Ogundehin 2014 NWLR (Pt. 139) 388 (CA)
Obibowale (Nee Taiwo) v. Caribbean Finance Ltd. 2012 All FWLR (Pt. 627)
730 at 732
Odiba v. Azege 1998 9NWLR (Pt. 566) 370 0r 1998 7SC (Pt. 1) 199
Hanseatic Int. Ltd. V. Usang 2002 13NWLR (Pt. 784) 376
Divine Idea Ltd. V. Umoru 2007 All FWLR (Pt. 380) 146
Ogiefo v. Isesele 1 2014 20 WRN 55 CA at 120

Nigerian Statutes/Rules referred to in the Judgment:

Advertising Practitioners (Registration Etc.) Act CAP A7 LFN 2004
Evidence Act
Federal High Court (Civil Procedure Rules) 2009

Counsel:
(i) Okunade Esq. - Plaintiff Counsel
(ii) Okorie Micheal Okorie Esq. Defence Counsel

FULL JUDGEMENT:

By an Originating Summons brought pursuant to section 36 of the 1999 constitution

of Nigeria as amended, section 23 of the Advertising Practitioners (Registration
Etc.) Act, order 3 Rule 1, ORDERS 13, 35 (15)of the Federal High Court (Civil
Procedure Rules) 2009 and under the inherent powers of the Honourable Court dated
6/8/2018 and filed on the 7/8/2018, the plaintiff sought and prayed for the
determination of the following questions:
 41
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

1. Whether the defendant has the powers under the Advertising Practitioners
(Registration Etc.), Act to control and/or regulate the activities of, and/or sanction
non-APCON members who do not carry on the business of advertising as a
profession but whose advertisements are sourced out to advertising practitioners

2. Whether the defendant can prescribe or impose penalties for alleged violation of
the provisions of the Advertising Practitioners (Registration Etc.), Act on ordinary
members of the public like the plaintiff who is not a member of the Advertising
Practitioners Council of Nigeria and whose advertisements are sourced out to
another person who carries on advertisement as a professional and member of the
Advertising Practitioners Council of Nigeria

3. Whether the defendant can prescribe or impose penalties for alleged commission
of offences that are not contained in any written law.
4. Whether the defendant can enforce a penalty for the alleged violation of any law
upon the plaintiff who is not a member of the defendant's professional association
without a judicial interpretation of such laws by way of order/judgement of a
competent judicial body.
5. Whether the defendant can lawfully order the plaintiff, by a public notice, to
remove his property from a public place without a prior opportunity of fair hearing
and/or valid court order to the effect.

6. Whether the defendants act of defacing, subsequently removing, confiscating and

carting away the plaintiffs political campaign banners from public places without
any valid order of a competent court of law is not unlawful, ultra vire its powers,
null and void.
Upon the determination of the above questions by the court, the plaintiff claim the
following:

1. A declaration that the defendant does not have the powers under theAdvertising
Practitioners (Registration Etc.), Act to control and/or regulate the activities of,
and/or sanction non-APCON members.

2. A declaration that the defendant cannot prescribe or impose penalties for alleged
violation of the provisions of the Advertising Practitioners (Registration Etc.), Act
by non-members of the Advertising Practitioners Council of Nigeria.
3. A declaration that the defendant cannot prescribe or impose penalties for alleged
commission of offences that are not contained in any written law.
 42
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

4. A declaration that the defendant cannot enforce a penalty for the alleged violation
of any laws upon the plaintiff who is not a member of the defendants professional
association without a judicial interpretation of such laws by a way of order/judgment
of a competent judicial body.

5. A declaration that the defendant cannot lawfully order the plaintiff, by a public
notice or any means, to remove his property from a public place without a prior
opportunity of fair hearing and/or a valid court order to the effect.

6. A declaration that the defendants act of defacing, subsequently removing,

confiscating and carting away the defendants political campaign banners from the
public places and taking same away without any valid order of a competent court of
law is unlawful, ultra vires the defendants powers, null and void.
7. An order of the honorable Court directing the defendant to give a written apology
to the plaintiff to be published in at least 3 national daily newspapers for the injury
caused to his reputation.

8. An order of perpetual injunction restraining the defendant, its agents, privies etc.
from further tampering with the plaintiff’s politi cal campaign property in any
unlawful manners.
9. ₦100,000, 000.(One Hundred Million Naira) as general and aggravated damages.

The applicant relied on 21 paragraphs affidavit deposed to by Muideen Olalekan

Raheem, 4 exhibits and a written address.
In his written address, learned plaintiff counsel A. Okunade Esq. repeated the i6
issues submitted for courts determination and proceeded to proffer answers and
arguments to them seriatim

On issues I and 2, Learned plaintiff Counsel submitted and referred the court to
sections I and 3 of the Advertising Practitioners (Registration Etc.), Act CAP A7
Laws of the Federation of Nigeria 2004 on the powers and function of the body
APCON, and the primary function of the APCON council which is to regulate
Advertising Practitioners.
Counsel urged the court to give an ordinary literal meaning to the provisions of the
Act where there is no ambiguity. Counsel relied on the case of Brittania U. Nig. Ltd
v. Seplat Petroleum Dev. Co. Ltd 2006 LPELR -4000 7 SC, Elder Ikechukwu Amadi
Obuzor vs Hon. Wilson Asinobi Ake 2008 LPELR -4670 CA. Learned Counsel also
referred the court to paragraphs 13, 14 and 17 of the plaintiffs supporting affidavit
and contended that the defendant do not have power to control and sanction the
 43
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

plaintiff who is not their member nor a practitioner of advertisement. The plaintiff,
he contended who has outsourced his advertisement to Mr. Wale Alarape cannot be
punished the way the defendant did to him when he is not subject to their rules and
law as a member of the public.

On issue 3, Learned plaintiff Counsel referred the court to section 36 (12) of the
1999 constitution of Nigeria, the case of Sele vs State 1993 I NWLR (pt 269) 276 at
290, Article 21 of the Nigeria Code of Advertising Practice and sales promotion and
submitted that the defendant act of defacing, destroying and taking away the
advertised materials of the plaintiff is a breach of his right when defendant being not
court of law has no right to give removal order.

On issues 4, 5 and 6 so submitted Learned Counsel the defendant cannot constitute

itself into a judicial body and even went further to be a judge in his own case.
Counsel contended that the act of destroying and removing the campaign material
of the plaintiff amounts to pre-judging him, applying and carrying out punishment
when such allege offence is not written in any law, and portraying him as an offender
before the voting public.

Counsel further urged the court to hold that the removal order and the entire Act of
the defendant against the interest of the plaintiff in the circumstances of this case
amount to usurpation of courts power and ultra vires the defendant and therefore
unconstitutional more so when a punishment was carried out without granting the
plaintiff first to be heard thereb y contravening section 36 of the constitution.

On damages, Learned Counsel relied on the case of NMA vs MMA Inc. 2010 4
NWLR (Pt 1185) 613 at 649. He contended that the injured feelings of the plaintiff,
the manner of committing the breach which falls in the realm of tort is worthy of an
aggravated damages.
The defendant who entered appearance on the 3rd of December 2018 filed a counter
affidavit of four paragraphs and an exhibit. There is a written address where Learned
Defense counsel Okorie Micheal Okorie Esq. formulated five issues for the court
determination as follows: -

1. Whether Article 21 of The Nigerian Code of Advertising, Sales promotion and

other Rights/Restriction on Practice made pursuant to section 29 of the Advertising
Practitioners (Registration Etc.), Act CAP 7 LFN, 2004 3 applies to the plaintiff as
a sponsor and beneficiary of an advertisement within the meaning of Article 0.7 of
The Nigerian Code of Advertising, Sales Promotion and Other Rights/Restriction on
Practice made pursuant to Section 29 of the APCON Act, 2013.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

2. In considering of the community reading of sections 4(1), 45(1) and36 (12) of the
constitution of the Federal Republic of Nigeria 1999.(As amended), sections 7, 23,
Article 7, 21 and 140 (C) of The Nigerian Code of Advertising, Sales Promotion and
Advertising Other Rights/Restriction on Practice made pursuant to section 29 of The
Advertising Practitioners (Registration Etc.), Act CAP A7 LFN,2004, whether the
mere service of Violation Notice on the plaintiff and subsequen t pasting of
REMOVAL NOTICE on a small portion of one out of the several offending
campaign advert/billboard of the plaintiff infringes on the plaintiffs right to fair
hearing or amounts to the usurpation of judicial powers of the court or inconsistent
with any provision of the constitution.

3. Whether the defendant having regards to the provision of section 4(1)and 36 (12)
of the Constitution of the Federal Republic of Nigeria,1999 (as amended) it is
competent for the defendant to create offences and impose penalties as done in The
Nigeria Code of Advertising, Sales Promotion and Other Rights/Restriction on
Practice being a subsidiary legislation.
4. In consideration of the facts of this case and the affidavit evidence before the
Honorable Court in this suit, and in community reading of sections 4(1), 45(1) and
36 (12) of the constitution of the Federal Republic of Nigeria, 1999 as amended)
sections 3, 7, 23 and 29 of the Advertising Practitioners (Registration Etc.), Act CAP
A& LFN, 2004 and Article 0.7, 21 and 140 (c) of the Nigerian Code of Advertising,
Sales Promotion and other Rights/Restriction on Practice, whether the plaintiff is
entitle to any of the reliefs sought in paragraph C of the Originating Summons.

5. On whether the plaintiff in this suit as presently constituted is entitled to the award
of damages either in the sum of ₦100,000,000.00 (One Hundred Million Naira) or
any sum for that matter.
On issue one, Learned Counsel for the defense submitted that by virtue of article 07
of the Nigerian Code of Advertising, Sales promotion and other right/restriction on
practice made pursuant to section 29 of the Advertising Practitioners (Registration
Etc.), Act CAP A7 LFN 2004, the plaintiff being a sponsor and beneficiary of an
advertisement 1S subject to the provision of Article 21 of the Code in question.
Learned Counsel argued further that the plaintiff ought to have submitted his advert
to the Advertising Standard Panel (ASP) since the advert of the plaintiff was an
outdoor product which was a physical channel of communication within the
meaning and ambit of the Article 0.7 of the code in question.
Counsel contended also that by the combine meaning of Articles 0.7 and 140 (c) of
the APCON CODE, the plaintiff who is the sponsor and beneficiary of the a dvert
including the advertising practitioner in person of Mr. Wale Alarape to whom the
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

job was outsourced to are all bound to submit the advert to ASP for vetting. Learned
Counsel urged the court, in interpreting the code and the APCON statute should
consider the intention of the law maker and what mischief the law was meant to cure
as such law ought to be looked into holistically, broadly and not in piecemeal to
avoid absurd conclusions.

Counsel relied on the case of INEC vs Asuquo 2018 39 WRN SC 61 at 79 -80.

Learned Counsel also relied on the case of Najiofor vs FRN 2018 36 WRN 23 at 44
and urged the court to interpret the entire sections 7,23,29 of the APCON Act 2014
and article 7,21 and 140 (c) of the code.
Learned defense counsel also canvassed the fact that since the law regards the
plaintiff as the advertiser, he is subject to submit all his campaign materials to ASP
for vetting. Counsel urged this court to hold that APCON is an agency of the Federal
Government of Nigeria that is revenue oriented for the benefit of the Federal
Government in the interest of the general public. Counsel called in aid of this
submission the case of Phoenix Motors Ltd vs NPFMB 1993 I NWLR (Pt 272).

On issue two, Learned Counsel provided the answer to the question in the negative
citing sections 4 (1), 45 (1), 36 (12) of the constitution of Nigerians amended,
Section 7,23,29 of the APCON Act, Article 7, 21 and 140 of APCON Code: It is
submitted that court is to search for the intention of the law makers in the instant
legislation which 1s to ensure that an advert must be legal, decent, honest, truthful,
respectful and mindful of the Nigerian culture, ensure high sense of social
responsibility, void of misinformation or disinformation as is reasonably justifiable
in a democratic society.

Counsel referred the court to the case of Adebayo vs PDP 2004 4 WRN SCI at 86 -
67 on the need to discover the intention of the legislature in enactment. It is the
argument of the defendant that the plaintiff though an advertising practitioner is
bound by the provision of the APCON Act and APCON Code.

Furthermore, he contended that a service of violation notice, removal notice are not
quasi-judicial functions neither are they summons of a judicial nature. The
defendant, he stated has not breached the fair hearing principle neither has it
destroyed, defaced or carted away the bill boards and adverts of the plaintiff.

The Learned defence counsel contended also that the plaintiff has not shown to the
court through his affidavit evidence how the removal notice or notice of
contravention of APCON Rules has cost him anything neither has he shown before
the court that he lost his gubernatorial candidature of All Progressive Congress by
Virtue of the violation notice or removal notice placed on a small portion of several
 46
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

advert bill boards placed by the plaintiff; Counsel, in that light urged the court to
discountenance the plaintiff submission and resolve issue two in favour of the
defendant.
On issue three, Learned Counsel reiterated his argument on issue two above but
added that the Act and the Code created penalties and punishment which is an
integral part of a legislature binding on all citizens. Counsel urged the court to hold
that by virtue of the Evidence Act section 150 (1) presumption of regularity of the
APCON Code prescribing punishment for offending advert is consistent with
section 36 (12) of the 1999 constitution on the issue of a written law. Counsel relied
on the case of Ogiefo vs Isesele 1 2014 20WRN 55 CA at 120.

On issue four, learned defense counsel submitted that a community reading of all
the relevant aforesaid provisions of the APCON Act and Code clearly justify all the
acts of the defendants in this case and urge the court to regard the plaintiffs claim as
speculative academic and hypothetical. Counsel relied on the cases of Gadi v Male
2010 7 NWLR pt 1193 at 286 287, Obubedike v. FRN 20.

On issue five, Learned Counsel to the defendant stated that the plaintiff is not
entitled to any award of damages as no legal injury has occurred.Damages, he
contended are awarded as restitution to restore the injured party to his previous
position before the breach occurred.
Counsel relied on the case of Udoh vs Asuquo 2006 ALL FWLR (Pt 307) CA.

Counsel finally urged the court to refuse the claim for damages and dismiss the
plaintiffs case for lack of merit.
On the 24th of December 2018, the plaintiff filed a 17 paragraphs further affidavit
and a reply address where he contended that the Code which seeks to regulate non
advertising practitioner, nay members of the public who are not its members is ultra
vires their powers as held by the Court of Appeal in the cases of McRoyal Limited
v APCON Suit No CA/L/1140/2016 delivered on 5/7/2018 where it was held that
APCON powers do not extend to persons who are not advertising practitioners. He
also cited the case APCON v Regd. Trustees of International Covenant Ministerial
Council &Ors 2010 LPELR CA 3630.

Counsel contended further that the placing of removal order on the campaign
banners of the plaintiff amounts to a trespass since the APCON Act and Code
derivable from the Act do not apply to non-advertising practitioners. Counsel
reminded the court that paragraphs 12 to 16 of the further affidavit of the plaintiff
contains facts relating to the removal and carting away of the plaintiffs bill board
and only the defendant, he submitted can be responsible for it since that was the only
 47
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

person who threatened sanction through a notice and upon the 7 days ultimatum, the
bill board and adverts disappeared. Counsel urged the court to invoke the
presumption of liability against the defendant.
On the 18th of January 2019, the defendant filed a 6 paragraphs better and further
affidavit opposing the plaintiffs Originating Summons. Counsel to the defendant
also filed a supporting written address to the further and better affidavit.

In the said written address, learned Counsel contended that the code by all standard
is not illegal neither has it been declared by any competent court of law to be so.
Counsel distinguished the two court of appeal cases cited to buttress plaintiffs legal
position and stated further that the two cases dealt with Funeral Homes and
Religious Adverts which were excluded by the APCON Code. He stated further that
the situation in the instant case involve an agent of the plaintiff called Mr. Wale
Alarape who is a member of the APCON and therefore bound by the provisions of
the APCON Act and the sanctions of the APCON CODE. In the two cases cited
above, Learned Counsel submitted also that the plaintiffs there were fined while the
plaintiff in the instant case is complaining about the enforcement of the code by
placing removal notice, contravention notice and the alleged eventual carting away
of the bill board.

In distinguishing cases, Counsel relied on the Supreme Court decision in the case of
Ardo vs Nyako 2014 42 WRN SCI.
On the issue of defendant act of pasting removal order on the advert and the letter
of notice violation, Learned Counsel reiterated and repeated his earlier argument on
these issues to the effect that the defendant was only carrying out its administrative
and enforcement procedure on their member Mr. Wale Alarape who is the owner of
the bill board. Learned Counsel urged the court to regard paragraph 18 and 20 (i)
(ii) of the supporting affid avit of the Originating Summons and paragraphs ii (iii)
(v) (vi) (xi) (xii) (xii), 14,15 and 16 of the plaintiffs further affidavit all contains
extraneous matters, legal arguments, conclusions which all contravene section 115
of the Evidence Act. Counsel urged the court therefore to strike out the offending
paragraphs.
Counsel finally urged the court to dismiss the plaintiff case as the concept of
presumption of liability is unknown to law.

I have carefully and painstakingly considered the cases presented by the parties. I
have also looked and perused through the supporting affidavits, the judicial and
juristic authorities commended to the court by Learned Counsel to the parties.
 48
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The fact of this case is that the plaintiff, a gubernatorial aspirant under the umbrella
of the All Progressive Congress in Osun State of Nigeria engaged the services of
one Mr. Wale Alarape who is a registered member of the defendant to place his
campaign posters and bill boards including banners capturing the intentions and
aspirations of the plaintiff. The standing billboards belongs to the advertising agent
Mr. Wale Alarape who was engaged and commissioned by the plaintiff. A notice of
violating dated May 14 2018 was issued and served on the plaintiff through his
campaign manager by the defendant. The notice requested the addressee to cease
further exposure of the said advertisement immediately and submit for Advertising
Standard Panel (ASP) for vetting and approval within 7 days of receipt of the letter
notifying him of violation. The plaintiff through his solicitor replied the defendant
on the 15h of May 2018 wherein he objected to lack of fair hearing before embarking
on an embarrassing disclaimer defacing and indiscriminately decorating the
plaintiffs campaign boards with removal notices. The plaintiff in the reply promise
to get across to the defendant through his legal department. It is on the basis of the
above facts the plaintiff has approached this court with several questions for
determination and sundry reliefs on the basis of the fact that the defendant acted
ultra vires and has no legitimate reason to proceed against the plaintiff interest who
is not a registered member of the defendant.

The case of the defendant is that the plaintiff, being the sponsor and beneficiary of
the advertisement is subject to obey the law of the land governing advertisement and
that not complying with the APCON Law and APCON Code is a violation of the
law of the land more so when the registered member of the defendant was the owner
of the bill boards on which the banners, posters bearing the pictures of the plaintiff
was exposed on. The defendant denied liability and went further to say that a rival
political party would have damaged, destroyed, defaced and carted away the
campaign banners and posters of the plaintiff.

I have read and considered the six questions submitted by the plaintiff for the court
determination, as well as the six declarations being sought, the two orders and the
damages of ₦100m being claimed by the plaintiff.

It must be noted in this suit under consideration that both Learned Counsel in their
written submissions are ad idem to the effect that the plaintiff is not a member of the
defendant but his agent Mr. Wale Alarape. The critical courts concern at this point
is to determine first the first and second questions submitted by the plaintiff for the
court determination. The answer to these question shall determine whether or not
other questions are worthy of any consideration.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

In other words, the court answer to the 1st and 2nd question of the plaintiff is the
foundation, pedestal or platform on which all other issues rest in the instant case.
1. ‘Whether the defendant has the power under the Advertising Practitioners
(Registration Etc.) Act to control and/or regulate the activities of, and/or
sanction non-APCON members who do not carry on the business of
advertising as a profession but whose advertisements are sourced out to
advertising practitioners.?’

2. "Whether the defendant can prescribe or impose penalties for alleged

violation of the provisions of the Advertising Practitioners (Registration
Etc.) Act on ordinary members of the public like the plaintiff who is not a
member of the Advertising Practitioners Council of Nigeria and whose
advertisements are sourced out to another person who carries on
advertisement as a professional and members of the Advertising
Practitioners Council of Nigeria?"
By the long title of the Act Advertising Practitioners (Registration Etc) Act CAP
A& Laws of the Federation of Nigeria, the persons affected by this Act is
discernable;

‘An Act to establish a council for Advertising Practitioners and to

make provisions for the control of the practice of the profession of
advertising"

Section I (d) of the Act states that the Advertising Practitioners Council of Nigeria
shall be charged with the general duty to regulating and controlling the practice of
advertising.’
Section 23 recognise the code of ethics of the advertising profession when it states

" There shall be established by the council, a panel to be known as

the advertising standards panel (in this Act referred to as "The
Standard Panel") which shall be charged with the duty of ensuring
that advertisements conform with the prevailing laws of the
Federation as well as the code of ethics of the advertising profession.
Section 23 (4) states:
‘ A decision of the standard panel shall have effect except when
nullified by the Council on appeal.’
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The implication of the above is that the Advertising Standard Panel (ASP) shall
exercise powers given to it by the code of ethics and its decision are appealable to
the advertising council.
Section 24 of the APCON Act sets up a disciplinary committee for any breach by its
members. The sanction to be imposed for such infractions of such rules, regulations
and code of ethics are stated clearly in section 25 (2) of the Act; the punishment
which of course is limited to members includes
a. Striking out the name of the member from the register.
b. Suspension of the member
c. Reprimanding the member
d. Payment of cost or any other sum of money

e. Cautioning the member and other things like handing over of documents,
refund of paid to him, or any other thing as the case may require.
It is obvious from the above rubost penal provisions against the defendants members
that a non-member is clearly excluded from the coverage and perimeters or scope of
the operations of the defendants' Act. This is also supported by the fact that the
Advertising Practitioners (disciplinary Committee Rules, a subsidiary legislation
made pursuance to the provisions of the main Act restrict its application to the
members only).

Exhibit KRAD 3'which is a notice of violation was not addressed to the APCON
member but to the plaintiff who is not their member. The ultimatum was given to
the non member when their member Wale Alarape was known by the defendant.
Section 29 of the Act in question has not by any stretch of imagination or implication
or imputation define the coverage of the Act to include non-member. By some
relevant paragraphs of the defendants further and better counter affidavit deposed to
by Olabisi O.Agberotimi Esq. the defendant stated the following in paragraph 5.

i. That Mr. Wale Alarape, the advertising agent of the plaintiff is an

advertising practitioner.
ii. That the defendant did engage the services of the said Mr Wale Alarape,
an advertising agent for the purpose of hosting his campaign advert on the
bill boards owned and managed by the said Mr. Wale Alar ape.
iii. That he knows as fact that the said Mr. wale Alarape exposes the campaign
advert of the plaintiff across Osun State of Nigeria Without presenting
same for vetting by the ASP of the defendant
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

iv. That he knows as fact that Mr Wale Alarape is a commercial advertising

agent.
v. That he knows as fact that the commercial advertisement activities and
practices of Mr Wale Alarape including but not limited to the erection and
exposure of campaign advert/poster of the plaintiff to the Nigerian public
is regulated by the defendants through The Nigerian Code of Advertising,
Sales Promotion and Other Rights/Restrictions on Practice made pursuant
to section 29 of the APCON Act.
vi. That he knows as fact that Mr. Wale Alarape is familiar with the
regulations and guidelines of the defendant.

The question then is; with all the available facts known to the defendant, why did
they decide to proceed against the plaintiff by writing a violation letter to him and
giving him an ultimatum of 7 days to remove his publication when he is not their
member? The answer is blowing in the mind;
The plaintiff, certainly a politician not engage in the practice of the profession of
advertising cannot be regulated by the provision of APCON Act. In arriving at this
conclusion and reasoning, I am bound by holding of the court of appeal in the cases
of Me Royal Limited vs APCON delivered on 5/7/18 in Suit No: CA/L/1140/2016,
and the case of APCON vs The Regd. Trustees of International Covenant Ministerial
Council 2010 LPELR CA 3630.

The Learned defense counsel has tried to distinguish these cases from the instant
one in his written address but the fact still remains so clearly for that matter that the
plaintiff is not a member of the defendant while the defendant know very well the
name and identities of the owner of the bill board who is their known registered
member. The further and better affidavit of the defendant is unmistaken about this
fact. It will therefore be a travesty of Justice for this court to hold otherwise. Having
held that the provision of the APCON Act and all other subsidiary legislation thereto
are only applicable to members and not the plaintiff in the instant case who is a non-
member, there is no need going to determine the other questioned raised in the
Originating Summons having answered the 1st two questions in the negative.
On the controversy as to who actually removed, defaced, destroyed or damaged the
bill board belonging to Wale Alarape and the posters and banners belonging to the
plaintiff, the plaintiff in their supporting a ffidavit and further affidavit has not shown
by credible, cogent and convincing or compelling evidence as to who indeed did the
act. He who asserts must prove. This is the trite law by virtue of sections 135 - 137
of the Evidence Act 2011. The defendant ha s denied carting away or destroying the
advertisement and the billboards, while alleging possibly political adversaries.
 52
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Exhibit KRADI only shows that the removal order which reads Remove this Advert"
was placed on one of the plaintiffs advert without defacing the facial picture. The
plaintiff has not equally shown to us by pictorial evidence in the form of exhibit how
the posters, banners and billboards were defaced, damaged or destroyed. Any
submission therefore that the alleged removal, carting away, destruction or damagę
was done by the defendant because of the 7 days ultimatum to cease further exposure
of the advert is highly in the realm of suspicion and speculations. Since there is no
documents in whatever form showing the damaged advert, it is pretty unnecessary
to proceed to ask the question as to who did it; in the absence of any conclusive
evidence showing the probability of the defendant destroying the billboards and
posters, it is difficult for this court to hold the defendant liable in that rega rd. See
the cases of Julius Berger Nig. Plc. V Ogundehin 2014 2 NWLR (Pt 1391) 388 (CA)
Obibowale (Nee Taiwo) vs Caribbean Finance Ltd 2012 ALL FWLR (Pt 627) P.
730 at 732.

For a plaintiff to succeed in claim for aggravated damages, he must not only show
that the defendant committed the wrongful act complained of, his conduct must be
outrageous, insolent, oppressive, malicious, high handed, Vindictive and show utter
contempt or disregard for the plaintiff and every principle that activated the conduct
of civilized men. See the case of Odiba Vs Azege 1998 9 NWLR (Pt 566) 370 or
1998 7 SC PtI 199.
ln the instance case, since the wrongful act of destroying, defacing, damaging the
plaintiffs advert has not be shown or proved, it is therefore improper to award any
aggravated damages as claimed.
As to general damages, since they flow generally from the defendant Wrongful act
of meddling in the plaintiffs advertisement when he 1s not their member, he is so
entitled because general damages are implied by law and need not be specifically
pleaded or proved by evidence. See the case of Hanseatic Int. Ltd. Vs Usang 2002
13 NWLR pt 784 376.

An allegation of destruction of property or carting away property operates in the

realm of special damages which must be proved specially and specifically. This is
trite law. See the case of Divine Idea Ltd vs Umoru2007 ALIL FWLR (Pt 380) 1468.

In the absence of any such special proof, the plaintiffs not entitled to any special
damages including any alleged injury to his reputation.
Flowing from the above reassuring and conclusions in this judgment, I hold that the
plaintiffs case succeeds in part as follows.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

1. It is hereby declared that the defendant does not have the power under the
APCON Act to control and regulate the activities nor prescribe penalties for
alleged violation of the provision of APCON Act by non-members as in the
instant case.

2. The defendant is hereby restrained by himself, through his agents, privies,

servant or whosoever may claim through her from further tampering with the
plaintiffs political campaign property in any unlawful manner.

3. Since the defendant has no right to proceed against the plaintiff but against
their member Wale Alarape through their disciplinary panel but decided to
proceed against the plaintiff, I hereby award a sum of One Million Naira (₦1,
000, 000. 00) only against the defendant but in favor of the plaintiff.
4. A cost of Fifty Thousand Naira (₦50, 000.00) is hereby awarded against
the defendant in favor of the plaintiff.
Judgment is entered against the Defendant.

Hon. Justice P.O. Lifu

28/05/2019
 54
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

STATE

V.

A. OLAYEMI BABATUNDE YUSUF

B. AJOKE ADIJAT AKINBOLU
C. SOLIU BADIRU AFOLABI
D. OLAYEMI TAIWO SELIMOT

OSUN STATE HIGH COURT

IKIRUN DIVISION

HON. JUSTICE S. O. FALOLA [presided}

SUIT NO- HIK/1C/2018

Thursday 5th DECEMBER, 2019

SUBJECT MATTER:

CRIMINAL LAW - What amounts to prove beyond reasonable doubt

EVIDENCE - Burden of proof in criminal matters

CRIMINAL LAW - Elements of conspiracy

CRIMINAL LAW - Elements of false pretence

CRIMINAL LAW - Beneficiary of crime

ISSUES FOR DETERMINATION:

(a) Whether the prosecution has succeeded in establishing the ingredients of

the offences charged in order to prove the guilt of the Defendants beyond
reasonable doubt.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

(b) Whether the 4thdefendant person is linked with the ingredientsof the
alleged offences charged.
(c) Whether the court can grant a conviction and sentence based on evidence
unsupported by facts disclosed in the particulars of offences in the
charge.

FACTS:
The four accused persons were arraigned on an eleven counts charge bothered on
conspiracy to obtain property by false pretences, stealing, conspiracy to murder and
threatening life. The charges were brought under Section 1(3) and 1(i) a and 1(3) of
the Advance Fee Fraud and other Fraud Related Offences Act 2006 and Sections
390(9), 324 and 86(2), Criiminal Code Law, Cap 34, Law of Osun State. The case
put forward by the prosecution is that, the 1st Defendant, Olayemi Babatunde Yusuf
is the trusted hand through which the company, Wakman Golden Heritage Ltd
carries out its business operations in Cotonou, though its headquarters is at No. 9A,
Oyedokun Street, Ikirun. Sometimes between August 2017 and September 2017, the
1st Defendant received the mandate of the company and its promoter to proceed to
Cotonou to carry out business as the usual practice. The company and by implication
the promoter had agreed with the 1st Defendant to transfer a sum of ₦38 million
from Nigeria to the two Bureau de change, to pay for the goods supplied by the
customers in Cotonou. The 1st Defendant conspired with the 2nd Defendant to
defraud the company while the 2nd Defendant in turn conspired with the 3rd
Defendant who happens to be her husband. The 4th Defendant (and wife of the 1st
Defendant) had been receiving huge sums of money from the 1stDefendant and
expending the money on certain real property. The defendants in their defence
denied the allegations against them. The 1st Defendant stated that with respect to the
money transferred (₦38 million), that he spent the money to settle the bill of one
Madam Savalo, from whom the company had earlier been indebted to although the
promoter of the company was not informed about the debt owed Madam Savalo.
That he did not convert or steal the sum alleged. That he did not conspire with any
of the other accused to perpetrate fraud in his place of work either in Nigeria or in
Cotonou.
The 2nd Defendant denied being involved in any immoral dealings with the 1st
Defendant. That they are business partners while the 3rd Defendant, Soliu Badiru
Afolabi denied ever knowing the 1st Defendant that his business partners deposited
money found in the account of his wife, the 2nd Defendant because he does not have
personal bank account. That he used to make between ₦5million to ₦10million each
time he was employed by theatre practitioners to carry out setting and effect in the
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

course of shooting films. The 4 th Defendant testified that she acted on the
instructions of her husband, 1st Defendant.

HELD:

1. Whose responsibily to prove the guilt of an accused person-

To prove the guilt of an accused on any of the counts charged, the burden
lies on the head of the prosecution to prove the case convincingly enough to
clear any or all forms of doubts. [ Aiguoregbian& Anor V. The State 2004,
1 S.C PT 1 at 65, Anekwe V The State 1976 8-10 SC.255 and Muftau Bakare
V. The State 1987 1 N.W.L.R Pt. 52 at 579]. The law goes further to establish
that the parameta of prove beyond reasonable doubt does not imply that the
prosecution must prove the case beyond every shred of doubt.

2. “Prove beyond reasonable doubt” and “Prove beyond unreasonable doubt”-

There is a world of difference between “prove beyond reasonable doubt” and
its corollary- “prove beyond unreasonable doubt.” Doubts which are
farfetched, inconsequent and capable of being ignored without negative
repercussion to the case of the Defendants do not fall into the category of the
hurdle of “proof beyond reasonable doubt” which the prosecution must
necessarily surmount.[Adebayo v The State(2008) 6ACLR 372 at 395, and
State v Akpabio (1993) 4NWLR (Pt.286)204 at 224H.]

3. What amounts to conspiracy

Conspiracy is an agreement to prosecute an unlawful purpose. The most
important element is the meeting of the mind of the conspirators. The
conspirators do not have to have to meet physically or know each other or
communicate. It does not matter that all of the conspirators must set out at
the same time to prosecute the unlawful purposes. The consipirator may
engage in omission to act or commission to act. In all these, the end result
will give the same result: Prosecution of an unlawful purpose to gain
advantage or confer advantage on a person of another.

4. The effect of the ingredient of “whether the conspirators directly

communicate with each other at a particular place and time and enter into an
agreement with common design” as state in the case of Oyediran v. The
republic (1967) NMLR 122 at 12711.28 and the case of Daboh & Ors. V.
The State (1977) 5SC at 214.-
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The only problem with the ingredients in the two cases is that the ingredient
is not forward looking enough to see that in contemporary world,
communication between persons has become so fluid as to breakdown
distance and boundaries and has reduced boundaries below one second.
[Ushie v. The State 2018 5SCM 189 at 198, and Osareven v. RN (2018) 7
SCM 133 at 164-165.] At any rate the trio need not be present or know or
converge at the place mentioned before the conspiracy, in view of the
specific principles of law laid down in the cases earlier sited, See also
NJOVENS’S CASE which is the locus classicus- (1973) LPELR 2042 (SC).

5. What amounts to false pretence-

The definitions of and ingredients of the offence of obtaining un der false
pretence is well and comprehensively captured by NIKKI TOBI J.S.C , in
the case of ONWUDIWE v F.R.N(2006) LPELR 2175(SC) AT PG. 53 B -D.

6. Can a benefactor of a fraudulent action be guilty?

Everyone that benefitted from the slush fund is as guilty as the 1st Defendant
that was directly involved in receiving all funds and managing the office and
ware house where the fund took place (in Cotonou). [In AGWUNA v
A.G.Federation & ANOR (1995) LPELR 258 and the unreported Appeal
No.CA/AK/205CA/2014,AbdulgafarOluwarinnu Yusuf v. The State
delivered on 8thDecember, 2017, it was held that a co-conspirator who
received a sum of money into his account but claimed he was not aware that
it was a proceed of crime is as guilty as the main offenders.] Section 7
Criminal Code makes all parties to be liable in equal proportion.

Nigerian cases referred to in the Judgment:

Aiguoregbian & Anor v. The State (2004) 1 SC (pt 1) at 65
Anekwe v. The State (1976) 8-10SC. 255
Mufutau Bakare v.The State (1987) 1 NWLR (pt. 52) at 579.
Adebayo v. The State (2008) 6ACLR 372 at 395
State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 224 H.
Oyediran v. The republic (1967) NMLR 122 at 12711.28
Daboh & Ors. V. The State (1977) 5 SC. at 214
Ushie v. The State (2018) 5SCM 189 at 198
Osareven v. RN (2018) 7 SCM 133 at 164-165
Onwudiwe v. FRN (2006) LPELR 2715 (SC) at pg. 53 B-D
Agwuna v. AG. Federation & Anor (1995) LPELR 258
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Abdulgafar Oluwarinu Yusuf v.The State. Unreported Appel No:

CA/AK/205CA/2014
Elvis Ezeani v. FRN ER (2018) SC
Bello v. FRN (2018) LPELR 43688
Adeojebi v. The State (2011) 12NWLR pt. 261 pg. 247 at 377
Aguba v. FRN (2018) 6SCM 1 at 8-9
Ankpogher v. The State (2018) LPELR 43906
Owolabi Kolade v. The State (2017) LPELR 42362 (SC)
Williams v. The State 1992 SC
R. v. Fadina (1958) SCNLR, 250

Nigerian Statutes referred to in the Judgment:

Advance Fee Fraud and other Fraud Related Offences Act 2006
Criminal Code Law, Cap 34, Laws of Osun State 2002
Administration of Criminal Justice Laws of Osun State

Book referred to in the Judgment

Nigerian Criminal Code Companion by Hon. Justice E. O. Fakayode
Counsel:
Abiodun Badiora AG & PT with Omotayo
Babalola ACSC and Idris Mickamheel.
Principal State Counsel for Prosecution.
Alh.Adekola Kareem witn Ekpono E. for all the Accused.

FULL JUDGEMENT:
The four accused persons were arraigned before this court on 7/2/2018 on an eleven
counts charge. The charges bother on conspiracy to obtain property by false
pretences, stealing, conspiracy to murder and threatening life. The charges were
brought under Sections 1 (3) and 1 (i) a and 1(3) of the Advance Fee Fraud and other
Fraud Related Offences Act 2006 and Sections 390(9), 324 and 86(2),Criminal Code
Law, Cap 34, Laws of Osun State 2002. Specifically, the eleven counts charge reads
as follows:

“ Count I : Conspiracy to commit an offence contrary to Section B(a) and punishable

under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act.
2006.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Particulars of Offence:
OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU 'F', SOLI U
BADIRU AFOLABI 'M OLAYEMI TAIWO SELIMOT F' and others at large
sometimes between 29 August, 2017 and 7th September, 2017 Wakman Golden
Heritage Ltd. with head office at 9a Oyedokun Street, Ikirun in Osun State, within
Ikirun Judicial Division did conspire to commit offence to wit; obtaining property
by false pretence with intent to defraud.
Count II: Obtaining property by false pretence contrary to section 1(1)a and
1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.

Particulars of Offence
OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU ‘F’,
SOLIU BADIRUU AFOLABI 'M OLAYEMI TAIWO SELIMOT'F and others at
large sometimes in the month of May 2017 at Wakman Golden Heritage Ltd. with
head in Osun State, within Ikirun Judicial Division with intent to defraud did obtain
40 (forty) metric tons of cashew nuts valued at ₦26,000,000 (Twenty Six Million
Naira) belonging to Wakman Golden Heritage Ltd. with the false pretence that the
cashew nuts are being processed for export to the Company's customer.

Count III : Obtaining property by false pretence contrary to section 1(1)(a) and 1(3)
of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.

Particulars of Offence:

OLAYEMI BABATUNDE YUSUF 'M, AJOKE ADIJAT AKINBOLU 'F, SOLIU

BADIRU AFOLABI M OLAYEMI TAIWO SELIMOT 'F' and others at large
sometimes in the month of August, 2017 at Wakman Golden Heritage Ltd. with head
office at 9aOyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division
with intent to defraud did obtain 18 (Eighteen) metric tons of cashew nuts valued at
₦11,700,000 (Eleven Million, Seven hundred thousand Naira) belonging to
Wakman Golden Heritage Ltd. and replaced them with waste cashew nuts and small
stones, with the false pretence that the cashew nuts are being processed for export
to the Company's customer. Obtaining property by false pretence contrary to section
1(1)(a) and 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act,
2006.
Count IV: Obtaining property by false pretence contrar y to section 1(1)a and
1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Particulars of Offence:
OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU F', SOLIU
BADIRU AFOLABI M' OLAYEMI TAIWO SELIMOT F' and others at large on or
about 29th August, 2017 at Wakman Golden Heritage Ltd. with head office at 9a
Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division with intent to
defraud did obtain the sum of N10, 000,000 (Ten million naira) from Wakman
Golden Heritage Ltd. With the pretence of using the amount to pay for cashew nuts
meant for export to the Company's Customer.

Count V: Obtaining property by false pretence contrary to section 1(1) and

1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.

Particulars of Offence:
OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU 'F, SOLIU
BADIRU AFOLABI 'M OLAYEMI TAIWO SELIMOT 'F' and others at large on
or about 9 September, 2017 at Wakman Golden Heritage Ltd. with head office at 9a
Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division with intent to
defraud did obtain the sum of ₦28,000,000 (Twenty Eight Million Naira) from
Wakman Golden Heritage Ltd. with the pretence of using the amount to pay for
cashew nuts meant for export to the Company's customer.
Count VI: Stealing contrary to Section 390(9) of the Criminal Code Law Cap
34 Laws of Osun State, 2002.
OLAYEMI BABATUNDE YUSUF 'M, AOKE ADIJAT AKINBOLU F, SOLIU
BADIRU AFOLABI 'M' OLAYEMI TAIWO SELIMOT F and others at large
sometimes in the month of August, 2017 at Wakman Golden Heritage Ltd. with head
office at 9a Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Div ision
did steal 40(forty) metric tons of cashew nuts valued at ₦26,000.00 (Twenty Six
Million Naira) property of Wakman Golden Heritage Ltd.

OLAYEMI BABATUNDE YUSUF 'M, AJOKE ADIJAT AKINBOLU F, SOLIU

BADIRU AFOLABI 'M' OLAYEMI TAIWO SELIMOT F and others a t large
sometimes in the month of August, 2017 at Wakman Golden Heritage Ltd. with head
office at 9am Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division
did steal 18 (Eighteen) metric tons of cashew nuts valued at ₦11,700.000 (Eleven
Million,Seven Hundred Thousand Naira ) property of Wakman Golden Heritage
Ltd.
Count VIII: Stealing contrary to Section 390(9) of the Criminal Code Law
Cap 34 Laws of Osun State, 2002.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU "F, SOLIU

BADIRU AFOLABI 'M’ OLAYEMI TAIWO SELIMOT ‘F' and others at large on
or about 29th August, 2017 at Wakman Golden Heritage Ltd. with head office at 9a
Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division did steal the
sum of ₦10,000,000 (Ten Million Naira) property of Wakman Golden Heritage Ltd.
Count IX: Stealing contrary to Section 390(9) of the Criminal Code Law Cap
34 Laws of Osun State, 2002.

OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU 'F', SOLIU

BADIRU AFOLABI 'M OLAYEMI TAIWO SELIMOT F and others at large on or
about 7th September, 2017 at Wakman Golden Heritage Ltd. with head office at 9a
Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division did steal the
sum of ₦28, 000, 000 (Twenty Eight Million Naira) property of Wakman Golden
Heritage Ltd.
Count X: Conspiracy to murder contrary to Section 324 of the Criminal
Code Law Cap 34 Laws of Osun State, 2002.
OLAYEM1 BABATUNDE YUSUF 'M, AJOKE ADIJAT A KINBOLU F, SOLIU
BADIRU AFOLABI 'M' OLAYEMI TAIWO SELIMOT 'F and others at large on
or about 7th September, 2017 at Wakman Golden Heritage Ltd. with the head office
at 9a -6 Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division did
conspire to murder Oduwoye Waheed Adebowale.
Count XI: Threatening violence contrary to Section 86(2) of the Criminal
Code Law Cap 34 Laws of Osun State, 2002.
OLAYEMI BABATUNDE YUSUF 'M', AJOKE ADIJAT AKINBOLU F, SOLIU
BADIRU AFOLABI 'M' OLAYEMI TAIWO SELIMOT F and others at large on or
about 9 September, 2017 at Wakman Golden Heritage Ltd. with head office at 9a
Oyedokun Street, Ikirun in Osun State, within Ikirun Judicial Division with intent to
intimidate and alarm Oduwoye Waheed Adebowale ' threatened him through phone
calls that he will be killed for demanding from them his Company's money and
goods worth ₦75,700,000 (Seventy Five Million, Seven Hundred Thousand Naira)
fraudulent converted by him."
The case put forward by the prosecution is that, the 1st Defendant is a member
of staff of a trading company known as Wakman Golden Heritage Ltd, with
headquarters at No. 9A, Oyedokun Street, Ikirun. The name of the promoter and
alter ego of the company is Oduwoye Waheed Adebowale. Operates both in Nigeria
and Cotonou, in Benin Republic engaged.The company is engage in (buying and
selling of) cocoa, cashew and soya beans in both countries, and export the products
for sale at international markets. The 1st Defendant, Olayemi Babatunde Yusuf is
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

the trusted hand through which the company, Wakman Golden Heritage Ltd carries
out its business operations in Cotonou.
The procedure adopted by the Company and its promoter is that, the 1st
Defendant, assisted by other allied staff in Cotonou will purchase the items from
customers who supplied them to the ware house. The produce would be weighed
and the price would be communicated to the company and its promoter in Nigeria.
The company and its promoter will then cross check the facts, and upon being
satisfied, will then transfer the value of the produce to the customers through either
of the two Bureau De Changes known as
1) Muniru Obami Adigun Bureau de Change
2) Rachael Asogba Bureau de change
both of them operating in Cotonou. The 1st Defendant would then lead the
Customers that supplied the produce to either of the two Bureau de change through
whom the money transfer was made from Nigeria to collect their money as
confirmed by the company. The customers will then be paid in local currency known
as CFA francs. That was the arrangement between year 2016 and 2017.
Along the line, sometimes between August 2017 and September 2017, the 1st
Defendant received the mandate of the company and its promoter to proceed to
Cotonou to carry out business as the usual practice. The company and by implication
the promoter had agreed with the 1st Defendant to transfer a sum of ₦38 million
from Nigeria to the two Bureau de change, to pay for the goods supplied by the
customers in Cotonou. The 1st Defendant then hinted the 2nd Defendant Ajoke Adijat
Akinbolu, who appeared to be a girl friend and business partner of the 1st Defendant
that he (the 1st Defendant) was expecting a large sum of money from Nigeria, and
that, the 2nd Defendant Ajoke Adijat Akinbolu should help the 1st Defendant to keep
the money and then find means to deprive the company and its promoter Oduwoye
Waheed Adebowale permanently of the money. The 2nd Defendant assured the 1st
Defendant of doing so.
The 2nd Defendant in turn informed the 3rd Defendant, Soliu Badiru Afolabi about
the money that was being expected, and how they would assist the 1st Defendant to
convert the money, apparently without disclosing the details of her (2nd Defendant's
filial) relationship to the 3 rd Defendant who is her husband
Finally, when the Bureau Du Change received the money transferred from
Nigeria the 1st Defendant was informed. However, contrary to the normal procedure
of leading the customers to the Bureau de change, to collect their money directly,
the 1st Defendant assembled the customers at the Warehouse and instructed them to
wait while he proceeded to collect the money from Bureau de change and return to
the Warehouse to pay the customers. On getting to the Bureau de change, rather than
collecting the equivalent of ₦38 million in CFA Francs, the 1st Defendant insisted
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

on collecting the money in United States of America dollars (USD) equivalent of

(₦38 million). He was paid in United States of America dollars as requested by him.
Upon collecting the money in dollars, rather than return to the Warehouse where the
customers/suppliers were waiting the 1st Defendant vanished and remained
incommunicado for a while, shutting between Lagos, Abeokuta and lbadan, all in
Nigeria. In the process, he handed over the money for rather part of it to the 2 nd
Defendant or safe keeping, as earlier arranged. The 2nd Defendant too informed the
3rd Defendant about the arrival of the money that was being expected. However,
rather than keep the money for the 1st Defendant, both the 2nd and 3rd Defendants
opted to convert the money to their own use.They went for jewelries. They improved
on their house under construction. On a particular day, they heard that one prominent
Fuji musician, Wasiu Alabi Pasuma was in town to entertain. Though not invited,
the duo of the 2nd and 3rdDefendants (who are a couple) chose the occasion to
announce their new status: they expended a princely sum of ₦500,000 at the party.
A lucky man once gave them an advice. In return, they appreciated him with a
modest sum of ₦1million.
Back to the Warehouse of the company in Cotonou. The suppliers waited on end;
without seeing the 1st Defendant or getting paid. There was turmoil, frustration and
major crisis. The information reached the promoter of the company, Oduwoye
Waheed Adebowale, who had travelled outside the country that the 1stDefendant had
vanished with the ₦38 million he transferred to the customers in Cotonou. He rushed
back home. He made frantic efforts to reach out to the 1 st Defendant to find out what
might have happened. He did not succeed. The search for the 1st Defendant began.
Somehow, the unfortunate incident got to the listening ear of the father of Oduwoye
Waheed Adebowale.The father's health developed complications immediately. The
old man died in the process. The mother of the 1st Defendant, and his wife, (who
turned out to be 4th Defendant), Olayemi Taiwo Selimot were contacted. The
Directorate of State Service (DSS) and the Police were alerted. In the heat of all
these, the 1st Defendant managed to reach out to the 4th Defendant through an
unusual telephone line. When the heat was too much on the 4th Defendant, the 1st
Defendant offered to meet her at a location in lbadan. After the meeting, the 4 th
Defendant lured the 1st Defendant to Ikirun, where the Security agencies arrested
him. And through various pieces of information provided by the 1st Defendant, other
accused persons were arrested and charged to court.
Meanwhile, other acts pertaining to other frauds perpetrated by the Defendant in
the supply and purchase of bad cashew products before the incident of ₦38 million
were revealed in the course of investigation. When investigation was going on,
Oduwoye Waheed Adebowale received death threat through his telephone that, he
should drop the case or be killed. The threat message was The 4th Defendant (and
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

wife of the 1st Defendant) who had been receiving huge sums of money from the 1st
Defendant and expending the money on certain real property was also arrested and
charged, based on the manner and conduct of such later traced by the security
agencies to the 2nd and 3rd Defendants. The 4th purchases vis-à-vis the known
income of the 1st Defendant, her husband.
However, the defence has a slightly different account of what actually transpired,
all pointing out to the effect that they did not commit any of the offences alleged.
The 1st Defendant claimed that he was indeed a worker with Wakman Golden
Heritage Ltd. promoted by Oduwoye Waheed Adebowale. That the was in charge
of loading and transporting goods from Nigeria Office at Ikirun to Lagos for export,
especially whenever the Cotonou Office was off season. That he used to make extra
money in the course of leading trailer loads of cocoa from the warehouse at Ikirun
to seaports in Lagos. That even in Cotonou, he was good to the local and foreign
business partners such that they reward him handsomely most of the time.
That with respect to the money transferred (₦38 million), he spent the money to
settle the bill of one Madam Savalo, from whom the company had earlier been
indebted to although the promoter of the company was not informed about the debt
owed Madam Savalo. That he did not convert or steal the sum alleged. That he did
not conspire with any of the other accused to perpetrate fraud in his place of work
either in Nigeria or in Cotonou.
The 2nd Defendant denied being involved in any immoral dealings with the 1st
Defendant. That they are business partners through the sale of jute bags for packing
cashew nuts and other produce. That she also assisted the 1st Defendant to translate
the local language in Cotonou to the language the 1st Defendant understands in the
course of engaging in business transaction in Cotonou. That the money found in her
account were deposits made by the customers/clients of her husband, the
3rdDefendant. That she is also into the business of play acting, apart from engaging
in trans-border business of buying and selling between Cotonou and Lagos. That the
vehicle, jewelries and the house under construction which the Prosecution alleged
were procured with illicit fund that is, proceeds of the crime were actually funds
generated from her sweat.
The 3rdDefendant, Soliu Badiru Afolabi denied ever knowing the 1stDefendant
or Oduwoye Waheed Adebowale, and has never been to Ikirun, the headquarter of
Wakman Golden Heritage Ltd. That his business partners deposited money found in
the account of his wife, the 2nd Defendant because he does not have personal bank
account. That he used to make between ₦5million to ₦10million each time he was
employed by theatre practitioners to carry out setting and effect in the course of
shooting films. That he is a household name in theatre industry, as such, would never
engage in any shady deal. That he did not conspire with the 2nd Defendant in
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

particular or indeed any of the other Defendants, either to defraud Oduwoye Waheed
Adebowale, and his company steal his money. That he did not threaten Oduwoye
Waheed Adebowale with death through telephone call or presented himself as a
spiritualist to him. That he was surprised to have been arrested on account of the
alleged crime which he knew nothing about.
The 4th Defendant, Olayemi Taiwo Selimot, disclosed that she is the wife of the
1st Defendant. That she use to buy and sell soft drinks. That she also obtained loan
from Cooperative societies to fund her trade. That her husband, the 1st Defendant
used to engage in the business of buying and selling rams and other life animals,
especially during festivals. That her husband used to transfer money to her for
upkeep of the family, and to invest in real property. That the 1st Defendant, her
husband specifically instructed her to use the name of their children to prepare title
documents for such properties. That she had never met the 2nd and 3rd Defendants
prior to this case. That her husband also instructed her to use her name as the owner
of Sienna car purchased from the proceeds of the crime, and to improve on their
family house.
That she got to know about the development which led to this case when
Oduwoye Waheed Adebowale and other members of Wakman Golden Heritage Ltd.
started to visit her and trouble her about the where about of the 1st Defendant. That
upon inquiry, she was informed that the 1st Defendant made away With some money
meant for business of his company Wakman Golden Heritage Ltd. in Cotonou. That
she started to call the 1st Defendant on phone but did not succeed. Then after the 1st
Defendant on his own volition called her one day, with a strange phone number.
That at that stage she started to mount pressure on the 1st Defendant to return home
and explain himself and clear his name if he is not guilty of the allegations. That
eventually the 1st Defendant agreed to meet her at lbadan to discuss the issue. That
consequent upon their meeting at lbadan, she lured the 1st Defendant to their home
in Ikirun. That it was at that point the 1st Defendant was arrested by the personnel of
DSS, and eventually handed over to the police. That other than that, she, the 4th
Defendant does not know anything about the case. The 4th Defendant expressed
indignation that her in-laws who are members of the family of the 1st Defendant are
blaming her for betraying her husband, the 1st Defendant because she allegedly set
him up or arrest.
To prove its case, the Prosecution paraded five witnesses including Oduwoye
Waheed Adebowale as PW1. Other witnesses include Samuel Saanu who is one of
the Assistants to the 1st Defendant in Cotonou, and who rode the motorcycle that
took the 1st Defendant to Bureau de change where the 1st Defendant collected the
US dollar equivalent of ₦38million, Abubakar Saidu, the Hausa man that sold
jewelries to the 2nd and 3rd Defendants, Akindele Olalekan Sheu, the motor dealer
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

that sold the vehicle Lexus Jeep to the 2nd and 3rd Defendants, and the Police
Investigation Officer. All together the Prosecution tendered 46 documentary and real
exhibits.
The defence on the other hand presented each of the Defendants to testify in his
or her own defense. In addition, the 1st Defendant called one other witness, his
mother. Also the 3rd accused called two other witnesses who testified on his behalf.
Also in the course of trial, the 1st, 2nd and 3rd Defendants objected to the tendering
of their extra judicial statements in evidence. Consequent upon that, a Trial-Within-
Trial proceedings, were conducted. In a considered ruling delivered at the end of
Trial-Within-Trial Proceedings the court found no merit in the objection and
admitted the extra judicial statements made by the 1st and 3rd Defendants to the
Police in evidence as exhibits. The court also conducted visit to locus, at the
premises of the headquarters of Osun State Police Command, Osogbo to inspect and
admit the vehicles and some other items kept therein as exhibits. The defense also
vigorously made no case submission through their Counsel after the prosecution
closed its case. The prosecution opposed them. In another considered ruling, the
court substantially overruled the defense on "No case submission," but upheld the
submissions made in that regard on behalf of the 4th Defendant Olayemi Taiwo
Selimot on Counts 10 and 11.
At the conclusion of full trial, both the defense and the prosecution filed final
Addresses through their respective Counsel. The defence also filed Reply, Written
Address on Points of Law; In the final Address filed by Alhaji Adekola Nurudeen
on behalf of the Defendants; three issues were raised, to wit:

1. Whether the Prosecution has succeeded in establishing the

ingredients of the offenses charged in order to prove the guilt of
the Defendants beyond reasonable doubt.
2. Whether the 4th Defendant person is linked with the ingredients
of the alleged offences charged.
3. Whether the court can grant a conviction and sentence based on
evidence unsupported by facts disclosed in the particulars of
offences in the charge’

The arguments proffered by the Learned Counsel to the Defendants in the

treatment of the three issues are contained the body of the Final Address.
On the other hand, the Prosecution, through its Counsel, Abiodun Badiora
Administrator General and Public Trustee, Ministry of Justice, Osun State,
submitted only one issue for determination in his Final Written Address, to wit;
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“Whether the Prosecution has proved the charge against the accused persons beyond
reasonable doubt.”

Also the argument proffered in aid of the issue is contained in the Final Address
filed by the Learned Counsel.
The defense did not raise any issue in their reply on Point of Law against the address
of the Prosecution.
I shall begin the resolution of this dispute by setting out the laws under which the
four accused were charged; that is Section 1 (1) (a) and 1(3) Advance Fee Fraud and
other Fraud Related Offences Act 2006, and Sections 390(a) 324 and 8 (2) of the
Criminal Code Law Cap 34, Laws of Osun State 2002.
S.1 (i) Not withstanding anything contained in any other enactment or law,
any person who by any false pretence, and with intent to defraud- a) obtain
from any person, in Nigeria or in any other Country for himself or any other
person; or..

3."A person who commits an offence under subsection (1) or (2) of this
section is liable on conviction to imprisonment for a term of not more than
20 years and not less than seven years without option of fine."

Criminal Code Law of Osun State 2002

S.390(a)
"Any person who steals anything capable of being stolen is guilty of
a felony, and is liable, if no other punishment is, provided to
imprisonment for three years."
S.324
"Any person who conspires with any other person to kill an person,
whether such person is in Nigeria or elsewhere, is guilty of a felony,
and is liable to imprisonment for fourteen years."
Section 86 (2)
"Any person who .............
2) with intent to alarm any person in a dwelling house, discharges
loaded fire arms or commits any other breach of the peace; is guilty
of a misdemeanor, and is liable to imprisonment for one year...”

Now, I have looked at the issues raised by the defense and the Prosecution
arising therefrom. I now formulate the following two issues:
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a) Whether or not the Prosecution has proved the charge

against the Defendants beyond reasonable doubt as to
grand the guilty of the Defendants.
b) Whether the Defendants has been linked with the
ingredients of the alleged offences charged.
The Learned Counsel to the Prosecution has done a good job by
classifying the eleven counts charge into just four in his Final Address. These
are
a. Counts 1 and X
b. Counts (II), (III), (IV) and (V)
c. Counts (VI), (VII), (ViI), (X)
d. Counts X and XI

This forensic architecture has made the work of the court quite easy and put
the counts with similar ingredients to be addressed together and in proper focus.
Indeed one can see that the line of arguments contained in the Final focus. Address
of the Leaned Counsel to the Defendants too can easily be captured in the four
compartments without any disadvantage to the case of the defense.
Let me state clearly that to prove the guilty of an accused on any of the counts
charged, the burden lies on the head of the prosecution to prove the case
convincingly. The prosecution must in essence prove the case beyond reasonable
doubt. See case AlGUOREGBIAN & ANOR V THE STATE (2004) 1 SC (pt.1)
at 65, ANEKWE V THE STATE (1976) 8 - 10SC. 255 and MUFUTAU
BAKARE V THE STATE (1987) 1 NWLR (pt. 52 ) at 579.
Learned Counsel to the defence and the prosecution in their Final Addresses
easily subscribed to this unquestionable position of the law. The law goes further
to establish that the parameta of prove beyond reasonable doubt does not imply that
the prosecution must prove the case beyond every shred or doubt. There is a world
of difference between "prove beyond reasonable doubt and its corollary -"prove
beyond unreasonable doubt." Doubts which are farfetched, inconsequent and
capable of being ignored without negative repercussion to the case of the Defendants
do not fall into the category of hurdle of "proof beyond reasonable doubt" which the
prosecution must necessarily surmount. See the case of ADEBAYO V THE
STATE (2008) 6 ACLR 372 at 395, and STATE V AKPABIO (1993) 4 NWLR
(pt.286) 204 at 224 H. Based on the above premise, I now proceed to deal with each
of the four categories of offences charged.
a. Conspiracy- Counts 1and X. A galaxy of cases exist to give
definition of conspiracy. The simple definition is an agreement to
prosecute an unlawful purpose. The most important element is the
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meeting of the mind of the conspirators. The conspirators do not

have to meet physically or know each other or communicate. It does
not matter that all o the conspirators must set out at the same time
to prosecute the unlawful purpose. The conspirators may engage in
omission to act or commission to act.
In all these, the end goal will give the same results: prosecution of unlawful
purpose to gain advantage or confer advantage on a person of another. Learned
Counsel to the defense drew my attention to the three ingredients established in the
case of OYEDIRAN VS THE REPUBLIC (1967) NMLR 122 at 12711.28 as well
as DABOH & ORS V THE STATE (1977) 5 SC. at 214 to the effect that, the court
should find out ;
i. Whether the conspirators directly communicate with
each other at a particular place and time and enter into
an agreement with common design.
ii. Whether there is a person who is the hub around
whom the others revolve like a centre of a circle and
circumstances.

c) Whether for instance, a person communicate with AA wish

BBwith C, which is a chain of conspiracy.
The only problem with the ingredients listed in the two cases is that the first
ingredient is not forward looking enough to see that in contemporary world,
communication between persons has become so fluid as to breakdown distance and
boundaries and has reduced boundaries below one second. These are the issues
highlighted in these cases; USHIE VS THE STATE, 2018 55CM 189 at 198, and
OSAREVEN V RN (2018) 7 SCM 133 at 164 -165. Deriving from the above,and
in particular the first count; Conspiracy to commit offence of obtaining property
with false pretence with intent to defraud, evidence was received by this court that
the 1st Defendant, upon being aware that the PW1, (Oduwoye Waheed Adebowale)
intended to transfer a sum of ₦38 million to him from Nigeria to Cotonou for the
purpose of paying for cashew and other products, which the 1st Defendant claimed
to have procured, the 1st Defendant immediately betrayed his intention to defraud
by sending out words to the 2nd Defendant to prepare to receive the money for safe
keep. This act also established false pretence to enable the 1st PW to pay for the
cashew products, whereas the mind of the 1st Defendant is to divert the money
without letting the PW1 know his real intention upon receiving the vital information.
The 2nd Defendant not only assured the 1st Defendant of a water tight arrangement,
she, the 2nd Defendant also designed another agenda, that is, to hit back at the 1st
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Defendant over a business deal that had reportedly gone sour between the two of
them earlier. She never disclosed this intention to the 1st Defendant. The 2nd
Defendant also informed and brought in the 3rd Defendant, her husband to the
conspiracy so as to further reinforce the plan. When finally the fund (₦38 million)
arrived each of the 1st, 2nd and 3rd Defendants played his or her own part of the
conspiracy earlier designed and mapped out.
As for the second charge of conspiracy, that is Count 10 - conspiracy to murder
Oduwoye Waheed Adebowale, it can be informed that when the bubble burst and
the 1st Defendant went underground, he was monitoring the events and efforts of
PW1, to retrieve the money and also smoke out the 1st Defendant from his hiding
place. Notably, the 4th Defendant, (his wife) was his nemesis, who kept on piling
pressure on the 1st Defendant about the turn of events both at Wakman Golden
Heritage Limited and their homestead. At that stage this second stage of conspiracy
was activated, which was to bully and intimidate the PW1 into abandoning the quest
for the 1st Defendant and the money involved when the 2nd Defendant linked up the
1st Defendant with the 3rd Defendant, for the purpose of designing a plan to
eliminate the PW1 permanently.The 3rd Defendant called PW1 twice on phone, to
threaten him on the issue of the sum of ₦38 million and the other criminal conduct
earlier perpetrated in the business of cashew and allied products by the 1 st
Defendant, all totaling ₦75,700,000.00(Seventy five million, seven hundred
thousand naira).
Although the 1st , 2nd and 3rd Defendants vehemently denied ever converging on/or
visited the head office of Wakman Golden Heritage Ltd. Located at No. 9A
Oyedokun Street, Ikirun on any date ever, this is begging the question. The charge
did not fix the Defendants at No. 9A Oyedokun Street, the operational Words are:

".... with headquarters at....” any rate the trio need not be present or
know or converge at the place mentioned before the conspiracy, in
view of the specific principles of law laid down in the cases earlier
sited. See also NJOVENS'S CASE which is the locus classicus -
(1973) LPELR 2042 (SC).
Therefore the conclusion I reach is that the prosecution successfully proved the
two counts on conspiracy against the 1st, 2nd and 3rd Defendants. (b) On the second
group of counts which bother on obtaining property by false pretence- counts II, IIl,
IV and V, the Defendants were charged for defrauding the victim and PW1,
Oduwoye Waheed Adebowale of
a. 40 tons of cashew nuts worth ₦26 million
b. 18 tons of cashew nuts worth ₦11.7 million
c. The sum of ₦10 million and
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d. The last sum of ₦38 million.

The definition of and ingredients of the offence of obtaining under false pretence
is well and comprehensively captured by Niki Tobi JSC, in the case of
ONWUDIWE V FRN (2006) LPELR 2715(SC) at pg. 53 B-D.
Exhibit P.26, the extra judicial statement made by the 1st Defendant revealed how
the 1st Defendant knowingly passed the information of the movement of the sum of
N38 million to the 2nd and 3rd Defendants. The extrajudicial statement of the 3rd
Defendant Exhibits P 32 A corroborated this assertion. These facts are also
contained in Exhibits P24, P34A P.36 and P36A which are extra judicial statements.
Although the Defendants objected to the admissibility of the exhibits, they were
overruled after Trial within Trial proceedings were conducted. Quite apart from
these exhibits, other relevant facts exist, such as, the protest by the suppliers of
cashew products that were not paid at Cotonou Warehouse of the company, the 1st
Defendant who immediately went into hiding and re-entered Nigeria after collection
of the money from Bureau de change in Cotonou, Benin Republic, the sudden wealth
and purchase spree engaged on by the 2nd and 3rd Defendants.
The dealer of the vehicle claimed that the 2nd and 3rd Defendants wanted to pay
the purchase price in United State Dollars (USD) but he rejected it, hence they went
to the bank to transact the business in naira. The prosecution also tendered cashew
product stuffed with burnt and spoilt cashew and stone pebbles as Exhibit P23. I
have also examined the extra judicial statement made by the 2nd and 3rd Defendants
Exhibits P.27, P.28, P.29, P.30, P.31, P32 and P32A as well as exhibit P16, which
is the Statement of Bank account of the 2d Defendant. All these point irresistibly to
the fact that the Defendants participated in the sharing of the money. Everybody that
benefitted from the slush fund is as guilty as the 1 st to 3rd Defendant that was directly
involved in receiving all the funds and managing the office and warehouse where
the fraud took place (in Cotonou). Learned Counsel for the prosecution drew my
attention to the decision of the Apex Court in AGWUNA VS AG FEDERATION
& ANOR (1995) LPELR 258 and the unreported APPEAL NO. CA/AK
205CA/2014. ABDULGAFAR OLUWARINU YUSUF VS THE STATE
delivered on 8 December, 2017, where it was held that a co-conspirator who
received a Sum of money into his account, but claimed he was not aware that it was
proceed of crime is as guilty as the main offender. I stand by the principles laid in
those cases. Indeed Section 7 Criminal Code makes all parties to be liable in equal
proportion. It serves no useful purpose either to distinguish or sever the count of
N38 million from the other counts, as If to say that the 2nd and 3rd Defendants are
only involved in the N38 million fraud and no other. The fact is all the counts follow
the same trend. There is no clear cut manner as to how the 1st Defendant managed
or hid the proceeds o the crimes alleged. The project embarked upon by the 1 st
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Defendant concerning the management and control of fund and cashew products that
came to his control during the period of commission of the crime is so fluid, and
flow into each other. There is a long standing relationship between the 1st and 2nd
Defendants with regards to personal and business relationship, such that it an be
inferred that just as the 1st Defendant was transferring average of ₦400,000 monthly
to the 4th accused (his view), the 2nd Defendant too could have been conferring the
financial advantage or benefit she has been deriving from the proceeds of fraud
perpetuated by the 1st Defendant on the 3rd Defendant. At least the 2nd Defendant is
the owner of the building where the 2nd Defendant and 3rd were arrested. Learned
Counsel to the defense drew my attention to the case of ELVIS EZEANI VS FRN
ER (2018) Sc/ and Bello V FRN (2018) LPELR 43688 and submitted that, it is the
responsibility of the Prosecution to prove all the seven ingredients listed for the
offense of obtaining property by false pretense. I agree. The fact is that the
prosecution presented convincing, strong and water tight case against the accused
persons in fulfillment of these ingredients highlighted.
On the other hand, the Defendants presented weak, improbable and incoherent
defense. In fact from their demeanor, they too did not believe in the defense they
offered in the witness box. They offered those feeble and harried defenses for want
of not saying anything. Except the 4th Defendant whom considered to be a witness
of truth, the other three Defendants withheld truth from the court. The mother of the
1st Defendant, and the two witnesses called by the 3rd Defendant did not know
anything about the case. They could not answer any question on the specific
allegations leveled against the respective Defendants each of them came to support.
Based on that, I hold that the prosecution succeeded in proving counts II, III, IV and
V against the Defendants- 1st, 2nd & 3rd Defendants.

c) The third set of counts are counts VI, VIl, VIll and IX that deal
with stealing. Learned Counsel to the Defendants drew my
attention to the Legal text Nigerian Criminal Code Companion
by Hon. Justice E. O. Fakayode at pages 27 and 28, after making
elaborate contention on the definition and ingredient of the
offence of stealing. Learned Counsel to the Prosecution also drew
my attention to the definition of stealing as contained in Section
383 (1) Criminal Code, which was amplified in the case of
ADEJOBI V THE STATE (2011) 12 NWLR pt 261, 247 at
377.
Learned Counsel to the defense argued that with respect to the various sums
allegedly stolen, Count (VI) ₦26,000,000.00k, Count VIl - ₦11,700,00.00,Count
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

VIII - ₦10,000,000.00 and count IX - ₦28,000,000.00 could only be traced to the

1st Defendant alone while in Cotonou, Benin Republic while others (2nd and 3rd
Defendants) were in Abeokuta and 4 Defendant was in Ikirun. It was argued by
Learned Counsel that, the counts could not be sustained as there are no evidence to
back them up. On the other hand, Learned Counsel for the prosecution analyzed each
ingredient and linked each of 2nd and 3rd Defendants to the taking and permanently
deprive the victim all the monies and cashew nuts involved. Without much ado, my
holdings on obtaining property under tales pretense suffices in these allegations of
stealing. I am fortified in this holding in the case of AGUBA V FRN (2018) 6 SCM
1 at 8-9 parag. A - H.
This is also in tandem with Sections 7 and 8, Criminal Code Law, Cap. 34 Laws
of Osun State 2002.

d) Finally on count XI, Learned Counsel to the Defendants drew my

attention to section 86(2) Criminal Code under which the
Defendants were charged and the ingredients of the offence to be:

I. an intent to alarm any person

II. the alarm must take place in a dwelling house.
III. the person must have discharged loaded fire arms
IV. commits any other breach.

It was argued that each Defendant denied ever threatening violence or

intimidated and alarm Oduwoye Waheed Adebowale through phone calls that he
will be killed. It was further argued that the only evidence available to the
prosecution to prove the alleged offence is that of the victim who claimed to have
received telephone calls twice and that he reported the incident to the officers of
DSS. Finally, the Learned Counsel to the defense contended that the evidence is at
variance with the ingredients of the offence alleged.
On the other hand, Learned Counsel to the Prosecution held on tenaciously to
the fourth ingredient "or commits any other breach of the peace" and submitted
that, the 1st Defendant by acting through the 2nd and 3rd Defendants committed the
offence.

I agree With Learned Counsel to the Defendants that the charge is at variance with
the first three ingredients of the offence. However, apart from the evidence of the
victim/PW1, the extra judicial statement of the 1st Defendant and the 3rd Defendants
(Exhibit P23, P24, 31, 32 and 33 respectively) reinforced the allegation.
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Moreover, the fever pitch with which the investigation of the case reached then,
coupled with the frenzy and suffocating pressure mounted on the 4 th Defendant by
the security agents as well as agents of the victim (PW1) reinforced my believe that
the three Defendants committed the offence alleged. The phrase" or any other breach
of the peace" is elastic enough to capture the conduct of the 1st, 2nd and 3rd
Defendants and implicate them in the crime alleged.

On issue 2, whether the 4th Defendant is linked with the ingredients of the alleged
offence evidence; was received about how the 4 th Defendant made available, her
bank account for the 1st Defendant to transfer money from Cotonou to Ikirun. The
funds are not only meant for the upkeep of the 4th Defendant and her children. She
also acted on the instruction of the 1st Defendant to use part of the fund to purchase
landed properties. These properties were purchased and developed, using the name
of the children of the 4th and 1st defendants in order to conceal the actual ownership
of those properties. (Same with the purchase of the vehicle in her (4thDefendant's)
name. The 4th Defendant knew the actual salary of the 1st Defendant. She however
received transfer of funds regularly in several multiple of the amount without
questioning the source of the fund. The 4th Defendant wrote her statement to the
Police, and did not raise objection to its being admitted in evidence.

Exhibits P34, P34A, P36 and P36A as well as the Statement of Account of the 4
Defendant Exhibits P17, P18 and P19 show that the 4th Defendant has also been
implicated in the act of stealing.

However, I have earlier identified the 4th Defendant as a witness of truth. She also
cooperated fully with the security agents. And in view of her marital relationship
with the 1st Defendant, whether she got herself involved in this mess in exercise of
the free vein of her mind, or it was family ties that weighted her in, is a matter to be
attended to later in this case.
Both the defence and prosecution confronted themselves on the validity of the
charge and the scene of crime. With due respect to the Learned Counsel to the
defense, I do not see anything wrong in the way the counts were phrased as to the
date and venue of the alleged crime. See ANKPOGHER V THE STATE , (2018)
LPELR 43906.
Learned Counsel to the Defendants also raised the issue of the voluntariness of
the extra judicial Statement of the Defendant. With due respect to the Learned
Counsel to the Defendant, the Defendant were on their request taken through the
vigorous process of Trial Within Trial before the statements were admitted in
evidence. Till date, I am not aware that the Defendant appealed the ruling. Therefore
the argument is not valid. It is an invitation for this court to swallow its words in the
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crude interpretation of the submission, and an attempt to lure the court to sit on
appeal over its earlier decision, in its finest implication. I decline to do that.
Also, on the issue of application of Administration of Criminal Justice Law of
Osun State, which Learned Counsel to the Defendant described as adjectival law,
and therefore has retrospective effects. I do not see how this argument is coming in
at this stage. All the same I am bound to consider all defenses put forward by the
accused, no matter how stupid, improbable, or farfetched see OWOLABI
KOLADE V THE STATE (2017) LPELR 42362 (SC), WILLIAMs V THE
STATE 1992 SC and R V FADINA (1958) SCNLR, 250.
The point is, the Defendant made their extra judicial statement to the Police
between 6/10/2017 and 18/10/2017. This court delivered its ruling on Trial within
Trial on 6/11/2017. Ruling on No Case submission was also given on 4/2/2018. The
Defendants filed their Counsels Final Address on 19/7/2019. The Prosecution filed
its Counsel Address on 31st July, 2019. This issue did not come up at any of the
stage, and processes. The accused waited till they filed Reply on Point of Law
Administration of Criminal Justice Laws of Osun State was signed into law on 20
November, 2018. Therefore the issue is coming up as an afterthought. More
importantly, even if the Law is applicable to this case, I do not see where the
procedural steps taken by the Police in the course of investigating the case, including
the recording of the extra judicial statements of the Defendants run foul of the law.
The conclusion I reach therefore is that this defense is worthless and farfetched.

Finally hold that the prosecution succeeded in proving the allegations

convincingly and successfully beyond reasonable doubt, against the Defendants.

The Defendants failed woefully to defend the allegations against them. Therefore
each of them is found guilty and convicted as follows, in relation to each offence
alleged.
1st Defendant: counts 1, 2, 3, 4, 5, 6,7,8, 9, 10, 11.
2nd Defendant: Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11.
3rd Defendant: Counts 1, 2, 3, 4, 5, 9, 10 & 11.
4th Defendant: Counts 6,7, & 8
As for the 4th Defendant there is no evidence that she took part in the activities that
led to the fraudulent conversion of ₦38 million naira in view of Exhibits P17 and
P19. Therefore she is found not guilty of counts 1, 2, 3,4,5,8, 9, 10 and 11. She,
Olayemi Taiwo Selimot is only found guilty in counts 6, 7 and 8 only.
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Moreover the 1st Defendant has another wife, Kafayat Olayemi who is resident in
Lagos, and whom he (the first Defendant) ran to, after fraudulently collecting the
sum of N38 million, but the Police did not extend their investigation to her (Kafayat
Olayemi) to know the degree of her own benefit from the bazaar.

This case again brings to the fore, the attendant misfortune which is brought to
bear on contemporary Nigerian businessman. Internal sabotage and get rich quick
syndrome among the trusted workmen is quite rampant. Even if government policies
are good and favourable, the Nigerian businessman is most likely going to face the
challenge of management. Nothing can be more devastating than distrust. The victim
in this case has lost a fortune, and has passed through the gate of hell, not only in
the course of running around to recover his hard earned money, but to also preserve
his life that was threatened. He trusted the 1st Defendant so much that he erected the
pyramid of his business concern on him (1st Defendant).
As for the 1st Defendant, he has no one to blame except himself. He stole and
converted the money and handed it over to a woman of easy virtue, the 2 nd
Defendant. As for the 3rd Defendant, he is going down because of greed. How he
joined the 2nd Defendant to expend the money and the type of materials they
purchased shows that he too can as well play the role of the 1st Defendant easily, if
he had the chance. He tolerated the 2nd Defendant to shuttle between Abeokuta their
residence and Cotonou the business station of the 1st Defendant without restraint,
apparently due to the benefit he was deriving from the illicit financial deals of the
1st and 2nd defendants.

As for the 4th Defendant, Olayemi Taiwo Selimot, I acknowledge the fact that she
cooperated very well with the security agencies. She also presented herself as an
honest witness in the witness box. She did not object to the extrajudicial Statement
when it was tendered. But then, she was aware that her husband, the 1st Defendant
was living above his means, and sending money which was beyond his legitimate
earning into her bank account (of the 4th Defendant). The 4h Defendant claimed in
Exhibits P33, P34, P35 and P36 of her extra judicial Statement that she once
summoned courage to inquire from the 1st Defendant how he was making such huge
money, but that the 1st Defendant claimed that he made the extra money as his own
gains. I do not know how much the ingredient of marital relationship with the 1st
Defendant weighed in on the 4th Defendant at that stage. All the same it can be
inferred that the 4th Defendant knew the 1st Defendant was engaging in certain dirty
deals, hence he 1st Defendant directed 4th Defendant to hide the identity of the real
purchaser of that Siena Motor Car and the real properties that were purchased from
the illicit money, and she consented to and acted on the instruction.
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I have listened to the passionate moved by defense. However as much as am

prepared to temper justice with mercy to the Allocutus, the law under which the
accused were charged, and upon which I have held the 1st, 2nd and 3rd convicts liable
prescribed my two elastic limits; that is, the maximum sentence which is 20 years
imprisonment and the lower limit which is 7 years imprisonment without option of
fine. The Court has also implicated the 4th Defendant on counts VI, VII and VIll, the
maximum punishment of which is seven years.

Everything considered therefore, I hereby enter the following sentences against each
Defendant.
1st Convict Olayemi Babatunde Yusuff
Count 1- 10 calendar years 1HL
Count 2-10 calendar years 1HL
Count 3- 10 calendar years 1HL
Count 4- 10 calendar years 1HL
Count 5- 10 calendar years 1HL
Count 6- 3 years 1HL
Count 7- 3 years 1HL
Count 8 - 3 years 1HL
Count 9 -3 years 1HL
Count 10 - 7 years 1HL
Count 11- 6 months 1HL

The sentences shall run concurrently. In effect, the 1 st convict shall spend just 10
calendar years in prison.

2nd Convict - Ajoke Adijat Akinbolu

Count 1-10 calendar years 1HL
Count 2- 10 calendar years 1HL
Count 3-10 calendar years 1HL
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Count 4-10 calendar years 1HL

Count 5-10 calendar years 1HL
Count 6-3 years 1HL
Count 7-3 years 1HL
Count 8-3 years 1HL
Count 9- 3 years 1HL
Count 10-7 years 1HL
Count 11 - 6 months 1HL

The sentences shall run concurrently. In effect, the 2 ndconvict shall spend just 10
calendar years in prison
3rd Convict - Soliu Badiru Afolabi
Count 1- 7 years IHL
Count 2- 7 years IHL
Count 3- 7 years IHL
Count 4- 7 years IHL
Count 5- 7 years IHL
Count 6- Not guilty
Count 7 - Not guilty
Count 8 - Not guilty
Count 9 - 7 years IHL
Count 10- 7 years 1HL
Count 11- 6 months 1HL
The sentences shall run concurrently. In effect, the 36 months 1HLconvict shall
spend only 7 years in prison.
4th Convict - Olayemi Taiwo Selimot
Count 1 - Not guilty
Count 2 - Not guilty
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Count 3- Not guilty

Count 4- Not guilty
Count 5 - Not guilty
Count 6- 2 years, 1HL
Count 7 - 2 years, 1HL
Count 8 - 2 years, 1HL
Count 9- Not guilty
Count 10- Not guilty
Count 11- Not guilty

The sentences shall run concurrently. By implication the 4th convict shall spend
only 2 years in prison.
As a follow up, I hereby make the following anxilliary order.
1. In view of the fact that the accused did not bother to move their Motion
on Notice for bail, or rather impliedly abandoned same, their respective
sentences shall start to run from 27th February, 2018, which was the date
each of them was arraigned before this court.

2. In view of the provision of section 11 1(a) and (2) Advance Fee Fraud
and other Fraud Related Offences Act, the 1 st , 2nd , and 3rd Convicts shall
pay to the victim, Oduwoye Waheed Adebowale and his Company,
Wakman Golden Heritage Ltd. the total sum of seventy-five million,
seven hundred thousand naira ₦75,700.00 involved in the offences
committed by them. In particular all the exhibits recovered by the
security agents in form of cash in hand Exhibit P10 and P1OA, money
standing to the credit of the 1st , 2nd and 3rd Convicts in their various
banks and those transferred by the 1st Convict to the bank account of the
4th Convict shall be withdrawn and handed over to the victims. The motor
vehicles recovered from the convicts and real properties as evidenced by
Exhibits P1 - P9, P12, P13, P14 and P15 shall be sold and the amount
realized be handed over to the victims. Similarly, all other Exhibits
including the telephone sets admitted as Exhibits 20 and 20 and other
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

items whenever and however owned by or traceable to any of the 1, 2

and 3 Convicts especially real, movable or immovable property
mentioned by the 1st, 2nd, 3 and 4h Convicts in their respective Extra
judicial Statements admitted in evidence in this case, which were
acquired or improved upon from the proceeds of the crime shall be
recovered and sold, and the proceeds shall be handed over to the victims.
If the amount realized is more than the amount of restitution, the balance
shall be returned to the convicts. If however the amount realized is not
sufficient to meet the amount involved in the crime (₦75,700,000), the
convicts shall, upon completion of their prison terms, pay the difference
to the victims of the crime."

HON. JUSTICE S.O. FALOLA

JUDGE
5th DECEMBER, 2019.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

INCORPORATED TRUSTEES OF
THE AFRICAN CHURCH

AND

CHIEF DELE OKE

(For himself and on behalf of
Ile Oke family, Otan Ayegbaju)

Osun State High Court of Justice

Ila Judicial Division

HON JUSTICE A. L. ADEGOKE (Presided)

SUIT NO: HLR/4/2014

THURSDAY, 4 TH DAY OF
JUNE, 2020.

SUBJECT MATTER:

COMPANY LAW - Section 72 of the company and allied matters Act

JURISDICTION- How and whento ascertain jurisdiction of court

LAND LAW - Proof of title

LAND LAW- Conflict of traditional evidence.

LIMITATION LAWS - Limitation laws of Osun State

LIMITATION LAWS - Limitation law and continued trespass

LOCUS STANDI - Parties to a suit Pleadings

PRACTICE AND PROCEDURE- Reply address- whether recavassing a new point

by the counsel is valid
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

PLEADINGS - Facts pleaded and facts not pleaded

STATUTE - Statute of limitation in relation to land matter

TORT- Trespass and elements

TORT- Trespass and action

FACTS

According to the plaintiff, sometimes around 1935 and 1936, the Trustees of the
plaintiff church approached the then King of Otan Ayegbaju (Owa Olagunju) for a
parcel of land for its missionary works in the town and the King obliged it with some
parcel of land part of which contains the land in dispute. The said land was then
known as “Igbo Aiwo” (evil forest). The plaintiff deforested the land and established
a Church (St. Michaels African Church) on a portion of the land and a Primary
School on the other portion. The plaintiff operated the school for several years before
it was taken over by the government and merged with some other schools. The
school garden and playing field were all ceded with the school to the government
and the plaintiff maintained no control over that part of the land since. However, the
portion of the land containing the church building and some tombs of some dead
members of the church remained occupied by the plaintiff.
The church building made of brick/mud later became old and dilapidated by 1990s
because the church suffered some operational reversals. The plaintiff tendered in
evidence various documents showing its possession/physical presence and its
activities on the land in dispute throughout the period of cause of action.
The plaintiff alleged that during the lull, the defendant went on to the land in
dispute wherein there existed the dilapidated church building and tombs of some
dead members of the church, destroyed the remnants of the church building and the
tombs and started constructing his building thereon. The plaintiff members reported
the defendant to the reigning paramount ruler of the town and caused their solicitor’s
letter (Exhibit “E”) be written and served on the defendant but the latter refused to
acknowledge same. The plaintiff then instituted this suit.

Held:

(a) On reply address-

This is an abuse of the process of a Reply address. A reply address is never
an opportunity to re-canvass earlier submissions in the final written address
or fix a missing link by way of arguing a fresh point which ought to be done
in the earlier address but probably inadvertently left out by the counsel. In
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

ECOBANK NIGERIA LIMITED v. ANCHORAGE LEISURES LIMITED &

ORS (2016) LPELR-40220(CA) the Court of Appeal succinctly put the
essence of Reply on points of Law thus:

"By law where a reply on points of law translates to re-arguing a party's

written address or brief of argument, it will be discountenanced by the Court.
That was the stance of the Lower Court and the holding is within the ambit
of the law. See OKPALA VS IBEME (1989) 2 NWLR (PT 102) 208; FRN
VS IWEKA (2011) LPELR (9350) CA; OPENE VS NJC (2011) LPELR
(4795) CA. In UBA PLC VS UBOKOLO (2009) LPELR (8923) CA this
Court held that a reply brief is not meant to improve the quality of the
argument in the Appellant’s brief. In the same way, a reply on point of law
is not meant to improve on the quality of a written address Locus standi
means the standing, legal right, interest or capacity of the plaintiff to institute
an action against the defendant in a court of law. SeeESURUOSO & ORS
v. OGIDI (2002) LPELR-12233(CA). It is a fundamental concept in that it
is a threshold matter to adjudication without which a court will not have
jurisdiction to entertain the matter or exercise its judicial powers over same.
See Senator Abraham Adesanya v. The President Federal Republic of
Nigeria (1981) 1 All NLR (pt.1) 19; Thomas v. Olufosoye (1986) 1 NWLR
(pt.18) 669 at 685; Fawehinmi v. Akilu (1987) 4 NWLR (pt 67) 797;
Olorioode v. Oyebi (1984) 5 SC 1; and Owodunni v. Registered Trustees of
CCC (2000) 6 SC (pt III) 60; (2000) 1 WRN 29.

ss."Per OSEJI, J.C.A. (P. 42, Paras. B-E)

Based on the above, I hereby discountenance those portions.

(b) Meaning of locus standi-

Locus standi means the standing, legal right, interest or capacity of the
plaintiff to institute an action against the defendant in a court of law.
[ESURUOSO & ORS v. OGIDI (2002) LPELR-12233(CA)]. It is a
fundamental concept in that it is a threshold matter to adjudication without
which a court will not have jurisdiction to entertain the matter or exercise its
judicial powers over same. [Senator Abraham Adesanya v. The President
Federal Republic of Nigeria (1981) 1 All NLR (pt.1) 19; Thomas v.
Olufosoye (1986) 1 NWLR (pt.18) 669 at 685; Fawehinmi v. Akilu (1987)
4 NWLR (pt 67) 797; Olorioode v. Oyebi (1984) 5 SC 1; and Owodunni v.
Registered Trustees of CCC (2000) 6 SC (pt III) 60; (2000) 1 WRN 29]. The
concept of locus standi has an intertwined relationship with the issue of
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jurisdiction for where it is lacking, the court is bereft of jurisdiction to

entertain the matter. [IKELI & ANOR V. AGBE R (2014) LPELR-
22653(CA).] A party is said to have locus standi to sue when, by the suit, he
has disclosed sufficient interest to protect against the act or threatened act or
conduct of the defendant. It is also the law that in order to determine whether
or not a plaintiff has locus standi to institute the proceedings, the court has
to examine the pleadings of the plaintiff only and not that of the defendant.
[BAKARE & ORS v. AJOSE-ADEOGUN & ORS (2014) LPELR-
25024(SC)].

(C) Facts pleaded-

Let me state preliminarily that cases are decided on hard facts as pleaded and
applicable law. A court of law is only concerned with the issues joined in the
pleadings of the parties. It is also the law that parties and court are bound by
the pleadings before the court. See U.B.N. PLC V. AYODARE & SONS
(NIG.) LTD (2007) 13 NWLR (Pt.1052) 567. For issue to be joined on a
matter there must be a denial by a party of an assertion by the other party.
See LEWIS PEAT V AKHIMIEN 1976 7 SC 157.This is usually done in
the respective pleadings of the parties. However, the entire pleadings must
be wholly read together and considered in determining whether issue has
been joined on a point or not. See TITILOYE VS. OLUPO (1991) LPELR-
32509 (SC).
(d) Section 72 of company and allied matters acts-
The provisions of Section 72 of CAMA… simply means that contracts or
transactions entered into by an unregistered organization, prior to its formal
registration or incorporation under the law, are binding on the organization
even after incorporation, once same is ratified by it thereafter. It can also
draw benefits from such contracts or transactions as if it were in existence
when the contracts were being entered into, although it was not. It is also
settled law that the provisions apply to both ratified and yet to be ratified
transactions of the organization. In the Supreme Court case of S.G.F. v.
S.G.B. (Nig) Ltd. (1997) 4 NWLR (Pt.497) 8 at 28, the court construed
section 72(1) of CAMA thus: -
".... the law must intend that section 72(1) would
apply to pre-incorporation contracts already
ratified by existing companies as well as to such
contracts yet to be ratified...
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It thus seems clear to me that the above provision shows that an

unincorporated body or association of persons is a factual reality.
[ABRAHAM OLUSEGUN BANKOLE & ORS v. EMIR INDUSTRIES
LIMITED (2012) LPELR-19719(CA)].

(e) Statute of limitation-

The provisions of Section 72 of CAMA quoted above are very clear and
same have been well interpreted by our superior courts of law in very many
cases. It simply means that contracts or transactions entered into by an
unregistered organization, prior to its formal registration or incorporation
under the law, are binding on the organization even after incorporation, once
same is ratified by it thereafter. It can also draw benefits from such contracts
or transactions as if it were in existence when the contracts were being
entered into, although it was not. It is also settled law that the provisions
apply to both ratified and yet to be ratified transactions of the organization.

In the Supreme Court case of S.G.F. v. S.G.B. (Nig) Ltd . (1997) 4 NWLR
(Pt.497) 8 at 28, the court construed section 72(1) of CAMA thus: -

"....the law must intend that section 72(1) would apply to pre-
incorporation contracts already ratified by existing companies as well
as to such contracts yet to be ratified...

It thus seems clear to me that the above provision shows that an

unincorporated body or association of persons is a factual reality. See also
the case of ABRAHAM OLUSEGUN BANKOLE & ORS v. EMIR
INDUSTRIES LIMITED (2012) LPELR-19719(CA).

(f) Trespass is a fresh cause of action-

In the case of EKWEOZOR & ORS. –VS- The law is settled that every
continuing act of trespass constituteTHE REGISTERED TRUSTEES OF
SAVIOUR APOSTOLIC CHURCH OF NIG. (2014) LPELR -23572(CA),
the Court of appeal relied on the Supreme Court case of ONAGORUWA –
VS- AKINREMI (2001) 13 NWLR (Pt.729) p.38 @ 61, where the Apex
Court explained what constitutes continuing trespass as follows:
“It is trite law that it is a continuing tort of trespass for a person to
remain in another’s land without that other’s authority or consent,
so that barring defenses properly raised and sustained which defeat
the right of the owner of such land to complain of the continuing
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

trespass, the land owner is always entitled to protection as

appropriate.”
See ADEPOJU –VS- OKE (1999) 3 NWLR (Pt.594) p.154 @ 163-164.
Also in the case of OBUEKE –VS- NNAMCHI (2012) 7 SCM p.164 @ 183,
the Supreme Court per ONNOGHEN JSC (as he then was) stated the law
thus:

“Also settled is the principle of continuity of trespass or

successive acts of trespass constituting separate and
independence actionable wrongs in trespass.It follows that where
there is continuity of acts trespass, successive actions can be
maintained by a plaintiff from time to time in respect of the
continuance of trespass – see Adepoju vs. Oke (1999) 2 NWLR
(Pt.594) 154 at 169.

It is from a combination of the above principle that emerged the

doctrine of continuing trespass giving rise to actions from day as
long as the wrong lasts.In such a situation /circumstances an
action for trespass cannot be defeated by a plea of limitation of
time –in this case the assertion that the trespass hasw been on for
more than six years.’’

This is so because the cause of action in such a case arises de die in diem (i.e. from
day to day) so long as it lasts. Every passing continuing trespass gives a fresh cause
of action. See ADEPOJU –VS- OKE (Supra); OBUEKE –VS- NNAMCHI (2006)
ALL FWLR (Pt.313) p.195 @ 204. Also, an action for damages for continuing
trespass and injunction, cannot be defeated by asserting that the trespass had been
on for more than a period limited by the law.

7. Mode of proving right to title-

There are five recognised ways of proving title to land viz:
(a) By traditional evidence
(b) By production of documents of title, which are duly
authenticated;
(c) By acts of selling, leasing, renting out all or part of the land
or farming on it, or a portion of it.
(d) By acts of long possession and enjoyment of the land;
(e) By proof of possession of connected or adjacent land in
circumstances rendering it probable that the owner of such
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

connected or adjacent land would in addition, be the owner of

the land in dispute.
A plaintiff need not prove all the five ways to succeed in an action for title
to land as any one of these five ways will suffice. See IDUNDUN –VS-
OKUMAGBA & ORS. (1976) 9-10 SC 227. Each of the ways is independent
of the other. See MRS. LYDIA OMOWARE THOMPSON & ANOR. –VS-
ALH. JIMOH AROWOLO (2003) 6 SCM p.147. However, he must adduce
credible, cogent, coherent and sufficient eviden ce to prove that he has good
title to the piece of land in controversy, and he will not be allowed to rely on
the weakness of his opponent. See MOMODU OLUBODUN & 4 ORS. –V-
OBA ADEYEMI LAWAL & ANOR . (2008) 6-7 SC (Pt.1) 1.

8. When there is a conflict of traditional evidence -

Where there are two conflicting traditional evidence the solution is as stated
per Adekeye JSC thus: - "where the plaintiff and the defendant anchor their
case on traditional evidence in proving ownership of the land in dispute, the
duty of the trial court in the circumstances is to weigh their evidence on the
imaginary scale and determine which of the two is weightier".
[ODUNUKWE V. OFOMATA & ANOR (2010) LPELR - SC.294/2003 @
p.44); See also per Rhodes-Vivour JSC - DAKOLO & ANOR V. REWAN E
DAKOLO & ORS (2011) LPFLR-915 (SC) @ 24-25)"Per DONGBAN-
MENSEM, J.C.A. (Pp. 20-21, paras. F-A).]

9. Trespass and action-

Trespass is a civil wrong against possession. An action in trespass
presupposes that either the plaintiff is the owner of the land in dispute or he
is in possession of it. SeeDR. DALHATU ARAF V. MR. V. ONYEDIM
(2010) LPELR-3797(CA).In ADAMU v. LEEDO PRESIDENTIAL
MOTEL LTD &ANOR (2015) LPELR-25918(CA), the court held that:
"It is trite that the wrong of trespass to land consists of (a)
entering upon the land in the possession of the claimant, or
(b) remaining upon such land, or (c) placing or projecting any
material object upon it - in each case without lawful
justification - Bamgbade v. Balogun (1994) 1 NWLR (Pt 323)
718." Per ABIRU, J.C.A. (P. 32, Paras. A -C).

10.Issue of Jurisdiction: How and when it can be raised-

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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The position of the law is that issue of jurisdiction, which admittedly

includes issue of locus standi, can be raised anyhow and at anytime even at
the first time at the Supreme Court. [Nasir v. C.S. C., Kano State (2010) 6
NWLR (Pt.1190) P.253 at p.276, paras. A – E; Elabanjo & Anor. v. Dawodu
(2006) 15 NWLR (Pt.1001) 76; (2006) 6 SCNJ 204; (2006) 607 SC 24;
(2006) All FWLR (Pt.328) 604].

11. In determining cause of action-

The law is settled that in determining the cause of action in any particular
matter, the Court peruses only the plaintiff's statement of claim. Ogbimi v.
Ololo (1993) 7 SCNJ (pt. II) 447 at 454; Attor.Gen. Kwara State & Ors
v. Raimi Olawale (1993) 1 SCNJ 208 at 221.

12.Limitation laws of Osun State-

Section 3 of the Limitation Law Cap. 70, 2002, Laws of Osun State provides:
“No action shall be brought by any person to recover land after the
expiration of ten years from the date on which the right of action
accrued to him or, if it first accrued to some person through whom he
claims, to that person.”

What the above provisions simply indicate is that any action to recover land
brought outside the 10 years statutorily prescribed time limit is statute
barred. The right of action, if at all existed, has thus become stale and
extinguished. [WILLIAMS V. WILLIAMS (2008) 10 NWLR (PT.1095)
364.]

13.Limitation law and continue trespass-

The law is settled that where proved, a continuing trespass is an exception to
the application of the limitation law. This is so because the cause of action
in such a case arises de die in diem (i.e. from day to day) so long as it lasts.
Every passing day of continuing trespass gives a fresh cause of action. See
ADEPOJU –VS- OKE (Supra); OBUEKE –VS- NNAMCHI (2006) ALL
FWLR (Pt.313) p.195 @ 204. Also, an action for damages for continuing
trespass and injunction, cannot be defeated by asserting that the trespass had
been on for more than a period limited by the law.

Nigerian cases referred to in the Judgment:

Odofin v. Ayoola (1984) 15 NSCC 711
Iroagbara v. Ufomadu (2009) 5-6 SC (Pt.1) 83
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Dada v. Obalalenge & Ors.(2018) LPELR-46186 (CA).

Idundun v. Okumagba (1976) 9-10 SC 227 @ 249.
Ecobank Nigeria Limited v. Anchorage Leisures Limited& Ors (2016)
LPELR-40220(CA)
Ehikhametalo v. Iyare (2014) AFWLR (Pt.740) pg.1391 @ 1403.
Okijo v. Obioru (2007) ALL FWLR (Pt.365) p.568 @ 580
Adepoju v. Oke (1999) NWLR (Pt.594) p.145 @ 163 (G-H); p.164 (E).
Esuruoso & ors v. Ogidi (2002) lPELR-12233(CA).
Senator Abraham Adesanya v. The President Federal Republic of Nigeria
(1981) 1 All NLR (pt.1) 19
Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669 at 685
Fawehinmi v. Akilu (1987) 4 NWLR (pt 67) 797
Olorioode v. Oyebi (1984) 5 SC 1
Owodunni v. Registered Trustees of CCC (2000 ) 6 SC (pt III) 60; (2000) 1
WRN 29.
Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669 at 685; Fawehinmi v. Akilu
(1987) 4 NWLR (pt 67) 797
Olorioode v. Oyebi (1984) 5 SC 1
Owodunni v. Registered Trustees of CCC (2000) 6 SC (pt III) 60; (2000) 1
WRN 29
Ikeli & Anor v. Agber (2014) LPELR-22653(CA)
Bakare & ors v. Ajose -Adeogun & ors (2014) LPELR-25024(SC).
U.B.N. Plc v. Ayodare & sons ( Nig.) Ltd (2007) 13 NWLR (Pt.1052) 567
Lewis Peat v Akhimien 1976 7 SC 157
Titiloye v. Olupo (1991) LPELR -32509 (SC)
Nasir v. C.S.C., Kano State (2010) 6 NWLR (PT.1190) P.253 at p.276, paras.
A–E
Elabanjo & Anor. V. Dawodu (2006) 15 NWLR (Pt.1001) 76; (2006) 6
SCNJ 204; (2006) 607 SC 24; (2006) All FWLR (Pt.328) 604
S.G.F. v. S.G.B. (Nig) Ltd. (1997) 4 NWLR (Pt.497) 8 at 28
Abraham Olusegun Bankole & ors v. Emir Industries Limited (2012)
LPELR-19719(CA) Williams v. Williams (2008) 10 NWLR (PT.1095) 364
Ogbimi v. Ololo (1993) 7 SCNJ (pt. II) 447 at 454
Attor. Gen. Kwara State & Ors v. Raimi Olawale (1993) 1 SCNJ 208 at 221
Ekweozor& ORS. –VS- The Registered Trustees of Saviour Apostolic
Church of Nig. (2014) LPELR-23572(CA)
Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) p.38 @ 61
Adepoju v. Oke (1999) 3 NWLR (Pt.594) p.154 @ 163-164
Obueke v. Nnamchi (2012) 7 SCM p.164 @ 183
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Egwu v. Egwu (2007) 1 NWLR (Pt. 1014) 71 at 93 paras. D - G (CA)

Mrs. Lydia Omoware Thompson & Anor. V. Alh. Jimoh Arowolo (2003) 6
SCM p.147
Momodu Olubodun & 4 ORS.v. Oba Adeyemi Lawal & Anor. (2008) 6 -7
SC (Pt.1) 1 or (2008) 17 NWLR (Pt.1115) p.1 @ 31-32
Odunukwe v. Ofomata & Anor (2010) LPELR - SC.294/2003 @ p.44)
Dakolo & Anor V. Rewane Dakolo & Ors (2011) LPFLR -915 (SC) @ 24-
25)
Dr. Dalhatu Araf v. Mr. Onyedim (2010) LPELR -3797(CA)
Adamu v. Leedo Presidential Motel Ltd &Anor (2015) LPELR-25918(CA)

Nigerian Statutes referred to in the Judgment:

Limitation Law Cap. 70, 2002, Laws of Osun State
Companies and Allied Matters Acts 2014
Evidence Act
Book referred to in the Judgment
Nigerian Criminal Code Companion by Hon. Justice E. O. Fakayode

Counsel:
Adesheyi Darlington (with Adeyinka Ekanola and Mercy Adeoye) for the
Plaintiff
Rasheed Isamotu (with OladipupoIge) for the Defendant

FULL JUDGMENT:
The plaintiff is an Incorporated Trustees of the African Church registered
under the relevant laws in Nigeria and situated at Otan Ayegbaju, Osun State. The
defendant is an indigene from Ile Oke family of Otan Ayegbaju town. The plaintiff’s
claims against the defendant contained in the original statement of claim but later
amended by the leave of the court on the 21st day of November, 2019, are couched
in trespass and injunction and read thus:
(1) An Injunction restraining the defendant, his agents, servants
or privies from further trespassing on, entering on, entering
upon, building on or in any manner hindering the plaintiff’s
use and peaceful enjoyment of the land in dispute lying being
and situate at Oke Ero along Otan-Ila Road, Otan Ayegbaju
and more specifically described in the plaintiff’s dispute
survey plan number OS/0896/2017/LD001 drawn by O. E.
Adeleye Licensed Surveyor.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

(2) The sum of N10 Million Naira as aggravated damages for

the intrusive and oppressive acts of entering with impunity on
the land in dispute in spite of warnings by the traditional
authorities of Otan Ayegbaju and demolishing the plaintiff
church, destroying the properties therein and exposing the
tombs on the land to desecration without any legal
justification whatsoever.
At trial, the plaintiff called 5 witnesses and tendered several documents as
Exhibits. The defendant also called 2 witnesses and tendered Exhibit “O” which is
the subpoena process served on Dw.2, and Exhibit “P” which is the certified true
copy of the court proceedings of 15th December, 2014.
According to the plaintiff, sometimes around 1935 and 1936, the Trustees of
the plaintiff church approached the then King of Otan Ayegbaju (Owa Olagunju) for
a parcel of land for its missionary works in the town and the King obliged it with
some parcel of land part of which contains the land in dispute. The said land was
then known as “Igbo Aiwo” (evil forest). The plaintiff deforested the land and
established a Church (St. Michaels African Church) on a portion of the land and a
Primary School on the other portion. The plaintiff operated the school for several
years before it was taken over by the government and merged with some other
schools. The school garden and playing field were all ceded with the school to the
government and the plaintiff maintained no control over that part of the land since.
However the portion of the land containing the church building and some tombs of
some dead members of the church remained occupied by the plaintiff.
The church building made of brick/mud later became old and dilapidated by
1990s because the church suffered some operational reversals. The plaintiff ten dered
in evidence various documents showing its possession/physical presence and its
activities on the land in dispute throughout the period of cause of action.
The Plaintiff described the land in dispute as the one verged yellow in Survey
Plan No: OS/0896/2017/LDOO1 dated 28th June, 2017 (Exhibit M) drawn by
Surveyor O.E. Adeleye (Pw.4). The plaintiff alleged that during the lull, the
defendant went on to the land in dispute wherein there existed the dilapidated church
building and tombs of some dead members of the church, destroyed the remnants of
the church building and the tombs and started constructing his building thereon. The
plaintiff members protested and caused their solicitor’s letter (Exhibit “E”) be
written and served on the defendant but the latter refused to acknowledge same.
Plaintiff then reported the defendant to the reigning paramount ruler of the town
Pw.5, whose chieftaincy the defendant held, but the defendant again refused to
hearken to the advice and warnings of the King (Pw.5), not to take over the plaintiff’s
land. The plaintiff then instituted this suit.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The defendant on the other hand laid claim to the ownership of the said land
in dispute being part of the land inherited from his forbears, Lokunkanlu. He led
traditional evidence to the effect that his forefather, Obaala, was one of those who
jointly founded Otan Ayegbaju town and that Lokunkanlu, one of his sons, settled
in Ile Oke family of Otan-Ayegbaju, part of which is the land in dispute. He said the
land in dispute belongs to Ile-Oke family inherited from their forefathers. He stated
that part of the acts of ownership they have exercised on the land is farming and
allocation of portions thereof to some individuals to build their houses. He
mentioned some of the individuals to include Late Lasisi Erin, Prince Adetoro,
Prince Dotun Olagunju and one Pa Akanbi. The defendant also claimed to have
planted a thorny plant called “Ewon” on the land and referred to some deities
worshiped/celebrated on the land such as “Agemo” and “Igbale”, all as part of their
various acts of ownership on the land.
Furthermore, the defendant claimed that sometimes in 1930s, his family
granted some clergymen (other than the plaintiff) some land (including the land in
dispute) for their evangelical/missionary and educational work in Otan Ayegbaju.
He said that part of the conditions of grant then was that the land should be used for
evangelical/educational purposes only, that no permanent structure should be
erected thereon. That they also retain the right of reversion whenever the land is no
longer in use. The defendant said the church only had a makeshift structure on the
land for its services and used to take permission from the family before they buried
some of their dead members on the land.
By 1960s and 1970s, both the church and the school had wound down and
their makeshift building collapsed. The defendant family then constructed a road
called Oroki road between the school building ground and the church ground. The
defendant’s family later erected Lokunkanlu Hall on the school ground in
commemoration of their forbears. The defendant subsequently erected a house on
the remaining ground containing the church and the tombs. He claimed the
defendant is entitled to take over the land based on the precondition with which the
land was granted initially coupled with the fact that the church had gone into
extinction and land was not in use by the time the defendant took over the land in
dispute. He denied committing any trespass on the land as same belongs to his family
and that the plaintiff is not known to the defendant’s family.
Counsel exchanged their final written addresses. Learned counsel for the
plaintiff raised 2 issues for determination thus:
“(i) Whether the Plaintiff has proved, by preponderance of
evidence, that they are entitled to the peaceful possession of
the land in dispute, to warrant an injunction to lie against
the defendant trespasser.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

(ii) Whether the defendant’s case put forward in this suit

established such interest on the land in dispute as could
defeat the plaintiff’s case.”
On issue (i), learned counsel for the plaintiff started off by submitting that
although the case of the plaintiff is couched in trespass making it vital for it to show
exclusive possession of the land in dispute, its claim for injunction has put its title
to the land in issue. Counsel stated the five various independent ways of proving
title to land and submitted that the plaintiff has provided traditional evidence and
various acts of long possession and enjoyment of the land as evidence of its
ownership of the disputed land. Counsel referred to various portions of the plaintiff
witnesses as well as Exhibits and submitted that the plaintiff has clearly identified
the identity of the land in dispute by filing Exhibit “M”. He also submitted that there
is evidence that the said land was granted to the plaintiff by a previous Owa
Olagunju of Otan Ayegbaju. Furthermore, he submitted that there is evidence of
Plaintiff’s long possession and enjoyment of the land by the e stablishment of the
church building, its activities and the existence of tombs of its dead members
thereon.
On issue (ii), learned counsel submitted that the defendant has not provided
evidence of better title to the land than that of the plaintiff. He referred to the
evidence of the Dw.1 to the effect that he broke the cemented structure of the two
tombs met on the land as evidence of admission of acts of trespass by the defendant.
He similarly referred to Dw2’s evidence that he grew up to know the plaintiff church
on the disputed land as evidence of plaintiff’s long existence and possessory right
over the land. He therefore urged the court to grant the relief for damages in view of
the admission of acts of trespass by the defendant. He also stated that the plaintiff
filed his Reply on the 29 th day of October, 2014 contrary to the contention of the
defendant’s counsel. He urged the court to resolve this issue in favour of the plaintiff.
Learned Counsel to the plaintiff reacted to the issues raised by the
defendant’s counsel in his written address. He contended that the issue of Pw.2
statement needing to be accompanied by its Yoruba version did not arise. Counsel
submitted that Pw.2 never claimed that he is an illiterate to warrant any jurat or
separate filing of any Yoruba version. He equally argued that his evidence in respect
of Exhibits “F” and “H” to “H10” are in compliance with Section 84(4) of the
Evidence Act. He further argued that affidavits and written depositions being matters
of evidence governed by Federal enactment (Evidence Act) have to be in English
Language which is the only language of the court. He argued that the provisions of
the Rules of the court, being subordinate law cannot override the provisions of the
Evidence Act in this regard. He therefore submitted that the case of GUNDIRI –VS-
NYAKO (Supra) does not apply.
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On the issue of locus standi plaintiff counsel submitted that the plaintiff,
being registered body of the African Church, is clothed with the juristic personality
to institute this action in its corporate name and has sufficient interest to protect in
this case. That the plaintiff also has power to ratify the pre-incorporation contracts
and actions of the church pursuant to Section 72(1) of the Companies and Allied
Matters Act.
On the issue of statute of limitation being applicable to this case, counsel
submitted that from the statement of claim it is evident that the plaintiff’s complaint
against the trespass is in respect of the portion of the land where the church building
was, which was verged yellow in Exhibit “M”. Plaintiff’s counsel also submitted
that the conduct of the defendant also amount to continuing trespass as he continued
building on the disputed land even after the case had been instituted and while it was
going on.
On the second issue framed by the defendant, plaintiff counsel submitted that
the plaintiff has proved with certainty the extent and identity of the land in dispute
by filing Exhibit “M”, i.e. the survey plan. He further submitted that the defendant
having not filed any counter-plan cannot challenge the reliability of Exhibit “M”.
He relied on EHIKHAMETALO –VS- IYARE (2014) AFWLR (Pt.740) pg.1391 @
1403.
Learned counsel for the defendant preliminarily submitted that the plaintiff
did not file any Reply to the defendant’s statement of defence though he obtained
leave of the court to do so on 15th day of December, 2014. He therefore submitted
that all evidence on a purported reply attached to the motion for leave to file Reply
out of time, but not filed, should be discountenanced. He argued that the only process
filed by the plaintiff is the Amended Statement of Claim upon which its case should
be solely considered.
Learned counsel for the defendant also formulated two issues for
determination thus:
“(i) Whether or not this suit is competent in law.
(ii) Whether or not claimant has proved that the land in dispute
was granted/gifted to it by Owa Olagunju to be entitled to
the reliefs sought”.
On issue (i), Counsel submitted that the plaintiff lacks locus standi to
institute this action because by virtue of its Certificate of Incorporation (Exhibit
“A”), it came into existence only in 2003, whereas it traced ownership of the
property back to 1935-1936, when it was allegedly granted to an unincorporated
African Church of Otan Ayegbaju. Counsel argued that since the plaintiff was not
yet in existence as at the alleged time of grant, it lacks sufficient legal interest or
standing to institute this suit.
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The second leg of his submission on this issue is premised on a number of

facts: one is that the land in dispute includes Lokunkanlu Hall which construction
began by the defendant’s family between 1994/1999 and completed in 2009.
Second, this suit was filed on 22 nd April, 2014, more than 10 years after
commencement of the Hall, the alleged trespass. Learned counsel therefore
submitted that this action is statute barred as its right of action, if at all, has become
extinguished, having been commenced after the 10 years time-limit stipulated by the
applicable statute.
On issue (ii), Counsel submitted that the plaintiff has not proved the extent
of the land being claimed. He referred to the evidence of the Pw.4 and contended
that the inconsistencies in the measurements in Exhibit “B3” vis-à-vis Exhibit “M”
render Exhibit “M” unreliable. He further submitted that the Plaintiff has neither
properly pleaded nor proved his root of title as he had not shown how the King who
purportedly granted him the parcel of land became owner of the said land. That the
custom or customary law that the king has dominion over and power to grant land
in the area has not been proved. He cited the case of OLUBODUN –VS- LAWAL
(2008) 17 NWLR (Pt.1115) p.1 @ 31-32; ODOFIN –VS- AYOOLA (1984) 15
NSCC 711; IROAGBARA –VS- UFOMADU (2009) 5-6 SC (Pt.1) 83; DADA –VS
OBALALENGE & ORS. (2018) LPELR-46186 (CA).
Nor did it plead the names of the witnesses or extent of the alleged grant/gift
of the disputed land, the defendant submitted. He further submitted that mere
burying of dead bodies of some of its members or several years of stay on the land
cannot ripen to ownership especially in the face of proof of better ownership of the
land by the defendant.
He referred to the historical evidence of ownership of the land in dispute and
the adjoining land by the Dw.1 and Dw.2. He also relied on the provisions of Section
35 of the Evidence Act 2011 on possession and enjoyment of the adjoining land.
IDUNDUN –VS- OKUMAGBA (1976) 9-10 SC 227 @ 249.
Defendant’s counsel also filed a reply address which essentially ten ds to re-argue
or re-emphasize the points earlier canvassed in the final written address. This is an
abuse of the process of a Reply address. A reply address is never an opportunity to
re-canvass earlier submissions in the final written address or fix a mi ssing link by
way of arguing a fresh point which ought to be done in the earlier address but
probably inadvertently left out by the counsel. In ECOBANK NIGERIA
LIMITED v. ANCHORAGE LEISURES LIMITED & ORS (2016) LPELR-
40220(CA) the Court of Appeal succinctly put the essence of Reply on points of
Law thus:

"By law where a reply on points of law translates to re-arguing a

party's written address or brief of argument, it will be
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discountenanced by the Court. That was the stance of the Lower

Court and the holding is within the ambit of the law. See OKPALA
VS IBEME (1989) 2 NWLR (PT 102) 208; FRN VS IWEKA (2011)
LPELR (9350) CA; OPENE VS NJC (2011) LPELR (4795) CA. In
UBA PLC VS UBOKOLO (2009) LPELR (8923) CA this Court
held that a reply brief is not meant to improve the quality of the
argument in the Appellant’s brief. In the same way, a reply on point
of law is not meant to improve on the quality of a written
address."Per OSEJI, J.C.A. (P. 42, Paras. B-E)
Based on the above, I hereby discountenance those portions of the Reply Address
which tend to reargue the points earlier argued in defendant’s final written address.
After the adoption of final written addresses, the court raised an issue suo
motu on the 14th day of May, 2020 thus;
“Whether Statute of limitation vis-à-vis the doctrine of Continuing Trespass
apply to this case.”
On the issue raised suo motu, learned counsel for the defendant submitted
that the doctrine of Statute of limitation applies to this case because the land in
dispute includes the portion of land where the defendant has long built Lokunkanlu
family hall more than 10 years ago, making the plaintiff’s action to be statute barred.
He posited that the doctrine of continuing trespass applies in a case to exempt the
application of the doctrine of statute of limitation. However, he submitted, the
doctrine of continuing trespass will not apply in this case because it was never
pleaded and no evidence led thereon by the plaintiff. He relied on INEC –VS-
OGBADIGBO (2016) 3 NWLR (Pt.1498) 167 @ 182.
Learned counsel for the Plaintiff on the same issue submitted that the land in
dispute is that portion of land where the defendant removed the church building and
erected his house on, which does not include the portion where Lokunkanlu Hall
was built. He also submitted that the plaintiff pleaded and led evidence on continuing
trespass of the defendant and referred to paragraph 10 of the Amended statement of
claim. According to the Counsel, the continuous presence of the defendant on the
land in dispute despite plaintiff’s protest amounts to continuing trespass. He cited
OKIJO –VS- OBIORU (2007) ALL FWLR (Pt.365) p.568 @ 580; ADEPOJU –VS-
OKE (1999) NWLR (Pt.594) p.145 @ 163 (G-H); p.164 (E).
Taking a holistic view of the case of the parties herein, I am of st rong view that
the issues calling for determination are as follows:
1. Whether the claimant’s case is competent in law
2. Whether the claimant is entitled to its claim having regard to the
available evidence.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

RESOLUTION OF ISSUES FOR DETERMINATION

ISSUE 1: Whether the claimant’s case is competent in law
The defendant has premised his contention that the plaintiff’s suit is incompetent
on two main grounds. First, that the plaintiff has no locus standi; secondly that the
suit is statute barred. I will address the two grounds seriatim.
Locus standi means the standing, legal right, interest or capacity of the plaintiff
to institute an action against the defendant in a court of law. See ESURUOSO &
ORS v. OGIDI (2002) LPELR-12233(CA).It is a fundamental conception that it is
a threshold matter to adjudication without which a court will not have jurisdiction
to entertain the matter or exercise its judicial powers over same. See Senator
Abraham Adesanya v.The President Federal Republic of Nigeria (1981) 1 All NLR
(pt.1) 19; Thomas v. Olufosoye (1986) 1 NWLR (pt.18) 669 at 685; Fawehinmi v.
Akilu (1987) 4 NWLR (pt 67) 797; Olorioode v. Oyebi (1984) 5 SC 1; and
Owodunni v. Registered Trustees of CCC (2000) 6 SC (pt III) 60; (2000) 1 WRN
29.
The concept of locus standi has an intertwined relationship with the issue of
jurisdiction for where it is lacking, the court is bereft of jurisdiction to entertain the
matter. See IKELI & ANOR V. AGBER (2014) LPELR-22653(CA). A party is
said to have locus standi to sue when, by the suit, he has disclosed sufficient interest
to protect against the act or threatened act or conduct of the defendant. It is also the
law that in order to determine whether or not a plaintiff has locus standi to institute
the proceedings, the court has to examine the pleadings of the plaintiff only and not
that of the defendant. See BAKARE & ORS v. AJOSE-ADEOGUN & ORS
(2014) LPELR-25024(SC).
Now the contention of the defendant on this point is that the plaintiff church as
presently constituted was not in existence as at 1935 to 1936 when the land in dispute
was allegedly granted by one Owa Olagunju of Otan-Ayegbaju to a yet-to-be--
incorporated African church. That Exhibit “A” (Certificate of Incorporation) with
which the plaintiff herein became effective was issued only in 2003. That the
plaintiff therefore lacks locus to claim a gift that was granted in 1935-1936, more so
when the plaintiff has not led evidence of ratification of the pre -incorporation acts
or agreements of the church. The plaintiff has, in response cited and relied on the
provisions of Section 72 of the Companies and Allied Matters Acts 2014 (hereinafter
referred to as “CAMA”) on pre-incorporation contract. It provides:
Any contract or other transaction purporting to be entered into by the company or
by any person on behalf of the company prior to its formation may be ratified by
the company after its formation and thereupon the company shall become bound
by and entitled to the benefit thereof as if it has been in existence at the date of
such contract or other transaction and had been a party thereto.”
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Let me state preliminarily that cases are decided on hard facts as pleaded and
applicable law. A court of law is only concerned with the issues joined in the
pleadings of the parties. It is also the law that parties and court are bound by the
pleadings before the court. See U.B.N. PLC V. AYODARE & SONS (NIG.)LTD
(2007) 13 NWLR (Pt.1052) 567. For issue to be joined on a matter there must be a
denial by a party of an assertion by the other party. See LEWIS PEAT V
AKHIMIEN 1976 7 SC 157.This is usually done in the respective pleadings of the
parties. However, the entire pleadings must be wholly read together and considered
in determining whether issue has been joined on a point or not. See TITILOYE VS.
OLUPO (1991) LPELR-32509 (SC).
I have examined the entire pleadings of the defendant again and again, and I
cannot find a scintilla of issue raised by the defendant as to the legal personality of
the plaintiff or its locus standi to institute this action as being canvassed in
defendant’s written address. Consequently, it is my view that no issue of locus standi
was raised on pleadings and submissions on same are hereby discountenanced.
Be that as it may, I am not oblivious of the position of the law that issue of
jurisdiction, which admittedly includes issue of locus standi, can be raised anyhow
and at anytime even at the first time at the Supreme Court. See NASIR V. C.S.C.,
KANO STATE (2010) 6 NWLR (PT.1190) P.253 at p.276, paras. A – E;
ELABANJO & ANOR. V. DAWODU (2006) 15 NWLR (Pt.1001) 76; (2006) 6
SCNJ 204; (2006) 607 SC 24; (2006) All FWLR (Pt.328) 604. However, in case I
am wrong in my holding above, I hereby consider the issue of locus standi as
addressed by the parties.
The provisions of Section 72 of CAMA quoted above are very clear and same
have been well interpreted by our superior courts of law in very many cases. It
simply means that contracts or transactions entered into by an unregistered
organization, prior to its formal registration or incorporation under the law, are
binding on the organization even after incorporation, once same is ratified by it
thereafter. It can also draw benefits from such contracts or transactions as if it were
in existence when the contracts were being entered into, although it was not. It is
also settled law that the provisions apply to both ratified and yet to be ratified
transactions of the organization.
In the Supreme Court case of S.G.F. v. S.G.B. (Nig) Ltd. (1997) 4 NWLR
(Pt.497) 8 at 28, the court construed section 72(1) of CAMA thus:-
"....the law must intend that section 72(1) would apply to pre-incorporation
contracts already ratified by existing companies as well as to such
contracts yet to be ratified..."
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It thus seems clear to me that the above provision shows that an unincorporated body
or association of persons is a factual reality. See also the case of ABRAHAM
OLUSEGUN BANKOLE & ORS v. EMIR INDUSTRIES LIMITED (2012)
LPELR-19719(CA).
In the light of the above, it is my view that the plaintiff church, though
unincorporated as at 1935 to 1936 when the land in question was allegedly granted
to its trustees, could validly protect their interest under the said grant or transaction
in respect of the land, whether or not it has been ratified. Again it has to be stated,
at the risk of being repetitive, that the point of whether or not the grant has been
ratified by the plaintiff after its incorporation was never raised as an issue either in
pleading or in evidence throughout this suit. The sum total of my consideration on
this point is that the plaintiff’s church fully has sufficient interest disclosed on the
statement of claim which affords it locus standi to institute this suit. The defendant
is overruled on this point.
The second leg of the issue, is Statute of limitation. I wish to treat this point hand
in hand with the issue raised suo motu by the court i.e., vis-à-vis the doctrine of
continuing trespass. The law is settled as rightly submitted by both counsel that
where the doctrine of continuing trespass obtains, it is a variant of an exception to
the application of statute of limitation.
Again, this is a jurisdictional concept determination of which requires examining
essentially only the plaintiff’s pleadings. The court needs to ascertain what the
subject matter is, i.e. the land in dispute in this case. It is to be noted that the
defendant has no counter-claim in this case; the only appropriate process to examine
in this exercise is the plaintiff’s statement of claim and in its holistic context.
My humble understanding of the case of the plaintiff as disclosed in its pleadings
is to the effect the entire land granted to the African Church in 1935/36 is as reflected
in Exhibit B3 survey plan of 1979. However the portion of the land being challenged
based on trespass of the defendant is the one containing the church building and
some tomb sites as described in the dispute survey plan of 2017 (Exhibit M). This is
evident in paragraphs 9 and 13(a) of the Amended Statement of claim. That was
subsequent to late 1990s when the plaintiff’s church suffered some operational
reversals and its building became old and dilapidated. Plaintiff also stated that it
caused its Solicitors Letter (Exhibit “E”) dated 27 th October, 2012, to be served on
the defendant warning him to stop the trespass although he ignored the warning.
This suit was instituted on the 22nd day of April, 2014. That is a period of about 2
years interval.
Section 3 of the Limitation Law Cap. 70, 2002, Laws of Osun State provides:
“No action shall be brought by any person to recover land after the
expiration of ten years from the date on which the right of action accrued to
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

him or, if it first accrued to some person through whom he claims, to that
person.”
What the above provisions simply indicate is that any action to recover land
brought outside the 10 years statutorily prescribed time limit is statute barred. The
right of action, if at all existed, has thus become stale and extinguished. See
WILLIAMS V. WILLIAMS (2008) 10 NWLR (PT.1095) 364 . In the present
circumstance, this action was brought barely 2 years from the date of accrual of
cause of action. It is thus not statute barred and I so hold.
The defendant has argued that the land in dispute includes the portion where the
Lokunkanlu Hall was erected more than 15 years before the commencement of this
suit, therefore making the institution of this action statute barred. Now, the law is
settled that in determining the cause of action in any particular matter, the Court
peruses only the plaintiff's statement of claim. Ogbimi v. Ololo (1993) 7 SCNJ (pt.
II) 447 at 454; Attor. Gen. Kwara State & Ors v. Raimi Olawale (1993) 1 SCNJ 208
at 221. The issue of Lokunkanlu Hall and the land upon which it was built came up
in the defence of the defendant. See paragraph 34 of the Statement of defence.
The plaintiff has clearly identified the land it claims as the portion of land
whereon the church building was located before it became dilapidated and rubbles
removed and the defendant later built on the same portion of land. The said portion
was also described in exhibit “M” as verged Yellow. It is therefore wrong for the
defendant who has neither filed a counterclaim nor a counter-survey plan to define
and insist on his own definition of the land in dispute which is contrary to what the
plaintiff claims.
It is also my view that the plaintiff has adequately pleaded facts showing
continuing trespass on the part of the defendant in paragraphs 9 and 10 of the
plaintiff’s amended statement of claim as well as the Solicitor’s lett er Exhibit “E”.
Specifically, the plaintiff pleaded and led evidence through Pw.1 that the defendant
continued to construct his building surrounded by the remaining rubbles (wood, iron
sheets, wooden furniture, e.t.c.) of the old church which he demolished as well as
the tombstones which are beside and behind the building, despite warning letter
Exhibit “E” and efforts of the King, Pw.5 and his chiefs to stop defendant’s further
trespass. This, to me, is sufficient pleading of continuing trespass by the pla intiff.
The law is settled that every continuing act of trespass constitutes a fresh
cause of action. In the case of EKWEOZOR & ORS. –VS- THE REGISTERED
TRUSTEES OF SAVIOUR APOSTOLIC CHURCH OF NIG. (2014) LPELR -
23572(CA), the Court of appeal relied on the Supreme Court case of
ONAGORUWA –VS- AKINREMI (2001) 13 NWLR (Pt.729) p.38 @ 61, where
the Apex Court explained what constitutes continuing trespass as follows:
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“It is trite law that it is a continuing tort of trespass for a person to

remain in another’s land without that other’s authority or consent,
so that barring defences properly raised and sustained which defeat
the right of the owner of such land to complain of the continuing
trespass, the land owner is always entitled to protection as
appropriate.”
See ADEPOJU –VS- OKE (1999) 3 NWLR (Pt.594) p.154 @ 163-164.

Also in the case of OBUEKE –VS- NNAMCHI (2012) 7 SCM p.164 @ 183,
the Supreme Court per ONNOGHEN JSC (as he then was) stated the law thus:

“Also settled is the principle of continuity of trespass or successive

acts of trespass constituting separate and independent actionable
wrongs in trespass .It follows that where there is continuity if acts
of trespass, successive actions can be maintained by a plaintiff from
time to time in respect of the continuance of trespass -see Adepoju
vs Oke (1999) 2 NWLR (Pt.594) 154 at 169
It is from a combination of the above principles that emerged
the doctrine of continuing trespass giving rise to actions from day
to day as long as the wrong lasts .In such a situation /circumstance
an action for trespass cannot be defeated by a plea of limitation of
time – in this case the assertion that the trespass has been on for
more than six years. “
I therefore have no doubt that the plaintiff herein has sufficiently al leged and
pleaded a case of continuing trespass against the defendant in respect of the land in
dispute. The law is settled that where proved, a continuing trespass is an exception
to the application of the limitation law. This is so because the cause of action in such
a case arises de die in diem (i.e. from day to day) so long as it lasts. Every passing
day of continuing trespass gives a fresh cause of action. See ADEPOJU –VS- OKE
(Supra); OBUEKE –VS- NNAMCHI (2006) ALL FWLR (Pt.313) p.195 @ 204.
Also, an action for damages for continuing trespass and injunction, cannot be
defeated by asserting that the trespass had been on for more than a period limited by
the law.
In the present case I find that there is an established case of continuing trespass,
for reason I will state anon, and so the continued stay of the defendant on the land
in dispute constitutes fresh cause of action from day to day as long as the defendant
continues to stay on the said land. The doctrine of Statute of limitation therefore
does not apply in this case.
I therefore resolve Issue 1 in favour of the plaintiff and against the defendant.
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ISSUE II:
Whether the claimant is entitled to its claim having regard to the available
evidence.
As earlier stated, the nature of the plaintiff’s case is in trespass but having been
coupled with a relief for injunction, title to the land is thus put in issue. See EGWU
V. EGWU (2007) 1 NWLR (Pt. 1014) 71 at 93 paras. D - G (CA).There are five
recognized ways of proving title to land viz:
A. By traditional evidence
B. By production of documents of title, which are duly authenticated;
C. By acts of selling, leasing, renting out all or part of the land or
farming on it, or a portion of it.
D. By acts of long possession and enjoyment of the land;
E. By proof of possession of connected or adjacent land in
circumstances rendering it probable that the owner of such connected
or adjacent land would in addition, be the owner of the land in
dispute.
A plaintiff need not prove all the five ways to succeed in an action for title to land
as any one of these five ways will suffice. See IDUNDUN –VS- OKUMAGBA &
ORS. (1976) 9-10 SC 227. Each of the ways is independent of the other. See MRS.
LYDIA OMOWARE THOMPSON & ANOR. –VS- ALH. JIMOH AROWOLO
(2003) 6 SCM p.147. However, he must adduce credible, cogent, coherent and
sufficient evidence to prove that he has good title to the piece of land in controversy,
and he will not be allowed to rely on the weakness of his opponent. See MOMODU
OLUBODUN & 4 ORS. –VS- OBA ADEYEMI LAWAL & ANOR. (2008) 6-7 SC
(Pt.1) 1.
Now, both parties have chosen to prove their respective titles to the land in
dispute by pleading traditional evidence and acts of long possession and enjoyment
of the land. The defendant has ventured to include proof of possession of connected
or adjacent land in circumstances rendering it probable that the owner of such
connected or adjacent land would in addition, be the owner of the land in dispute.

Where there are two conflicting traditional evidence the solution is as stated per
Adekeye JSC thus: - "where the plaintiff and the defendant anchor their case
on traditional evidence in proving ownership of the land in dispute, the duty of the
trial court in the circumstances is to weigh their evidence on the imaginary scale and
determine which of the two is weightier". See ODUNUKWE V. OFOMATA &
ANOR (2010) LPELR - SC.294/2003 @ p.44); See also per Rhodes-Vivour JSC -
DAKOLO & ANOR V. REWANE DAKOLO & ORS (2011) LPFLR -915 (SC) @
24-25)"Per DONGBAN-MENSEM, J.C.A. (Pp. 20-21, paras. F-A).
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The plaintiff’s evidence of how the land in dispute was granted to the trustees of
the African Church way back in 1935-1936 by the then King of Otan Ayegbaju and
how they took possession of same after deforesting it has been duly supported by
the Pw.1, Pw.3, Pw4 and Pw.5. The plaintiff’s various activities on the land since
1935/1936 as evidenced by the church building which later grew old and dilapidated,
together with the tombstones of some of its deceased members, which has not been
denied by the defendants are credible evidence of acts of long possession and
enjoyment of the land in dispute by the plaintiff. I find it credible and consistent with
their pleadings.

Although the defendant pleaded how his forefathers from Ile-Oke family came
to settle on a larger piece of land in Otan Ayegbaju which included the land in
dispute, he failed to provide credible evidence of members of the family who could
have strengthened his traditional evidence as against that of the plaintiff who has
already denied the defendant’s story in its pleadings. The defendant pleaded in
paragraph 15 of his statement of defence that the present Baale of ile-oke family is
Pa Oyedeji and frontloaded the evidence of two other family members Pa Oseni
Oduoye and Pa Akanbi. He however failed to call any of the said members, other
than himself, during trial to establish the ownership of the land by the Ile-oke family.
Dw.2 (Chief Michael Oyebamiji) who testified in his support has not been described
as a member of the Ile-oke family and did not state how ile-oke family came to be
the owner of the said land. I do not believe his story of how one Jolaade, one of the
wives of the late Owa Olagunju bought a parcel of land from the defendant’s family
which was built by her son Dotun Olagunju, because apart from the fact that same
not been pleaded, neither Jolaade nor Dotun Olagunju was called to testify to the
said fact and be cross-examined thereon, which made it to be in the realm of hearsay.

Furthermore, I find curious some serious contradictions in some averments in

the defendant statement of defence vis-à-vis the evidence of his witnesses. For
instance, the defendant pleaded in paragraphs 22 and 23 of the statement of defence
that sometimes in 1930s, his family granted with some conditions, some portion of
land including the land in dispute to some clergymen (other than the plaintiff)
(underlining mine) to further their evangelical/missionary and educational work in
Otan Ayegbaju. No name or identity of the clergymen was given. None was called
to testify or corroborate. However under cross-examination, Dw.1 stated

“My case is that it was my family that gave the land in dispute to the plaintiff.
The plaintiff built a single building on the said land which they used as
school and church. Exhibit G3 is the picture of the church. It was not built
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with concrete but with mud. It was also covered with zinc. The place where
the church was is the same place where my house stands now. Exhibit H7 is
the picture of my house at decking stage. Exhibit H6 (b) is the picture of a
side of my house towards the frontage. It is on the land in dispute. The picture
in exhibit H6 (b) also shows the debris of the old church and it confirms that
it was built of mud. At the time I started the building there were two
tombstones belonging to the former Baba Ijos on the land. They are still in
the pictures Exhibit H7. However I removed them when I wanted to construct
water. I live in the house now. I removed the structure on the top so that
pipes can pass through and I cemented it back. The bones in the tombs are
still in the ground. I also fenced the compound. We gave the plaintiff church
4 acres and we have taken back the entire 4 acres (i.e. we, Ile -Oke)….The
grant of the land to the plaintiff was not a permanent grant ……..”

Dw.2 also stated under cross-examination thus:

“…On the piece of land, where the uncompleted building is situated there
used to be a building erected by the church which building had fallen off
before it was taken over by the defendant. Exhibit G3 is the picture of the
church building of the plaintiff. That was in 1936. There used to be about 3
tombs in front of the said church building. Exhibit H7 is the picture of some
of the tombs…..” (Underlining mine for emphasis).

Yet, the defendant stated in paragraph 42 of the Dw.1 statement on oath of 8 th July,
2014 adopted as his evidence in this suit thus:

“The land in dispute was never granted to the plaintiff by anybody whether
under any conveyance or customary disposition or grant. The plaintiff is not
known to our family (underlining mine for emphasis).”

The above quoted pleadings and evidence of the defendant’s witnesses have not
shown them to be witnesses of truth. In one breath he said the plaintiff is unknown
to the family. In another breath he said the land was granted to the plaintiff church
by his family upon some conditions. The plaintiff has completely denied this
narrative and the defendant has not called evidence to establish his story other than
his ipse dixit.
The attack launched by the defendant’s counsel on some of the pictures taken in
respect of the land in dispute by Pw.2, is of no moment in view of the fact that his
own witnesses (Dw.1 and Dw.2) have identified some of the pictures as reflecting
the features on the land in dispute prior to and after the building of the defendant’s
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house on the land. They have also spoken to the pictures under cross-examination.
The argument as to the language in which the pw.2 made his statement to the counsel
as different from the language in which the statement on oath was filed therefore
paled into insignificance and can only probably be of technical rather than
substantial importance. The case of GUNDIRI –VS- NYAKO heavily relied on by
the defendant is therefore irrelevant and inapplicable.
The defendant counsel made a heavy a weather of the Reply process filed by the
plaintiff against the defendant statement of defence. I have examined the case file
and the records and I find as a fact that the motion for the leave to file the reply by
the plaintiff was filed on the 24th day of October, 2014. It appears the said reply was
filed on the same day. The motion, which had no prayer for a deeming order was
however moved and granted as prayed on the 15th day of December, 2014. The
defendant’s counsel’s contention here is that the reply does not exist or was not
deemed as properly filed.
I am of strong view that the reply filed by the plaintiff against the defendant’s
statement of defense cannot be ignored at this stage, several steps having been taken
by both parties subsequent to its filing. Its filing can, at worst, be treated as an
irregularity which has not been shown to have occasioned any prejudice to the
defendant. See Order 5 Rule 1(2) and Rule 2 of the Osun State High Court Amended
(Civil Procedure) Rules, 2008. I therefore discountenance defendant’s counsel’s
argument against the Reply process.
On the whole I find that the pieces of evidence of the plaintiff witnesses are
more credible and I hold that it has better title to the land in dispute. I hold that the
conduct of the defendant in removing the dilapidated church building of the plaintiff,
the tampering with or removal of the tombstones of the deceased members of the
church and the erecting his own house on the same portion of the land where the
church building used to be, without the consent and or authority of the plaintiff, are
all wanton acts of trespass against the lawful possession of the land in dispute by the
plaintiff. It is an uncivilised way of taking possession of land even if it belongs to
the defendant’s family (which he has not proved in this case) which may lead to
breach of peace in some circumstances. The desecration of the tombstones of the
plaintiff’s deceased members on the land by the defendant is most heinous and
unjustified. To worse n it all, the defendant, filled with vainglorious claim to the land
in dispute (which he has failed to establish by credible evidence) shows no remorse
at all for his despicable conduct.
Trespass is a civil wrong against possession. An action in trespass presupposes
that either the plaintiff is the owner of the land in dispute or he is in possession of it.
See DR. DALHATU ARAF V. MR. V. ONYEDIM (2010) LPELR-3797(CA).In
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ADAMU v. LEEDO PRESIDENTIAL MOTEL LTD & ANOR (2015) LPELR-

25918(CA), the court held that:
"It is trite that the wrong of trespass to land consists of (a) entering
upon the land in the possession of the claimant, or (b) remaining upon such
land, or (c) placing or projecting any material object upon it - in each case
without lawful justification - Bamgbade v. Balogun (1994) 1 NWLR (Pt 323)
718." Per ABIRU, J.C.A. (P. 32, Paras. A-C).

The established facts in this case show that the plaintiff was in possession by
virtue of their church structure and the tombstones on the land in dispute before the
defendant removed them and erected his own house on it despite warning (Exhibit
E) and appeals against it by Pw.5, the Owa of Otan Ayegbaju and his chiefs.
Interestingly, the defendant has not denied the presence of these structures on the
land in dispute but has even confirmed that he removed the structures and taken back
the land because the plaintiff has not been using it. This is unlawful interference by
the defendant with the possession of the land by the plaintiff. This is trespass, and
trespass once proved, the plaintiff is entitled to the reliefs of injunction and damages
as appropriate against the defendant.
This is a classical case of impunity and oppressive acts which warrants
aggravated damages. The plaintiff’s case succeeds and reliefs soug ht in paragraphs
13 (a) and (b) of the Amended statement of Claim are hereby granted in full.
Consequentially, and in order to give effect to Reliefs 13(a) just granted, the
defendant is hereby ordered to cause to remove his structure on the land in dispute
and deliver up vacant possession of the land to the plaintiff with 3 months from
today.
That is the judgment of this court.

HON. JUSTICE A. L. ADEGOKE

(JUDGE)
4TH DAY OF JUNE, 2020.
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THE STATE

V.

RAHEEM OLUWATOYIN

Osun State High Court

Osogbo Judicial Division

Hon Justice A.A Aderibigbe (Presided)

SUIT NO: HOS/49/2017

Wednesday 23rdJanuary, 2019

SUBJECT MATTER:

CRIMINAL LAW- Stealing- Offence of- Ingredients of

CRIMINAL LAW- Fraud- False Pretence- Offence of- Ingredients of

CRIMINAL LAW- Arson- Offence of

WORDS AND PHRASE- “On or about” meaning of

ISSUES:
Whether in the circumstances of this case, the prosecution can be said to
have proven its case against the accused person beyond reasonable doubt
in the 5 counts.

FACTS:
The accused was alleged to have stolen the money of her employer and
thereafter set fire on the property of her employer to cover up her evil
deeds. She was arraigned on a five count charge of arson, obtaining
property by false pretence, and stealing.
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HELD:
1. On the offence of Arson-
Section 443(a) of the Criminal Code Law Cap. 34, Laws of Osun
State 2002, provides that “any person who wilfully sets fire to any of
the following things-
(a) building or structure, whether completed or not...is guilty of
felony and is liable to imprisonment for life.”

2. On the Ingredients to convict an accused for the offence of false

pretence to defraud-
Section 1(1) (a) and (1)(3) of the advanced fee fraud and other fraud
related offences act 2006 provides:

“1(1) Not withstanding anything contained in any other enactment or

law, any person who by any false pretence, and with intent to defraud.
(1) Obtains from any other person in Nigeria ... for himself or any
other person; or any property. Whether or not the property is
obtained or its delivery is induced by through the medium of a
contract induced by false pretence, commit an offence under this
Act.”
To succeed in establishing the offence of false pretences, the
prosecution must prove:
1. That there is pretence
2. That is emanated from the accused
3. That it was false
4. That the accused person knew its falsity and did not believe in
the truth
5. That there was an intention to defraud
6. That the thing is capable of being stolen
7. That the accused person induced the owner to transfer his whole
interest in the property.
[Onwudiwe v Federal Republic of Nigeria (2005) QCCR 99
at 142 per Niki Tobi JSC.]

3. On the Ingredients to convict an accused for the offence of Stealing

Section 383(1) of the criminal code law, Cap. 34, Laws of Osun State,
2002 provides:
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“ a person who fraudulently takes anything capable of being stolen,

or fraudulently converts to his own use or to the use of any other
person anything capable of being stolen is said to steal that thing.”

Section 383(2)(a) and (f) provides:

“A Person who takes or converts anything capable of being stolen, is
deemed to do so fraudulently if he does so with any of the following
intents:
1. An intention permanently to deprive the owner of the thing of
it...
6. In the case of money at intent to use it at the will of the person
who takes or converts it, although he may intend afterwards to
repay the amount to the owner.”
The ingredients of the offence of stealing have been held in several
cases to be:
(a) The ownership of the thing stolen
(b) That the thing stolen is capable of being stolen; and
(c) The fraudulent taking or conversion by the accused.
[Adejobi vs The State (2011) 12 NWLR (Pt 261)247 at 377;
Onwudiwe vs. F. R. N.(2006) 49 WRN 68.

4. On the meaning of “on or about”

Whenever a person is facing a charge drafted to have been commited
on or about the date mentioned, the prosecution is excused from
proving that the offence occurred on that particular date except of
course , the accused said that he/she is ignorant of the incident talked
about or that the incident never happened.
I agree with the submission of learned Counsel for the prosecution in
this case...“it has been held that when the phrase “on or about” is used
in a charge, it expresses some amount of uncertainty. While the word
“or” introduces an alternative, the word “about” means a little more
or less than, a little before or a little after. Thus when the phrase “on
or about” is used in a charge, it is not necessary to prove the precise
date the alleged offence was omittted. [Ankpegher v The State (2018)
LPELR-43906(SC); Akpa v The State (2006) LPELR 7603(CA);
2007 2 NWLR pt 1019, Awopejo v State (2000) 6 NWLR Pt 659 1
at 13 F-G; Rex v Eronini 14 WACA 366.’’ Per Kekere Ekun JCA (as
he then was].
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NIGERIAN CASES REFERRED TO IN THE JUDGMENT

Federal Repulic of Nigeria v Bankole (2012)ALL FWLR (PT 629) 1011
at 1153
The State v Onyekwu (2004) 1711 FWLR Pt(211) 188 at 1425
Okoroa v The State 1990 6 NWLR PT 157 384 AT 401
Bozin v the state 1985 2 NWLR PT 2 465
Idowu Salami v The State 199 2 SC (pt 1) 63
Ezekiel Adekunle v The State
Commissioner of Police v Ude2012 ALL FWLR 1693
Miller v Minister of Pensions 1947 2 ALL ER372 at 279
Lori v The State 1980 12 NSCC 269 at 279
The State v Akpabio 199 4 NWLR Pt (286) 204 at 224
Queen v Iyanda 1960 NSCC 180
Adejobi v The State (2011) 12 NWLR (Pt. 261) 247 at 377
Onwudiwe v Federal Republic of Nigeria (2006) 49 WRN 68
Ankpegher v Iyanda (2018) LPELR-43906 SC
Akpa v The State (2006) LPELR 760 CA
Awopeju v State (2000) 6 NWLR (Pt. 659) 1 at 1 F-G
Rex v Eronini 14 WACA 366

NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT

Criminal Code Law CAP 34, laws of Osun State 2002
Advanced Fee Fraud and other Fraud Related Offences, Osun State 2002
Evidence Act.

COUNSEL
Abiodun Badiora, AG & PT, with him, Bewaji Adeniji PSC -
Prosecution Counsel.
Chief Abdulfatai Abdulsalam – Defence Counsel
E. Bolarinwa, with him, Kayode Ajibola, L.B. Falode, Kayode Alade and
Mayowa Falode, holding watching brief.

FULL JUDGMENT:

The accused, by a charge filed on 19/09/2017 is standing trial for the following
offences:
COUNT 1:
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

STATEMENT OF OFFENCE

Arson Contrary to Section 443 (a) of the |Criminal Code Law Cap 34, Laws of Osun
State, 2002.
PARTICULARS OF OFFENCE

RAHEEM OLUWATOYIN 'F on or about 1 st day of June, 2017 at about 8:00 a.m.
at Wolid International Services Ltd Building, Fakunle Area, Osogbo within Osogbo
judicial Division, holden at Osogbo, willfully and unlawfully set fire to the said
building.

COUNT 2:
STATEMENT OF OFFENCE

OBTAINING PROPERTY BY FALSE PRETENCE contrary to Section 1 (1) (a)

and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

PARTICULARS OFFENCE

RAHEEM OLUWATOYIN 'F on or about 1 st day of June, 2017 at about 8.00 a.m.
at Wolid International Services Ltd. building. Fakunle Area, Osogbo within Osogbo
Judicial Division, with intent to defraud did obtain the sum of ₦4,590,000:00 (Four
Million, Five Hundred and Ninety Thousand Naira) from Wolid International
Services Ltd., (the Company) under the false pretence that you are using the money
to trade for the company.

COUNT 3:
STATEMENT OF OFFENCE

OBTAINING PROPERTY BY FALSE PRETENCE contrary to Section 1 (1) (a)

and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 of
the Criminal Code Law Cap. 34, Laws of Osun State, 2002.
PARTICULARS OF OFFENCE
RAHEEM OLUWATOYIN ‘ F’ on or about 1st day of June, 2017 at about 8.00 a.m
at Wolid International Services Ltd of building, Fakunle Area, Osogbo within
Osogbo Judicial Division, holden at Osogbo with intent to defraud did obtain the
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sum of ₦676.545 (Six Hundred and Seventy Six Thousand, Five hundred and forty
five Naira) from Wolid International Service Ltd (the Company)under the false
pretence that you are using the money to trade for the Company.

COUNT 4:
STATEMENT OF OFFENCE
STEALING contrary to Section 390 (9) of the Criminal Code Law Cap. 34, Laws
of Osun State, 2002.
PARTICULAR OF OFFENCE

RAHEEM OLUWATOYIN ‘F’ on or about 1st day of June, 2017 at about 8.00 a.m.
at Wolid International Services Ltd of building, Fakunle Area, Osogbo within
Osogbo Judicial Division, holden at Osogbo, did steal the sum of ₦4,590,000 (Four
Million, five hundred and Ninety Thousand Naira) property or Wolid International
Service Ltd.

COUNT 5:
STATEMENT OF OFFENCE

STEALING contrary to Section 390 (9) of the Criminal Code Law Cap.34 Laws of
Osun State, 2002.
PARTICULARS OF OFFENCE

RAHEEM OLUWATOYIN 'F' on or about 1 st day of June, 2017 at about 8.00 a.m.
at Wolid International Services Ltd of building, Fakunle Area, Osogbo within
Osogbo Judicial Division, holden at Osogbo, did steal the sum of ₦676.545 (Six
Hundred and Seventy Six Thousand, Five hundred and forty five Naira)property of
Wolid International Service Ltd.

The case of the prosecution is that the accused representative with Wolid
International Services Ltd. On 27/05/2017, her account was audited by PW1 and she
was found to be trading with the sum of ₦4,519,000:00 (Four Million, Five Hundred
and Nineteen Thousand Naira) as capital with a profit of ₦71,000:00 (Seventy-One
Thousand Naira). On 31/5/2017, PW1 conveyed the decision of the Company's
management to the accused to pay to the company's cashier the sum of
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₦1,000,000:00 (One Million Naira) out of the capital together with the profit. The
accused however told PW1 that she had the sum of ₦500,000:00 (Five Hundred
Thousand Naira) as at 31/05/2017 but promised to pay the money to the cashier
when she made enough sale.

The next day, 01/06/2017, was a Thursday and a day declared as Environment
Sanitation Day in Osun State. The practice of the company is to open the office to
its staff by 8.00 a.m. and to Its customer by 10.00 a.m PW2, the company's Chief
Security Officer (C.S.0,) testified that he was the accused sitting down in front of
her office at about 8.00 a.m. on that day. About 30 minutes later, PW2 heard people
shouting "fire,""fire." He ran towards the place of the commotion and found PW1
and other staff members around the accused's office which was already on fire. The
accused was not around and did not pick up calls made to her phone. The glass on
the door to her office, which was locked had to be broken and a fire extinguisher
was used to put out the fire. After the intensity of the fire was reduced, some
members of staff forced open the door to put out the remaining pockets of fire on
things that were still burning in the office when the accused arrived. Exhibits P1 -P5
were brought out of the office of the accused.
The accused claimed that the sum of ₦3,800,000:00 (Three Million, Eight Hundred
Thousand Naira) was kept inside Exhibit P5 and that it must have got burnt in the
fire. When Pw1 asked the accused whether she had paid the sum of ₦1,071,000:00
(One Million and Seventy-one Thousand Naira) to the Cashier as directed by the
Company Management, the accused said she had not made although she made a sale
of ₦5,450,000:00 (Five Million, Four the Hundred and Fifty Thousand Naira) after
she was asked to pay to the cashier.

This was in spite of the fact that she bought stocks from the cashier and had
₦3,800,000:00 in excess with her. PW1 also testified that sometimes in June 2016,
the accused could not account for the ₦67,545:00 (Six Hundred and seventy-six
Thousand, Five Hundred and Forty-five Thousand Naira) in her possession when
her account was audited. Her excuse was that the money was for sales on credit,
although the accused admitted that the company has "No Sale on Credit" policy.
PW1, PW3 and PW4 testified that the sum of ₦3,800,000:00 was not in the office
of the accused at the time of fire incident because the partially burnt Exhibit P5 (a
"Ghana Must Go" bag) contained partially burnt smaller denominations of ₦5, ₦10,
₦20 and ₦50 and not bigger denominations ₦1,000, ₦500 and ₦200. They also
observed that there was no trace of power surge on the electricity cable as well as
the switch sockets and the wall of the office. The electrical appliances in the office
of the accused were also found to be working effectively after there was put out. The
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fire burnt partially Exhibit P5. Some of the stock and the plastic chair on which,
Exhibit P5 was placed.
The defence of the accused was that she was not around when her office was
engulfed by fire and her office door was fo rced opened by PW1, PW2 and one Mr
Kazeem and that when she inquired about the sum of ₦3,800, 000 she kept in her
office PW1, PW2 and Mr. Kazeem denied ever seeing the money while they were
packing out the partially burnt goods from her office. PW1 Later informed the
company’s counsel who invited the accused to Divisional Police station, Dugbe,
Osogbo where she was arrested as the only suspect. The case was later transferred
to the State C.I.I.D., Osogbo for further investigation and she was later charged to
Court.

The accused admitted that she could not account for the sum of ₦676,000;00 in
2016. She testified that she adopted the method of credit sale which other sale
managers were practising in order to boost her sales and project her job. This method
worked for her until she could not recover the debt of ₦676,000:00 from her
customers. She told the Court that the company made her to pay the money by
deducting the sum of ₦25,000:00 (Twenty-Five thousand Naira) monthly from her
salary of ₦45,000.

The accused also testified that she had been ill since 31/05/2017. On the day of the
incident (01/06/2017) she arrived at her office around 7 : 30 a.m and brought the sum
of ₦3,800,000:00 from the store to her office for trading her usual was. She then
decided to visit her doctor before commencement of business for the day and she
informed one Mrs. Funmi, the company Cashier. It should be noted that the cashier
was not called by the accused to corroborate the fact that the accused told her she
was going to see her doctor on 01/06/2017.
In his final written address, Counsel for the accused formulated a sole issue for
determination; which is:

"Whether in the circumstances of this case, the prosecution can be

said to have proven its case against the accused person beyond
reasonable doubt in the 5 counts?

Counsel for the accused submitted that the onus of proof lies on the prosecution and
the standard or prove beyond reasonable doubt as provided for in Section 135 (1) of
the Evidence Act and decided cases which he cited as:
FRN VS.BANKOLE (2012) ALL FWLR (Pt. 629) 1011 at 1153.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

THE STATE VS. ONYEKWU (2004) 1711 FWLR (Pt. 221) 1388 at
1425.
OKOROGA VS.THE STATE (1990) 6 NWLR (Pt. 157) 384 at 401.
BOZIN VS.THE STATE (1985) 2 NWLR (Pt. 2) 465.

On Count 1, Counsel submitted that PW2 testified that he heard the accused telling
other members of staff that she went to Ayoola Hospital during the period her office
was burning. PW3, also testified that accused told the police that she went to the
hospital for treatment when her office was burning.This alib i was according to him
never investigated by PW3. PW4 who also investigated the case at State C.I.I.D.
Osogbo also testified that two officers of the investigation team visited Ayoola
Hospital, Osogbo but did not meet the doctor. The officers however did n ot take any
further step on the issue of alibi before the case was charged to Court. He submitted
further that the accused stated in Exhibit P6 that when the cashier called her, she
told the cashier that she was at the hospital. He submitted that the accused raised the
issue or alibi early enough and the prosecution could not disprove that alibi raised
by the accused and she should be discharged and acquitted on this count. He relied
on these authorities:

IDOWU SALAMI VS.THE STATE (1988) 2 SC (Pt. 1) 63.

EZEKIEL ADEKUNLE VS.THE STATE (1989) 12 SC 203.
He further submitted that the prosecution did not prove that the office was set ablaze
by the accused and the evidence presented was merely speculative.

On Count 2, Counsel submitted that the sum of ₦4,519,000:00 was lawfully

allocated to the accused. He added that since there is nothing to show that the
accused falsely obtained the said money, a case of obtaining by false pretences has
not been established and he urged the Court to discharge and acquit the accused on
this count.

On Count 3, he submitted that the sum of ₦1,000,000:00 was allocated to the

accused by the Company to trade as a field sales representative and that when the
accused reported a loss of ₦676,000:00 the loss was converted to I.O.U. and the said
I.O.U is being deducted from the monthly salaries of the accused until the last salary
she received from Wolid International Services Ltd. He submitted that the
prosecution could not prove that the accused obtained the sum of ₦676,000:00 by
false pretences. He therefore urged the Court to discharge and acquit the accused on
Count 3.
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On Count 4,

He submitted that from the evidence given by the prosecution witnesses there were
contradictions on the number of people who entered the office of the accused on
01/06/2017. He submitted that it was the fire incident that caused the accused to lose
control of what was kept in her as her office door was broken and the goods in her
office were displaced bef ore her arrival from the hospital.

Counsel further submitted that the security personnel could have noticed if the
accused had moved out a huge sum of money on 01/06/2017 when she left for the
hospital. He submitted that it could not be ruled out that the sum of N3.4 million
was stolen by one of the persons who broke the door to the office of the accused on
01/06/2017. He contended that the ingredients of offence of stealing has not been
established by the prosecution in this case. He relied on these authorities:

FRN VS.BANKOLE (supra).

C.O.P. VS.UDE (2012) ALL FWLR 1693.
On Count 5, Counsel submitted that the prosecution was confused by stating
that the offences in Counts 3 and 5 were said to have been committed on 01/06/2017
when the incident leading to the said offence took place in June 2016. He submitted
that the prosecution has failed to prove its case in Count 5.

Finally, he urged the Court to discharge and acquit the accused on Count 5
and on all other counts.
In his final written address. Counsel for the prosecution also distilled an issue for
determination, which is:

"Whether the prosecution has proved the charge against the accused
persons (sic) beyond reasonable doubt."
Counsel submitted that proof beyond reasonable doubt does not mean certainty
of truth but a high degree or probability of accused's commission of the alleged
offence. He relied on these authorities:

MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER372

at 373
LORI VS. THE STATE (1980) 12 NSCC 269 at 279.
THE STATE VS.AKPABIO (1993) 4 NWLR (Pt. 286) 204 at 224.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Counsel submitted that a case against an accused could be proved by:

(a) confessional statement of the accused;
(b) circumstantial evidence; and
(c) evidence of eye witnesses of the crime.
He submitted that in the instant case, all the above were present to prove the case
against the accused.

On Count 1, Counsel submitted that in a case of arson under Section 443

[a] of the Criminal Code Law, Cap.34, Laws of Osun State, the trial court can safely
draw inference from the action of the accused on the day of the incident. He relied
on the case of QUEEN VS. IYANDA (1960) NSCC 180. He submitted that the
actions of the accused on the day of the incident showed that she was culpable for
the offence of arson. He stated that the accused locked her office and went out, and
that when fire started in her office and Calls were put to her, she did not pick the
calls. When the accused came back, her first reaction was that the company money
with her had been burnt with Exhibit P5. Counsel referred to the evidence of the
accused that she made Over ₦4 million sale on 31/05/2017 and that she bought stock
from the cashier but failed to pay to the same cashier the sum of N1, 071,000 .00
she was directed to pay by the Management of the Company. He added that there
was no trace of fire surge at the switch, socket wire and on the wall and the electrical
appliances were also working perfectly after the fire incident. Moreover, there Were
partially burnt ₦1,000, ₦500 and ₦200 notes.
Counsel submitted that given the circumstances of this case, it could be safely
inferred that the accused willfully set the office on fire to cover up the stealing or
fraudulent conversion of the Company’s money to her personal use.

He urged the Court to hold that the first count had been proved beyond reasonable
doubt.

On Count 2, Counsel stated that as at 27/05/2017 when the accused presented herself
for audit, she was trading with the sum of ₦4,519,000:00 with a profit of
₦71,000,000:00. On 31/05/2017, she made a false pretence that she was still trading
with the money when she informed PW1 at about 1.00 p.m. that she did not have
enough case to pay ₦1,071,000:00 that she was directed to pay to the cashier.
Counsel stated that the accused allegedly bought stock from the cashier on
31/05/2017, but she did not pay to the said cashier the sum of ₦1,071,000:00 as
directed even though she had the sum of ₦3,800,000:00 with her, which she kept in
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her office which was engulfed by mysterious fire the following day. He added that
there was no trace or the naira denominations she alleged made up the ₦3.8 million.
Counsel submitted that there was pretence by the accused that as at 31/05/2017
she was trading with ₦3.8 million when such money could not found the following
morning. He contended that the accused knew about the falsity, hence her plan to
have her office burnt to cover up the fact of conversion. He submitted that the
burning of her office and her subsequent assertion that the money had been burnt
with Exhibit P5 showed her intention to defraud the company. Counsel submitted
that money is a property capable of being stolen and the accused presented herself
as a worker who would be using the company money to trade for the company to
make profit thereby inducing the company to part with its money only to
fraudulently convert the money and tried to cover it up by setting her office on fire.

He urged the Court to hold that the offence of obtaining by false pretence with
intention to defraud had been proved against the accused beyond reasonable doubt.
On Count 3, Counsel adopted his earlier argument on Count 2, on what the
prosecution needed to prove on false pretences. He submitted that the Company gave
the accused ₦1,000,000:00 (One Million Naira) to work with and she later came to
say that ₦676,545:00 got lost when at the audit the money was intact and only got
lost few days after the audit. He contended that although the accused said that the
money allegedly got lost through good sold on credit and no action had been taken
to recover the money from the said customers .He therefore urged the court to hold
that the prosecution had proved the offence in count 3 before reasonable doubt.

On Count 4, Counsel submitted that the prosecution has proved all the ingredients
of stealing in Section 383 (2) (a) and (f) of the Criminal Code Laws. Cap 34, Laws
of Osun State, 2002. He referred to these authorities:

ADEJOBI VS. THE STATE (2011) 12 NWLR (Pt. 261) 247 at 27

77
ONWUDIWE VS.FRN (2006) 49 WRN 68.
He submitted that the money stolen (₦4,590,000:00) belonged to Wolid
International Services Ltd., it was capable of being stolen and there would fraudulent
taking or conversion by the accused. He urged the Court hold that the count of
stealing had been proved against the accused by the prosecution beyond reasonable
doubts.
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On Count 5, Counsel repeated his arguments and submissions on Count 4 and

submitted that the prosecution had proved its case beyond reasonable doubt against
the accused.
On the defence of the accused at her trial, Counsel submitted that the accused
did not proffer any explanation on the mysterious fire that broke out in her office
few minutes after she was seen sitting down in front of her office when she was the
only one who had access to the office which was found locked and secured with key
when the fire started. He submitted that the accused could not give any reasonable
account on the two sums of money. He stated that the accused first said that the
money must have got burnt with Exhibit P5 but when confronted that there was no
remnant of the higher denominations she claimed up the missing money, she
changed her story and said that the missing money might have been taken away by
some members of staff despite the fact that she met other staff members in front of
her office putting out the fire and brin ging out the burnt items and other properties
in the office.
On the other sum of money, Counsel submitted that the accused first said the money
got lost but later said it was sale on credit, and she never made any attempt to get
the alleged debtors to pay or gave their names. He urged the Court to disbelieve and
reject the defence of the accused.

On facts stated as evidence by the defence Counsel in his address, Counsel urged
the Court to rely on its records and the actual testimonies of the witnesses.

On the issue of alibi not being investigated, Counsel submitted that there was no
alibi, but premeditated arson. He stated that the accused was seen by her colleagues
in the office around 8.00 a.m. and the fire start around the same time or few minutes
thereafter and nobody knew about her where about. The door to the accused's office
was locked and the accused's refused to pick her calls. He submitted that her
different stories that the money must have been burnt with Exhibit P5 and later that
the money must have been taken by the other staff members showed that the defence
of alibi was not available to he accused alibi was not available to the accused.
Furthermore, Counsel submitted that the fact that the doctor was not seen by the
Police Officers when they visited the hospital the accused purportedly went for
treatment is of no effect since the accused testified that she had not been attended to
when she left the hospital and it would take about 5 minutes to get back to the office
from the hospital.
On the issue of the date of the offence in Counts 3 and 5, Counsel submitted that the
law is that when the words "on or about" is used in a charge, the prosecution is
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excused from proving that the offence occurred on that particular date except, of
course, where the accused said that he/she is ignorant of the incident talked about or
that the incident never happened at all. On this he relied on the case of

ANKPEGHER VS. STATE (2018) LPELR-43906 (SC).

Finally, he urged the Court to believe and accept the case of the prosecution and to
reject the defence of accused and to convict the accused as charged.
In his reply on point of law, Counsel for the accused submitted that the case of
QUEEN VS. IYANDA (supra) could be distinguished from the instant case in that
the accused in that case was seen setting fire on a communal hut unlike the present
case where there is no clear evidence of who set fire on the office of the accused.
On Count 2, he submitted that deliberate pretence must be established against the
accused.

The reply on Count 3 borders on facts and I shall not consider the Submissions
thereon. The same goes for submissions on Count 3.

The only issue identified for determination by both Counsel in this case is whether
the prosecution has proved its case beyond reasonable doubt considering the
evidence before the Court. I shall therefore considering the evidence before the court
.I shall therefore consider the provisions of the law and the evidence presented by
the prosecution in other to ascertain whether or not the prosecution has proved its
case beyond reasonable doubt.
On Count 1, the accused was alleged to have committed the offence of arson at
Wolid International Services Ltd., on or about 01/06/2017 , contrary to section 443
(a) of the Criminal Code Law. Cap.34, Laws of Osun State, 2002.
The section provided that:
‘Any person who willfully sets fire to any of the following things-
(a) Any building or structure, whether completed or not,
guilty of a felony and is liable to imprisonment for life.’
In the instant case there is evidence before me that the office of the accused got
burnt on 01/06/2017 sometimes between 8.00 a.m. and 8.45 a.m.The source of the
fire could not be explained but PW1, PW2, PW3 and PW4 testified that the fire
could not have been caused by electrical fault or power surge since the socket was
turned off and did not burn, the plug in the socket was not burnt, so all the wall of
the accused office. The things that got partly burnt in the office was the plastic chair
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on which the accused claimed she put a"Ghana Must Go" bag containing ₦3.8
million, the Ghana Must Go" bag (Exhibit P5) and some other bags which contained
partly burnt ₦50, ₦20 and ₦10 notes and partly burnt stock. The question to be
asked is what caused the fire when there was no electrical fault or power surge?

The accused told the Court that she locked her office before leaving for the
hospital. Although she claimed to have informed one Funmi that she was going to
the hospital, none of the other staff members saw her leaving her office and the
Company premises. The said Funmi was not called to corroborate her statement that
the accused told her before leaving the office.PW1 and PW2 however testified that
the accused did not tell anyone before locking her office and leaving the company
premises on that day .Curiously, the fire started mysteriously shortly after her
departure and her office's door had to be broken for the fire to be put out. Since the
accused was the only one with the key to her office which she locked before leaving
the company premises and the fire outbreak was not caused by the electrical fault or
power surge, the only inference to be drawn is that the accused started the fire in her
office, locked the door and quickly left the company premis es so as to plead alibi
that she was not around when the fire started. Curiously, the items that alibi that she
was not around when the fire started .Curiously ,the items that got burnt were the
bags allegedly containing ₦3,8 million placed on a chair ,the chair (Exhibit P2 ) and
the bags containing burnt money and stocks (Exhibits P4 and P5). Since the fire did
not start from the socket, the plug and wirings on the wall how then did the fire just
start burning the bag on the chair (Exhibit P2) and other bags in the room? As I said
earlier on the only inference to be drawn is that the accused started the fire before
locking her office and left the premises in order to cover up the missing ₦3.8 million,
more so, the money was the first thing she asked about when she arrived back at her
office.

I believe the evidence of the prosecution witnesses on what happened in the

morning of 01/06/2017. I do not believe the evidence of the accused that she
informed one Funmi before leaving the premises since she did not call the said
Funmi to back up her story. Her action in not paying to the cashier thesum of
₦41,071,000:00 as directed by the Company Management on 31/05/2017 when she
herself admitted having N3.8 million in her custody before the close of work at about
5.00 p.m. on 31/05/2017 left much to be desired, more so the accused should not
have brought out the money from the store to keep in her office when she knew she
wanted to go to the hospital and the company always opened for business by 10.00
a.m. on Thursdays. All her actions on that day pointed to a grand design to set fire
to her office to cover up her misdeed.
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Moreover, it was only the accused that was aware of putting the sum of ₦3.8
million in the store on 31/05/ 2017 and bringing it to her office on as 01/06/2017,
How can it be proved that the sum of ₦3.8 million was actually in her office as at
01/06/201/ when the Office got burnt. I therefore hold that the prosecution has put
forward enough evidence to establish a case of arson against the accused and she is
hereby found guilty of offence of arson and she is accordingly convicted as charged
on Count 1.

On Count 2, the accused is alleged to have defraud and under false pretence, the sum
of ₦4,590,000:00(Four million Five Hundred and Ninety Thousand Naira) from
Wolid International Services Ltd., on or about 01/06/2017, contrary to Section 1(1)
(a) and 1 (3) of the Advance Fee Fraud Related Offences Act,2006.
Section 1(a) of the Act provides:
‘(1) Notwithstanding anything contained in any other enactment or
law, any person who by any false pretence, and with intent to defraud.

(a) Obtains from any other person, in Nigeria….for himself Or any

other person; or any property. Whether or not the property is obtained
or its delivery is induced through the medium of a contract induced
by false pretence, commit an offence under this Act".

To succeed in establishing the offence of false pretences, the prosecution must

prove:
i.that there is pretence;
ii.that is emanated from the accused;
iii.and that it was false;
iv. that the accused person knew of its falsity or did
not believe in the truth;
v. that there was an intention to defraud;
vi. that the thing is capable of being stolen;
vii. that the accused person induced the owner to
transfer his whole interest in the property.
See ONWUDIWE VS. FRN (2005) QCCR 99 at 142 (Per Niki Tobi J.S C)

From the evidence before me the accused was a sales representative of Wolid
International Services Ltd., and various Sums of money were allocated to her by the
Company to trade with as a member of staff of the Company. I do not agree with the
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prosecution that the accused obtained these sums of Money by false pretences as
provided under the Advance Fee Fraud and Other Fraud Related Offences Act,
2006.I therefore hold that the prosecution has failed to prove its case against the
accused on Count 2 and this applies Count 3 as well.

On Count 4, the accused is alleged to have committed the offence of stealing the
sum of ₦4,590:00 (Four Million, Five Hundred and Ninety Thousand Naira )
property of Wolid International Services Ltd, on or about 01/06/2017 contrary to
Section 390 (9) of the Criminal Code Law,Cap .34 , Laws of Osun State ,2002.
Section 383 (1) of the Law provides:

“A person who fraudulently takes anything capable or being

stolen, or fraudulently converts to his own use or to the use
of any other person anything capable of being stolen is said
to steal that thing”.
Section 383 (2) (a) and (F) provides

"A person who takes or converts anything capable of being

stolen, is deemed to do so fraudulently if he does so with any
of the following intents:

(a) An intention permanently to deprive the owner of the

thing of it.
(f) In the case of money an intent to use it at the will of the
person who takes or converts it, although he may intend
afterwards to repay the amount to the owner".
The ingredients of the offence of stealing have been held in several cases to be
1. the ownership of the thing stolen;
2. That the thing stolen is capable of being stolen; and
3. The fraudulent taking or conversion by the accused.
See ADEJOBI VS. THE STATE (2011) 12 NWLR (Pt. 261)
247 at 377.
ONWUDIWE VS.F.R.N. (2006) 49 WRN 68.

In the instant case, the money stolen belonged to Wolid International Services
Ltd., a juristic person, thus the first ingredient has been established .The second
ingredient is whether the thing stolen is capable of being stolen.The Supreme Court
has held in ADEOBI VS THE STATE (supra) the every inanimate thing which is
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the property of a person is capable of being stolen. The sum of ₦4,590,000:00 is

money and it is capable of being stolen. The second ingredient has also been
established. What is left to be established is the fraudulent taking or conversion of
the money by the accused.

PW1 gave evidence that the company allocated the sum of ₦4, 590,000:00 to the
accused for trading as at 27/05/2017. This was not denied by the accused .She also
confirmed that as at 5.00 p.m. on 31/05/2017 and the morning of 01/06/2017 when
she opened her office, she had the sum of ₦3.8 million, the property of the company
with her. PW1 also testified that on 31/05/ 2017, he conveyed to the accused the
directive of the company that she should pay the sum of the accused the directive of
the company that she should pay the sum of ₦1,071,000; to cashier on 31/05/2017.
The accused admitted this fact, but stated that she was to pay the money to the
cashier on 01/06/2017 and not 31/05/2017, There is however an admission by the
accused that although she had N3.8 million in her custody as at the close of work on
31/05/2017, she did not pay the sum of ₦1,071,000:00 to the cashier as directed.
There is also evidence before me that the accused took the sum of ₦3.8millon from
the store in the morning of 01/06/2017 and put it in her office, but she did not pay
the sum of ₦1,071,000:00 to the cashier (Funmi) as directed by the company, even
though she claimed to have informed the same Funmi that she was going to the
hospital at about 8.00 a.m. on 01/06/2017.There is therefore uncontroverted
evidence before the Court that at all the relevant time before the accused locked her
office and purportedly left for the hospital on 01/06/2017, the sum of ₦3.8 million
was in her custody. PW1 and PW2 had testified that what they found in the accused's
office when the door was forced open after the fire incident did not include the sum
of ₦3.8 million whether partially burnt or not.

From the evidence before the Court, PW1, PW2 and about three to four
members of staff were still trying to salvage whatever they could from the office of
the accused when she arrived and asked about the sum of ₦3.8million and they told
her that all that had been taken out of her office were on the floor in front of her
office.

I believe the evidence of the prosecution as to what transpired on 01/06/2017.

The action of the accused in refusing to pay the sum of ₦1.071, 000:00 to the cashier
as directed by the company management when she had ₦3.8 million in her
possession at the time was inexplicable. I also find It difficult to understand why the
accused would move the sum of ₦3.8 million from the safety of the store to her
office at about 7.35 a.m. when the Company would open for business at 10.00 a.m.,
and when she was ill and would be going to the hospital for treatment, The actions
of the accused, in my opinion, between the afternoon of 31/05/2017 and the morning
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of 01/06/2017 when the fire broke out in her office looked like a carefully laid out
plan to steal the money in her possession and blame it on the fire incident which she
clearly orchestrated to over her tracks. Unfortunately for her, the fire outbreak was
discovered on time and put out before extensive damage could be done in her office.

I do not believe the suggestion of accused's Counsel that the sum of ₦3.8 million
could have been taken by one of the staff members who came to put out the fire as
that would mean they were aware that the accused put such money in her office.
Furthermore, since the chair on which the bag containing the money was placed
(Exhibit P2) was partly burnt, the money placed on it too was supposed to be partly
burnt and part of it should be found at the scene do not believe that a partly burnt
"Ghana, Must Go" bag (Exhibit P5) containing the sum of ₦3.8 million would be
moved from the scene of the incident without anyone seeing the movement of such
a huge sum of money,more so all the "Ghana Must Go" bags were recovered. The
Counsel for the accused suggested that the money (₦3.8 million) was moved or
transferred into another bag during the time fire was being put out and successfully
taken away by someone else, i do not believe this narrative at all. I believe the money
was never put in the office by the accused in the first place. I believe the accused
fraudulently took or converted the sum of ₦4,590,000:00 which included the sum
of ₦3.8 million which was the property of Wolid International Services Ltd., to her
use and tried to cover the stealing of the money by staging a fire outbreak which
fortunately for the company but unfortunately for her was quickly put out by PW1,
PW2 and some members of staff.

I therefore hold that the prosecution has proved a case of stealing of the sum of
₦4,590,000:00 against the accused beyond reasonable doubt and she is therefore
convicted as charged.

On Count 5, the accused was alleged to have stolen the sum of ₦676,546:00 which
was part of the sum of ₦1 million given to her to trade with by the Company
sometimes in June, 2016. According to PW1, the accused reported a loss of
₦676,000:00 a few days after her account was audited but she could not explain how
the money got lost. PW1 also testified that the company lawyer advised that the
missing sum should be converted to I.O.U.and the sum of ₦25,000:00 be deducted
monthly from the salary of the accused until the missing sum is liquidated and that
the company had so far recovered the sum of ₦325,000:00, leaving a balance of
₦350,000:000.
The accused admitted all the above, but stated that the money got lost as a result
of credit sales she made in order to boost her sales.
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She however did not mention the names of the persons she sold stocks to on credit
to or whether the company policy permitted her to engage in credit sales to
customers. Since the missing money was in her custody at the time she reported the
loss and her explanation was not tenable, it could be safely inferred that the accused
fraudulently took or converted the sum of N676, 545:00 to her use unlawfully and
without the consent of her employer. I therefore hold that the prosecution has
successfully proved a case of stealing of the sum of ₦676,545:00 against the accused
beyond reasonable doubt and she is therefore convicted as charged.

Counsel for the accused had submitted that there was a strong contradiction
as to date and timing of Counts 3 and 5 and thus the prosecution was trying to draw
the Court into the pit of confusion as to the date the offences were committed. The
prosecution Counsel however submitted, on the authority of ANKPEGHER VS.
THE STATE (supra) that whenever a person is facing a charge drafted to have been
committed on or about the date mentioned, the prosecution is excused from proving
that the offence occurred on that particular date except of course, the accused said
that he/she is ignorant of the incident talked about or that the incident never
happened.
I agree with the submission of learned Counsel for the prosecution in this case.
In AKPA VS. THE STATE (2006) LPELR-7603 (CA); (2007) 2 NWLR (Pt. 1019
it was held that:

"It has been held that when the phrase "on or about" is used in a
charge, it expresses some amount of uncertainty. While the word "or"
introduces an alternative, the word "about" means a little more or less
than, "a little before or a little after." Thus when the phrase "on or
about" is used in a charge, it is not necessary to prove the precise date
the alleged offence was committed. See: AWOPEJO Vs. STATE
(2000) 6 NWLR (Pt. 659) 1 at 13 F-G; REX VS. ERONINI 14
WACA 366."Per Kekere Ekun, J.C.A. (as he then was).

In all, I find the accused guilty of the offence of arson in Count 1 and stealing
in Counts 4 and 5 and she is convicted as charged.
She is however found not guilty of obtaining by false pretences in Counts 2 and
3 and she is hereby discharged and acquitted on both Counts.

Allocutus by Abdulsalam Esq: I humbly plead with the Court to temper justice with
mercy. The accused is presently remorseful and she is a nursing mother, plead with
the Court to be considerate because of her children. She is a first offender without
previous criminal record.
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Badiora: We are grateful to this Court for the well considered judgment. On the
allocutus, I wish to state that justice is not a one-way traffic. Wolid International
Services Ltd., is a business run by a young man who is also trying to make ends
meet from bank loans taken to run the business. The company will still have to go
through the rigour of instituting a civil action to recover the sum stolen. We urge the
Court to impose the maximum punishment, Sir.

COURT: I have listened to the allocutus of learned Counsel for the accused and his
passionate plea that the Court should temper justice with mercy. I have also listened
to the submissions of learned Counsel for the prosecution that the maximum penalty
be imposed on the accused.

Throughout the trial of this case, I do not see any remorse in the countenance of
the accused. The evidence before me shows her to be very calculative in her plans
to steal from the company that graciously forgave her actions in June, 2016 by giving
her option to repay the money she could not account for. She went ahead to pull off
a higher heist and attempted to cover up her devilish action by setting her office on
fire. But for the prompt action of the members of staff of the Company like PW1
and PW2, the company could have lost more than the money stolen by the accused.
It is this type of people that are discouraging honest and hardworking Nigerians from
setting up businesses which could create jobs for young jobless Nigerians. If every
member of staff had been pilfering from the Company like the accused, company
would have folded up in no time.

In the light of this, it is necessary to send a stern message to people who, like the
accused, will like to engage in this kind of notorious act.
The accused is therefore sentenced as follows:
COUNT 1- Fifteen (15) years imprisonment without an option of
fine.
COUNT 4 Five (5) years imprisonment without an option of fine.
COUNT 5- Five (5) years imprisonment without an option of fine.
The sentences are to run concurrently.

HON. JUSTICE A.A. ADERIBIGBE

(JUDGE)
23/01/2019
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a. CHIEF (MRS.) GRACE FADEYI

b. CHIEF MRS. ESTHER O. FADEYI
c. MRS. CAROLINE T. FADEYI
(For themselves and on behalf of members
of Chief Michael Fadeyi Family)

V.

(i) GANIYU OLAWALE ADIGUN OLASUPO

(ii) ALHAJI HAMED ODEKANLE
(iii) ALHAJI DAUDA OWOLABI
(iv) ALHAJI OSENI

Osun State High Court

Osogbo Judicial Division

HON. JUSTICE K.M. AKANO (Presided)

SUIT No: HOS/75/2006

MONDAY 2 nd DECEMBER, 2019

SUBJECT MATTER:

ACTIONS –Right of Action – Statute of Limitations

PLEADINGS –Counter Claim – Deed of Conveyance

PLEADINGS –Declaratory Reliefs – Discretion of Court

STATUTE –Evidence Act section 135 – Burden of Proof

STATUTE– Evidence Act section 138(1) – Proving Beyond Reasonable Doubts.

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ISSUES OF DETERMINATION:

1 .Whether the 2nd -4th defendants/counter claimants have proved any ground
for the setting aside of the Deeds of conveyance, Exhibit C- F executed in
favour of the Late Chief Michael Fadeyi.
2 Whether the 2nd -4th defendants/counter claimants' claims are not caught by
the principles of estoppel by standing by, laches and acquiescence.
3 Whether the Plaintiffs/Defendants to counter-claim' Deeds of conveyance is
Exhibits B- F are not entitled to the presumption of due execution and
regularity.
4 Whether the 2nd - 4th defendants/counter claimants' claim are not statute
barred.
5 Whether the 2nd - 4th defendants/counter claimants' claims especially as in
paragraph 3-5 are not fundamentally defective and incompetent for failure to
join necessary parties to this counter-claim.
6 Whether the 2nd 4th defendants/counter claimants are entitled to the reliefs
in the Counter-claim in the overall view of the evidence before the court.

FACT:

The Claim of the Plaintiffs was struck out on their application to withdraw the suiton
the ground that the originating process was defective and that same affected the
jurisdiction of the court. The court was left with only the counter claim of the 2 nd -
4th defendants/counter claimants. The case of the 2-4 defendants/counter claimants
is that the Alaagba family consists of Odekanle and Abo Sections. That they farmed
on the land in issue and exercised other acts and rights of ownership without
interference from anybody and that same was never partitioned between the
2sections. That the land under question was sold to the Plaintiffs by the Abo section
ofthe family fraudulently and that the deeds of conveyance were
forged,manipulated, fraudulently procured and not signed by the then Chief Alaagba
and accredited representatives/principal members of the family.
The plaintiffs’ case however is that the history of the 2 nd -4thdefendants/counter
claimants is unknown to them not being from their family but is aware of only one
Alaagba family which Chief Micheal Fadeyi transacted with between 1963 and 1973
in respect of the land in dispute. That the Alaagba family never made a free grant to
Chief M.A. Fadeyi for educational purposes but sold land to him totaling
approximately 179.142 acres covered by deeds of conveyance duly and validly
executed in his favour with the consent and knowledge of members of the family
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without any fraud or misrepresentation. That the parcels of land were then handed
over to late Fadeyi after the purchase, which he took possession and exercised rights
of ownership. After the death of Chief Fadeyi, the defendant counter claimants then
started disturbing their peaceful possession with that of some of their purchasers.

HELD:

1. Counter claim- meaning of-

Counter claim is by itself, a substantive action which must be proved to the
satisfaction of the court to be entitled to judgement. That is, the counter
claimant must discharge the burden by credible and cogent evidence.
[AWONIYI v SHODEKE &ORS [2006] LPELR 502[SC], JURIC NIG.
LTD v UBN PLC [2000] LPELR 1607[SC], OKECHKWU& ANOR v
NWOSU [2018] LPELR 44893(CA)]

2. Burden of proof in civil matters-

The burden of proof in civil cases is trite to be on the prepondence of
evidence, i.e balance of probabilities and in this instant case, it is upon the
claimants to prove their cases by section 135 of the Evidence Act as
amended. [SAKATI v BAKO [2015] LPELR 2473(SC) and also
AKINGBULU AND ORS. V IDEPEFOR ANDS ORS [2015] LPELR
25793(CA)]

3. Declaratory reliefs- success of it-

Declaratory reliefs are granted at the discretion of the court. A party seeking
same must succeed on the strength of his case and not on the weakness or
admission by the defence. He must plead and lead evidence in proof of his
case by concrete, cogent, sastisfactory, credible and convincing evidence to
succeed. [DONGARI & 1ORS V. SA'ANU (2013) LPELR 22084 CA,
AKINTOYE v FOLATYAN (2014) LPRLR 24125 CA, HENSHAW v
EFFANG AND ANOR 4075 CA]

4. Statute of limitation-
It is trite that statute of limitation prohibits the commencement of stale
claims. “It extinguishes the right to action which is rendered bare and
unenforceable in court of law.
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Muhammed JSC in Texaco Panama Incorp. V. Shell Petroleum Dev. Corp

of Nigeria Ltd (2002) LPELR 3146 [SC] stated thus:-
“The law is clear that a statute of limitation is one which
provide that no court shall entertain proceedings for the
enforcement of certain rights if such proceedings were set on
limit after the lapse of a definite period of time, reckoned as
a rule from the date of the violation of the right”

In otherwords, the essence of limitation law is that the legal right to enforce
an action is not perpetual right but a right generally limited by statute. [Dr.
Tosin Ajayi v. Pricess (Mrs.) Olajumoke Adebiyi & Ors (2012) LPE LR 7811
(SC).]
It is trite that to know whether a case is caught by the statute of limitation,
one must first know when the cause of action accrued as set out by the
plaintiffs. [Fasheun Motors L.T.D v U.B.A LTD [1999] LPELR 6626CA]

5. Criminal allegation-
It is trite that criminal allegations should be proved beyond reasonable
doubts as required by section 135 of the Evidence Act.

Nigerian cases referred to in the Judgment:

Anwoyi& Ors v Shodeke& Ors (2006) LPELR 502 (SC)
Juric Nig. Ltd v UBN Plc (2000) LPELR 1607 (SC)
Okechukwu&anor v NWosU (2018) LPELR 44893 (CA)
Sakati v Bako (2015) LPELR 24739 (SC)
Akingbulu& Ors v Idepefor& Ors (2015) LPELR 25793 (CA)
Dongari& 1 Ors v Sa'anu (2013) LPELR 22084 (CA)
Akintoye v Folayan (2014) LPELR 24125 (CA)
Henshaw v Effang& Anor (2008) LPELR 4075 (CA)
Egbe v Adefarasin (1987) 1 NWLR (pt 47) 213
Ekelogun v Miri (1991) 2 LRCN 613.
Nsiege v Mgbemema (2007) All FWLR (pt 372) 1709.
The administrators of the Estate of Abacha v S.D. Eke-Spiff & 3 Ors (2009)
2 SCNJ 119.
Texaco Panama Incorporation v Shell PetroleumDev Corp of Nig Ltd.
(2002) LPELR 3146 (SC)
Dr. Tosin Ajayi v Princess (Mrs.) Olajumoke Adebiyi & Ors (2012) LPELR
7811 (SC).
Fasheun Motors Ltd v UBA Ltd (1999) LPELR 6620 (CA)
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Nigerian Statutes referred to in the Judgment:

Limitation Law Cap 70, Laws of Osun State
Evidence Act

Counsel:
M.O. Okediya (with S.O. Fayenuwo) for the Plaintiffs/Defendants to the
counter claim
A.O. Sanusi for the 1st Defendant/Defendant to counter claim.
G.A. Adesina (with M. A. Adebayo and F.I. Olayanju) for the 2nd - 4th
defendants / counter claimants.

FULL JUDGEMENT:
This suit was instituted by the plaintiffs on the 5th of June, 2006 and the defendants
filed their statements of defence to same while the 2nd -4tndefendants counter
claimed.
On the 3rd of February, 2016, the Hon, the Chief Judge in her ruling struck out the
plaintiffs claim on their application to withdraw the suit on the ground that the
originating process was defective and that same affected the jurisdiction of the court.

The effect of the above therefore was that the court was left with only the counter
claim of 2nd - 4th defendants/counter claimants.

This case was later re -assigned by the Lordship, Hon, the Chief Judge to my court
on the 19th of June, 2017 for hearing, having completed Pre-trial Conference.
The 2nd - 4th defendants/counter claimant by paragraph 39 of their amended counter
claim, counter claimed as follows:-

(a) A declaration that Gbadamosi Akano, SalawuOlasupo, Sanusi

Akanbi,Samotu Amoo, Jimoh Ajani, Salami Awogoke, Gbadamosi Adisa,
Alimi Akano and all other members of Abo Section of Alagbaa family of
Osogbo who purportedly sold and conveyed parts of Alagbaa family land to
and executed the 4 deeds of conveyance dated (1) 6/11/1968(2) 25/2/1969
(3) 18/9/1973 and (4) 18/9/1973 and survey plan dated18/6/1963 in favour
of late Chief Michael Akintayo Fadeyi did so without the consent and
authority of the Chief Alagbas, the principal members and the accredited
representatives of Alagbaa family at the relevant periods.
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2. An order to set aside the said purported sales and deeds of conveyance purportedly
executed in favour of late Chief M.A. Fadeyi by few but unauthorized members of
Abo Section of Alagbaa family whose names are stated above.
3. Declarations that the purported sales of the various parcels of Alagbaa Family
land during the pendency of this case by the plaintiffs, their Agents and Privies to
(1) Alhaji Seriki Babatunde (a plot of land measuring 50 feet by 100 feet) on
16/4/2012 as evidenced by a sale of land agreement dated 16/4/2012 (2) Mr. Akeem
Abdullahi (a plot of land measuring 50 feet by 60 feet on 2/1/2013 as evidence by a
land sale agreement dated 2/1/2013. (3) Mr. Seriki Babatunde (four plots of land
measuring 50 feet 100 feet each) on 3/2/2012 as evidenced by land sale agreement
dated 3/2/2012, (4) Mr. Taye Babatunde(unspecified size of land for ₦1,
060,000:00) on 22/9/2011 and (5) Taye Babatunde (unspecified size of land for
₦1,000,000:00) on 26/7/2011 as Taye evidence by receipt No. 317 dated 2 6/7/2011
are irregular, unlawful, unauthorized, illegal, null, void and no effect whatsoever.
4. An perpetual injunction to restrain the Plaintiffs and the 1 st as Defendant, their
servants, agents, privies and anybody deriving titles from the plaintiffs (Including
Reverend Francis Falola and Hidden Manna Ministries) from committing further
cats of trespass on the said land and from disturbing, and/or harassing the 2nd to 4th
defendants and all those who lawfully and validly derived their titles from Alagbaa
family of Osogbo from peaceful and quiet enjoyments of the parcels of land sold
and/or granted to them by the two sections of Alaagba family on the land in dispute.

5.An order directing the Plaintiffs, their servants, agents, privies and anybody
claiming through or in trust from the plaintiffs (including Reverend Francis Tunde
Falola and Hidden Manna Evangelical Ministry)to vacate the Alagbaa family land
wrongfully and fraudulently sold and/or granted to them by Late Chief M.A. Fadeyi,
the plaintiffs, their agents and/or privies.
The plaintiffs/defendants to their filed then claimant he Counter Consequential
amended defense to the 2nd - 4th defendants/counter claimant on17 October, 2017
while the 1st defendant filed his own on 24 thof October,2017. However the 2nd - 4th
defendants/ counter claimants filed their reply on the 7th of November, 2017.
Having competed pleading and pre trial conference conducted, the case proceeded
to trial. The 2nd- 4th defendants/counter claimants in proof of their case called 10
witnesses, the 1st defendant to counter claim called one witness while the
plaintiffs/defendants to the counter claim called 2 witnesses. Parties tendered
documents which were admitted in evidence as exhibits.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The case of 2nd - 4th defendants/counter claimants is that the Alagba family consists
of Odekanle and Abo Sections, their ancestors being Timehin or Olutimehin with
the reigning Alaagba as the overall head of the family .That they farmed on the land
and exercised other acts and rights of ownership without interference from anybody
and that same was never partitioned between the 2sections. That the Alagbaa
Chieftaincy is held in rotation between the two sections of the family .While the
Alaagba is head the family, each of the sections will have a sectional head .That no
section of the family is entitled to sell or grant any part of the family land without
the consent and authority of the reigning Chief Alaagba , head of the 2 sections and
principal members of the family .

That the land under question was sold to plaintiffs by the Abo section of the family
fraudulently and that the deeds of conveyance were forged, manipulated
fraudulently procured and not signed by the then Chief Alaagba and accredited
representatives/principal members of the family.
The plaintiffs case however is that the history of the 2 nd- 4thdefendants/counter
claimants is unknown to them not being from their family is aware of only one
Alaagba family which Chief Micheal Fadeyi transacted with between 1963 and 1973
in respect of the land in dispute. That the Alagba family never made a free grant to
Chief M.A. Fadeyi for educational purposes but sold land to him totaling
approximately 179.142 acres covered by deeds of Conveyance duly and validly
executed in his favour with the consent and knowledge of members of the family
without any fraud or misrepresentation.

That the parcels of land were then handed over to late Fadeyi after the purchase, in
the presence of witnesses including the 1st plaintiff to which he took possession and
exercised rights of ownership. That the late Chief Fadeyi established Residential
Quarters, Children Boarding School, Ire-Oluwo School, Fadeyims and Fadeyi
Motors Nig. Ltd Workshop and warehouse on the land. He also sold portion of the
land to various developers various developers who were never the land challenged
and employed members of Alaagba family as labourers on the while some members
of the Alaagba family attended his school.
That after the death of Chief Fadeyi the parcels of land were inherited by his family
who made a layout, allocated some portions to family members, sold some vacant
portions to developers before the defendants/counter claimants then started
disturbing their peaceful possession with that or some of their purchasers.
The defence of the 1stdefendant is that his father was deceived to thumbprint some
documents in respect of some portions of land not granted to him by the family. That
is that his father and other people who signed the deeds or conveyance relied upon
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

in this case by the plaintiffs did so without the consent and authority of the Chief
Alaagba.
At the close of their cases, parties filed, exchanged and adopted their respective final
written address. The plaintiffs/defendant to the counter claim in their counsel's final
written addresses raised 6 issues for determination thus:

1. Whether the 2nd -4th defendants/counter claimants have proved any

ground for the setting aside of the Deeds of conveyance, Exhibit C – F
executed in favour of the Late Chief Michael Fadeyi.
2. Whether the 2nd -4th defendants/counter claimants' claims are not caught
by the principles of estoppel by standing by, laches and acquiescence.
3. Whether the Plaintiffs/Defendants to counter-claim' Deeds of conveyance
is Exhibits B F are not entitled to the presumption of due execution and
regularity.
4. Whether the 2nd – 4th defendants/counter claimants' claim are not statute
barred.
5. Whether the 2nd - 4th defendants/counter claimants' claims especially as in
paragraph 3 - 5 are not fundamentally defective and incompetent for failure
to join necessary parties to this counter-claim.
6. Whether the 2nd- 4th defendants/counter claimants are the Counter-claim
in the overall view of the evidence before the Court.
The 2nd-4th defendants/counter claimants raised 7 issues thus:

1.Whether the counter claimants' claim is stale and statute barred. (this issue
is Similar to issue No. 4 formulated by the plaintiffs' Counsel)
2.Whether the counter claim is caught by the principles or estoppels of
Standing by, laches and acquiescence. (This issue is similar to issue No. 2
formulated by the plaintiffs' counsel)..

3.Whether the proper parties are not before the court in this case and whether
this court cannot effectively determine the counter claim based on the present
parties. (This issue is similar to issue No.5 formulated by the plaintiffs
counsel).
4. Whether the purported sales and transfers of Alaagba family land made
and the deeds of conveyance executed by some members of Abo Section of
Alagbaa family as Beneficial Owners in favour of Late Chief M.A. Fadeyi
 136
SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

without the consent and authorities of the reigning Chief Alagbaa and the
overall head of Alagbaa the Principal members of Abo and Odekanle
sections of Alaagba and the concealment of the said title documents from
Alagba family until this case was filed do not amount to abuse of priviledge
and trusts and are not ultra vires, unlawful, illegal, fraudulent , irregular,
invalid, null, void, of no effect etc and liable to be set aside by this Court,
considering the facts and circumstances of this case (This issues No 1 and 3
formulated by the plaintiffs' counsel)

5. Whether the purported sales of land admittedly made by the plaintiffs and
their agents and privies after the commencement of this action and during
the subsistence of two orders of interlocutory injunction are not void and
liable to be set aside orders by this Court.

6. Whether the counter Claimants have not discharged the onus and burden
of proof required of them to enable them succeed in their counter claim (This
issue is similar to issue No 6 formulated by the plaintiffs Counsel).

7 Whether or not the customary arbitration embarked upon by the Late

Ataoja of Osogbo and his chiefs are binding on the parties.

However, the 1 st defendant's counsel raised one issue as to whether or not an

unpartitioned piece or parcel of family land can be sold and transferred by members
of the family without the consent and authority of the Head and Principal members
of the family?

As stated earlier, the claim of the plaintiffs/defendants to counter claim was

struck out on the 3rd of February, 2016 and we are left with the 2 nd-
4thdefendants/counter claimants claims as quoted above.

It is trite that a counter claim is by itself, a substantive action which must be proved
to the satisfaction of the court to be entitled to judgement. That is, that the counter
clamant must discharge the burden by credible and cogent evidence

Anwoyi& Ors v Shodeke& Ors (2006) LPELR 502 (SC)

Juric Nig. Ltd v UBN Plc (2000) LPELR 1607 (SC)
Okechukwu&anor v Nwosu (2018) LPELR 44893 (CA)
The burden of proof in civil cases is trite to be on the preponderance of evidence,
that is, balance of probabilities and in this case it is on the counter-claimants to prove
their case by Section 135 of the Evidence Act as amended.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Sakati v Bako (2015) LPELR 24739 (SC)

Akingbulu& Ors v Idepefor& Ors (2015) LPELR 25793 (CA)
It is trite, that though declaratory reliefs are granted at the discretion of the Court. A
party seeking same must succeed on the strength of his case and not on the weakness
or admission by the defense. He must plead and lead evidence in proof of his case
by concrete, cogent, satisfactory, credible and convincing evidence to succeed.
Dongari& 1 Ors v Sa'anu (2013) LPELR 22084 (CA)
Akintoye v Folayan (2014) LPELR 24125 (CA)
Henshaw v Effang & Anor (2008) LPELR 4075 (CA)
I want to adopt for consideration the issue raised by the 2nd-
4thdefendans/counter claimants' counsel as they are encompassing or the issues
raised by the other counsel.
Before I go into the full consideration of the issues raised, I want to consider the
submissions of the 2nd - 4thdefendants/counter claimants' Counsel that the evidence
of PW1 be struck out and discountenance his statement as he was unable to identify
and adopt his written statement due to bad sight and old age.
The Plaintiffs' counsel submitted that the application is misconceived and misplaced.

It should be put on record that the evidence of PW1 before the Court is that he
could not remember that he swore to any written statement on oath and that he was
not the one that signed the statement shown to him. The matter was then stood down
on Mrs. Fasasi's application as she appeared for the 2 4defendants on the 3rd of July,
2017.
On resumption, Mrs. Fasasi applied for the witness to be discharged, an application
opposed by Mr. Okediya as a result of which Mrs. Fasasi applied that the witness be
allowed to conclude his evidence and same was granted in the interest of justice.
PW1 under cross-examination maintained that he did not swear to any statement
before the Court.
The application of Mr. Adesina that his evidence Out and be struck discountenanced
is therefore unknown, strange, misconceived and misplaced as same is not based on
what transpired in Court on the 3rd of July, 2017 when PW1was taken by G. Fasasi.
On this, I want to appeal to senior Counsel who send junior Counsel to Court that
they be properly debriefed after court session. However the best is to apply to court
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

for its record of proceedings which will be made available on payment of necessary
fees.
In the circumstance, I hold that the testimony of PW1, Alhaji Hammed Odekanle
shall not be stuck out and discountenance as it forms part or the case of the 2nd- 4th
defendants/counter claimants.

The 1st issue for consideration is whether this case is stale, statute barred, caught by
estoppels of standing by, laches and acquiescence. The plaintiffs/defendants to
counter-claims' Counsel submitted that the land transactions between the Late Chief
Fadeyi and the Alaagba family were executed between 1963 - 1973 though the 2nd–
4th counter Claimants claimed not to be aware of Exhibit B - D.

However same were admitted by PW3, PW4, PW5 and PW10 who were all aware
or Fadeyi Peugeot Motors Nig Ltd since 1979/1980 and Fadeyi Housing Estate
established about 40 years ago.

He concluded that late Chief Fadeyi was in possession of the land in dispute, on
same pursuant to the Deeds of Conveyance in Exhibits B-F for over 40 years without
any challenge or disturbance while alive. That members of the Alaagba family
entered unto the land only after his death.

He added that the cause of action arose in 1979- 1982 when Fadeyi Motors was
established while the counter claimants filed this action on the 7 th of May,2007
contrary to Section 3 of the Limitation Law of Osun State and therefore Statute
barred.

Egbe v Adefarasin (1987) 1 NWLR (pt 47) 213

Ekelogun v Miri (1991) 2 LRCN 613.
On the principle of estoppels by standing by, laches and acquiescence, he submitted
that the witnesses of the counter claimants having admitted that late Chief Fadeyi
had many structures on the land and sold part of the land to other people who built
on the land, that is, that he exercised right of ownership and possession without any
challenge or disturbance by the family, they are caught by the principles of laches,
acquiescence and estoppel having stood by for so long.

Nsiege v Mgbemema (2007) All FWLR (pt 372) 1709.

However, the 2 nd- 4th defendants/counter claimants' counsel submitted on the
principle of statute barred that by their amended notice of counter claim, reply and
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

evidence of PW2 - PW9 and exhibits, the cause of action arose in this case in the
year 2000, while the counter claim was filed on the 7 th of May, 2007.
This is also supported by the admission of the plaintiffs/defendants to counterclaim
through the letter written by late Chief K. Odetoyinbo to warn the Alaagba family.
Therefore the counter claim was filed within the period the cause of action accrued
and not statute barred.

On the other hand he submitted that assuming without conceding that the cause of
action arose more than 10 years before the counter claim was filed in2007, he
submitted that Section 3 of the Limitation Law of Osun State is not applicable to
this case as same falls within the exception in Section 33 (1), (2) and (3) of the law.
This is so because the counter claim raised the issues of fraud, illegality,
concealment of facts and title documents, abuse of priviledge breach and abuse of
trust which are exceptions to the general rule of limitation and same having been
proved.
The administrators of the Estate of Abacha v S.D. Eke-Spiff & 3 Ors(2009) 2
sCNJ 119.
On principles of estoppel of standing by, laches and acquiescence, he submitted that
only 30.29 acres of land was granted to the plaintiffs/defendants to counter claim
and urged the court to hold that the defendants/counterclaimants are still in peaceful
possession of the land in dispute and that they did not wave their right to complain
about the trespass. It is trite that the statute of limitation prohibits the commencement
of stale claims. It extinguishes the right to action which is rendered bare and
unenforceable in a court of law.

Muhammed JSC in Texaco Panama Incorporation v Shell Petroleum

Dev Corp of Nig Ltd. (2002) LPELR 3146 (SC) stated thus:-

“The law is clear that a statute of limitation is one which provides

that no court shall entertain proceedings for the enforcement of
certain rights if such proceedings were set on foot after the lapse of a
definite period of time, reckoned as a rule from date of the violation
of the right “

In other words, the essence of limitation law is that the legal right to enforce an
action is not perpetual right but a right generally limited by statute.

Dr.Tosin Ajayi v Princess (Mrs.) Olajumoke Adebiyi& Ors (2012)

LPELR 7811 (Sc).
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

It is trite that to know whether a case is caught by the statute of limitation ,one must
first know when the cause of action accrued as set out by the Plaintiffs, here the
counter claimants in their pleadings, exhibits, and evidence of their witnesses in
court.

Fasheun Motors Ltd v UBA Ltd (1999) LPELR 6620 (CA)

Exhibits B- F are deeds of conveyance dated as follows which were all duely
registered :-
•Exhibit B- 22/10/1963
•Exhibit C - 6/11/1968
•Exhibit D - 25/2/1969
•Exhibit E 18/9/1973
•Exhibit F - 18/9/1973

The 2nd- 4th defendants/counter-claimants Counsel in his written address as stated

earlier submitted that the cause of action arose in year 2000 and the counter claim
was filed on the 7th of May, 2007.
By the evidence of the witnesses of the 2nd - 4th defendants/counter-claimants
however, they stated as follows under the cross examination: -
Pw3 Hammed Olawale Adeoye stated thus: -
“...It is true that there is only one Alaagba family in Osogbo. It is
true that there is only one Alaagba Compound. It is true that the
late Chief Fadeyi had his personal Compound on the land in
dispute.
.. .I am aware he also had the Fadeyi Motors Nig Ltd in 1979/80

.... I am aware that there is a lot of development on the land

before the year 2006

I am aware that one of those developing the area is Reverend Falola of

Hidden Manna Ministry.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

I am aware that Reverend Falola bought this land from Late Fadeyi

.... It is true that the vendors in Exhibits B -F are members of than Alaagba
family.

...I am not aware whether the vendors in Exhibits B - F complained or not

whether their signatures were forged.
.....I am aware that none of the vendors in Exhibits BF was
Sued in_ Court for unlawfully selling any portion_ of the Alaagba
family land".
PW 4 Alhaji Raifu Ayanloye stated under cross examination:-

“.....I know Fadeyi Motors. It is true that Fadeyi established the

Fadeyi Motors around 1980 to 1981...”
PW5 Alhaji Raimi Murtala Bolarinwa under cross-examination stated:-
...It is true that that I know the land in dispute very well.....
I am aware that the personal house of Chief Fadeyi is on the land in dispute.

I am aware that Fadeyi Housing Estate is on the land in dispute. I know it

has been there for about 40 years now...
...It is true that that Ramat Agro Allied Industry is on the land in dispute.

The Fadeyi Motors is also on the land in dispute. I am aware that the Alaagba
family sued Chief Fadeyi for trespass when he was alive. I do not know the
particulars of the case. The case was struck out,
I have heard of Oseni Alao before, he was once the head of Alaagba family
I have heard of Gbadamosi Adisa and Alimi Akano before

It is true that that all the above name were principal members of theAlaagba
family when they were alive..
PW6 Ganiyu Ojeniyi stated thus under cross examination.
“...I worked between 1980 and 1985 at Ife-Olu Grammar School under
Chief Fadeyi
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

I know the land in dispute very well

I am aware of Fadeyi Motors...
I am aware of the land where tick trees are planted
I am aware that no member of the Alaagba family ever disturbed me
on the land which Chief Fadeyi told me to Work..
Fadeyi Residential quarters, Fadeyi Motors and Tick trees plantation
are on the land in dispute together with the children Boarding School
.
PW7Chief Gabriel Ojo Oparanti stated under cross-examination thus:
I know the land in dispute very well
Know that Ifeoluwa Grammar, Children Boarding School and some
other residential houses are on the land.
I know that Ifeoluwa Grammar School and Children Boarding School
have been on the land for about 50 years now.
I am aware that Fadeyi Motors is on the land in dispute. I do not know
for how long it has been on the land.
It is true that when Chief Fadeyi was alive there was never a report of
trespass against him.
PW8 MoshoodAdedokun under cross examination stated as follows: -

It is true that I knew Chief Fadeyi and his family in that area since I was a
child.

I knew Chief Fadeyi established Ifeoluwa Grammar School, Children

Boarding School, Fadeyi Quarters,
I am aware that he had Ramat Agro Allied Industries Ltd.

It is true that the structures I stated above are on different portions of ijetu
land
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Ifeoluwa Grammar School has been established for more than 40 years now
together with the children Boarding School.
Fadeyi Motors is not up to 40 years. It was established in the 1980s

I was not there when Chief Fadeyi was granted land in line with paragraph
10 of my statement.
I do not have any document to show for the grant to Chief Fadeyi”
PW9 Wasiu Adekunle Iyanda stated under thus:

......It is true that I prepared Exhibit A with Surveyor Babarinde reflecting all
the survey plans of Chief Fadeyi with the beacons.

It is true that the people I mentioned in my paragraph 9 as having purchased

land as reflected in Exhibit A purchased land already surveyed by Chief
Fadeyi......
It is true that in the area marked Peugeot Company in Exhibit A there is an
existing building in same. I do not know when he building there was built.
The name on the building is Peugeot Company. I do not know the owner of
the building

It is true that the area marked Ramat Agro Allied Company is not just land
but has a building on it. I do not know the owner of the building or when it
was built"
PW10 Alhaji Dauda Owolabi stated under cross-examination thus: -
".....It is true that apart from the land in dispute there is no relationship
between the Alaagba family and late Chief Fadeyi.

It is true that Fadeyi did not know the history and management of the
Alaagba family...

......The family does not have any document to show for the grant of 30.29
acres I referred to in my paragraph 13..

It is true that all the vendors in Exhibits B, C, D, E and F are members of the
Alaagba family.
It is true that before the Fadeyi family instituted this action in 2006.
My family did not institute an any action against the Fadeyi family for
trespass"
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From the testimony of the witnesses of the plaintiffs under cross -

examination as quoted above the following can be deduced :

1.That there is Only one Alaagba Family in Osogbo and one

AlaagbaCompound in Osogbo.
2. That one Oseni Alao was once the head of the Alaagba family
and a principal member of the family
3.That Gbadamosi Adisa and Alimi Akano were at one time or
the other principal members of the Alaagba family before
4.That the Alaagba family does not have any document to
Support their alleged grant of 30.29 acre of land to Chief Fadeyi.
5. That the vendors in Exhibits B, C, D, E and F are members of
the Alaagba family who never complained that their signatures were
forged on any documents.
6. That the late Fadeyi had his personal compound/residential
quarters on land in dispute for about 40 years

7. That the late Fadeyi had Fadeyi Motors Nig. Ltd on the land in
dispute which he established in 1979/80 or 1980/81 or in 1980s with
an existing building.

8. That Ramat Agro Allied Industry is on the land in dispute

established in 80s with an existing building.
9) That Fadeyi planted tick tree on the land in dispute.
10) That the late Chief Fadeyi established the Children Boarding
School and Ifeoluwa Grammar School about 50 years/for more than
40 years.
11) That Chief Fadeyi surveyed the land in dispute

12) That no members or the Alaagba family disturbed the

workers of late Chief Fadeyi while working on the land in disputes.
13) That no member of the Alaagba family Chief Fadeyi on the
land in dispute before his demise

14) That members of the Alaagba family saw the physical

structures owned by the late Chief Fadeyi on the land dispute.
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15) That the Alaagba family never instituted any action for
trespass against Chief Fadeyi while he was alive
Exhibits B, C, D, E and F as stated earlier were executed between 1963 and 1973
while the action was instituted by the plaintiff on the 5th of June, 2006 and the
defendants counter-claimed on the 7th of May 2007.

From the admission by PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9 and PW10
as quoted above, it is very clear that the plaintiff were aware of the possession and
occupation of the land in dispute by the late Chief Fadeyi and did nothing to
challenge him trespass.They admitted seeing physical structures on the land and they
never challenged the late Chief Fadeyi.

The 2nd – 4th defendants/counter claimants raised the issue of Fraud, forgery, deceit
and manipulation etc

It is trite that these are criminal allegations that should be proved beyond
reasonable doubt by Section 135 of the Evidence Act. By Section 138 (1) of the
Evidence Act, the burden of proof is on the 2nd - 4thdefendants/counter claimants
who raised the same . Though these were pleaded by the 2nd -4th defendants/counter
claimants , but this is enough. There is no evidence presented by the 2nd -4th
defendants/counter claimants, but this is enough. There is no evidence presented by
the 2nd - 4thdefendants/counter claimants and their witnesses in proof of these
allegations. This case does not therefore fall within the exceptions in Section 33 of
the Limitation Law Cap 70, Laws of Osun State having failed to lead evidence in
proof of the alleged criminal offences pleaded. Particularly as pleadings of parties is
not the same as evidence led in support of claim. The claim of the 2nd 4th
defendants/Counter claimants is therefore deemed abandoned as same was not
supported by any evidence in proof of same.
I therefore hold that the 2nd – 4th defendants /counter claimants failed to prove
these criminal allegations beyond reasonable doubt.
As stated earlier, Exhibits B, C, D, E and F were executed between 1963 – 73 while
the counter claim was filed on the 7 th May, 2007.That is, after about 30 years the last
of the exhibits was executed.

Exhibits B, C, D, E and F have been in existence for more than 20 years.They are
therefore to take the benefit of the presumption of due execution and regularity given
to documents that are 20 years old or more.More so the counter claimant were not
able to prove all the criminal allegations raised against exhibits B, C, D, E and F.
They were also unable to prove any ground setting aside of all the deeds of
conveyance executed in favour of the late Chief Michael Fadeyi. Particularly more
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so, as they could not show any document in support of the alleged grant from the
Alaagba family to late Chief Michael Fadeyi.
Exhibits B, C, D, E and F are therefore deemed regularly made between parties
named therein.

In addition, from the testimony and admission of PW3, PW4, PW5, PW6,PW7,
PW8, PW9 and PW10, under cross examination of the existence of physical
structures on the land in dispute owned by late Chief Fadeyi, that is Fadeyi Motors,
Residential Quarters, Children Boarding School, Ramat Agro Allied,Ifeoluwa
Grammar School, Tick Plantation etc built in the 1980s; sale of land by late Chief
Fadeyi to some people including Reverend Francis Tunde Falola and Hidden Manna
Ministries and others, the only interference is that the late chief Fadeyi owned the
land he surveyed it and was in possession of same.
Even if the calculation of the 1980s is done with the last date of the 1980s which
is 1989, taking into consideration when the counter claim was filed is still with a
difference of 18 years. This is also outside the period allowed by the law and this
suit is still caught by the limitation law and is statute barred.
By the counter claim the 2nd -4th defendants/counter claimants, they are stylishly
questioning the authority or the previous principal members of the Alaagba family
in the execution of Exhibits B, C, D, E and F.The 2nd -4th defendants /counter
claimants do not have the authority to do. They even admitted attending the
Children Boarding School and Ifeoluwa Grammar School established by the late
Chief Fadeyi on the land in dispute. It can therefore be reasonably inferred and
concluded that as at when the transactions in Exhibit B,C, D, E and F were made
they were Children who had no say decisions taken by the principal members of the
family. The 1st defendant was even substituted for his late father in this suit.
I therefore hold that the counter claim of the 2nd - 4th defendants/counter claimants
is caught by the limitation law. The counter claim is statute barred.
In the Circumstance, the counter claim of the 2nd - 4th defendants/claimants is
hereby dismissed.

HON. JUSTICE K. M.
AKANO
JUDGE
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KANMI AJIBOLA

V.

GOVERNOR OF OSUN STATE & 2 0RS

OSUN STATE HIGH COURT

ILESA JUDICIAL DIVISION

HON. JUSTICE O.D. AFOLABI (Presided)

SUIT NO: HIL/M47/2016

THURSDAY 14TH
DECEMBER, 2017

SUBJECT MATTER:
JURISDICTION- Suit – State High Court
STATUTES - State of Osun Land Use Charge law 2016
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STATUTES - Issurance of Land Use Charge demand notice in the absence of a

Commissioner
STATUTES - Difference between Osun State and States of Osun
STATUTES - Laws enacted by members of State of Osun House of Assembly-

STATUTES - Schedule in the Act-

STATUTES - Proper approach of court to interpretation of statutory provisions

PRACTICE AND PROCEDURE - Submission of Counsel

STATUTES - Power of the Governor of a state to appoint Permanent Secretary to

act in office in relation to section 208(1) (2) (c) of the 1999 CFRN -

WORDS AND PHRASES- Jurisdiction

ISSUES:
1. Whether this court has jurisdiction to entertain this suit?

2. Whether the year 2016 Land Use Charge annual demand notice dated 25th July
2016 with Notice Number 23410450 served on the plaintiff is valid in the absence
of Commissioner for Finance
3. Whether the State of Osun Land Use Charge Law 2016 is lawful having been
enacted by a Legislature not known to the Constitution of the Federal Republic of
Nigeria 1999 (as amended)?

FACTS:
The Plaintiff is a Legal Practitioner, a Nigerian and an indigene of Osun State. He
carries on his Legal Practice in Osun state. On the 15th day of August 2016, a State
of Osun Land Use Charge Annual demand notice dated 25 day of July 2016 and
signed by one Mrs. A .Ogunlumade, Permanent Secretary, Ministry of Finance was
served on him as property owner of No. 42, Onigbogi Street, Off Ibala Ilesa West.
The notice demanded for payment of land charges in respect of the property from
him. To the plaintiff, the land use charge notice issued pursuant to State of Osun
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Land Use Charge Law 2016 is an illegal one since the law was enacted by a non-
existing House of Assembly .In addition, to the plaintiff the only competent officer
to issue such notices if at all is the Commissioner for Finance and a Commissioner
having not been appointed in Osun State as at the time of the issuance of the notice,
the notice was invalid and should be declared as such.
The 1st and 3rd defendants did not deny that the 2nd defendant used the name State
of Osun House of Assembly in the making of State of Osun Land Use Charge Law
2016. They however contended that, there is nothing unconstitutional about it. 1st
and 3rd defendant further contended that the state Land Use Charge Law 2016 is
operable in the absence of a commissioner. They further challenged the jurisdiction
of the court to hear the case on the ground that the law stipulates mode of settlement
of grievances for anything pursuant to the law and that plaintiff lacks standi to
institute the suit among other things. The 2nd Defendant admitted that as at the time
exhibit "A" was issued, there was no Commissioner in office.

HELD:
1. Meaning of Jurisdiction-
Jurisdiction is the authority which a court has to decide matters which are
litigated before it or to take cognizance of matters presented in a formal
way for its decision. The limits of this authority are imposed by the
constitution statute, charter or commission under which the court is
constituted and may be extended or restricted by similar means. If no
restriction or limit is imposed, the jurisdiction is said to be unlimited. If the
language of the constitution is clear and unambiguous the court must
interpret its plain and evident meaning. [Chief Obasanjo v. Alhaji Yusuf
(2004) LPELR-2151 (SC) 30, Ebhodaghe Vs Okoye 2004) 18 NWLR (Pt.
905) 242.]Also in the case of Egharevba v.Eribo & Ors (2010)9 NWLR
(Pl1199).411. The Supreme Court Per Adekeye JSC, as he wasthen also
held as follows:

"Jurisdiction is a term of comprehensive import embracing ever

kind of judicial action. It is the power of a court to decide a
matter in controversy and presupposes the existence of a duty
constituted court, with control over the subject matter and the
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

parties. Jurisdiction also defines the power of the court to inquire

into facts , apply the law, make decisions and declare judgment.
It is the legal right by which judges exercise their authority
.Jurisdiction is equally to court what a door is to a house .

That is why the question of a court's jurisdiction is called a

threshold issue, because it is at the threshold of the temple of
justice. Jurisdiction is a radical and fundamental question of
competence, for if the court has no jurisdiction to hear the case,
the proceedings are and remains a nullity however well
conducted and brilliantly decided they might have been.

A defect in competence is not intrinsic but rather extrinsic to

adjudication"

2. Jurisdiction of the state court –

Section 6 of the constitution of the Federal Republic of Nigeria 1999 (as
amended) vested judicial power of the Federation in the Superior courts of
record created by the Constitution. Incidentally, the High Court is one of
such court. [Section 6 (5)(e) of the constitution].Section 6 (6) (b) of the 1999
constitution equally provides, that the judicial power vested in the court by
the constitution; "shall extend to all matters between person or between
government or authority and to any person in Nigeria, and to all action
and proceedings relating thereto, for the determination of any question
as to the civil rights and obligations of that person."

Section 272(1) of the 1999 CFRN as amended further provides:

“Subject to the provisions of section 251 and other provision of this

constitution, the High Court of a states shall have jurisdiction to hear and
determine any civil proceedings in which the existence or extent of a legal
right, power, duty, liability, privilege, interest, obligation or claim is in
issue or to hear and determine any criminal proceedings involving or
relating to any penalty, forfeiture, punishment or other liability in respect
of an offence committed by any person”

The affidavit evidence having disclosed that plaintiff is contesting the

legality of the State of Osun Land Use Charge Law 2016, what other court
has jurisdiction to hear such a case if not the State High Court in view of the
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provision of the 1999 CFRN (as amended) referred to above. The objection
to the jurisdiction of the court on the ground of locus standi in my view is
too far fetched.....Consequently, I hold that the objection to the jurisdiction
of this court by the defendants is misconceived baseless and without merit. I
therefore dismissed the objection.

3. State of Osun Land Use Charge Law 2016- Purpose and Essence of
consolidation-
The law provides for the consolidation of all property and land based rates
and charges payable under the land rate law, the Neighborhood improvement
Charge Law and tenement rates Law in the state into a new Land based
charge and called property land use charge. The essence of the consolidation
in my view is to remove multiplicity of laws touching on rates and charges
in the state.

4. Power of the Governor of a state to appoint Permanent Secretary to act in

office in r elation to section 208(1) (2) (c) of the 1999 CFRN-
Section 208(1) provides that"Power to appoint persons to hold or act in the
offices to which this section applies and to remove persons so appointed
from any such office shall vest in the Governor of the state. Section 208 (2)
provides:

"The offices to which this section applies are

a.
b.
c. Permanent secretary or other chief executive in any ministry
department of the Government of the state howsoever designate

There is nothing ambiguous or complicated in the interpretation of the above

provision . The Section merely provides for an appointee of government to
act and function in the office to which he was appointed to as a permanent
secretary. He must act in the office of Permanent Secretary. The Governor
cannot confer power or duties not so concerned the office of Permanent
Secretary by an enabling statute to power or perform such duties. With
respect to counsel, the interpretation he gave to the section is misleading and
inappropriate. It is therefore discountenanced....
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

The doctrine of necessity is the basis on which extra-legal action by state

actors, which are designed to restore order, is found to be constitutional. The
question now is, was the issuance of Exhibit "A" by the Permanent Secretary
Ministry of Finance justified by this principle. To my mind, the answer is in
the negative. Section 192(1) of the 1999 CFRN makes provision for
appointment of commissioners by the Governor of the state. Section 193 of
the constitution provides for the executive responsibilities of the
commissioner. In the instant case, it was the Governor of the State that did
not appoint commissioners to perform their duties as at the time, Exhibit "A"
was issued and served on the plaintiff. The reluctance of the Governor in
carrying out the provision of Section 192 of the constitution to my mind is a
matter of choice so the issue of necessity could not have arisen in the present
case.

5. Issurance of Land Use Charge demand notice in the absence of a

Commissioner-
The joint reading of Sections 2(3), 4(1), (2), and 10(1) of the State of Osun
Land Use Charge Law clearly does not contemplate issuance of Land Use
Charge demand notice in the absence of a Commissioner . The use of the
words 'shall’ in almost all the sections dealing with the duties of the
Commissioner impose by the law shows that it is only the commissioner that
could give such directive. To crown it all, Section 23 of the law defines the
"Commissioner" to "means Commissioner for Finance.

6. Difference between Osun State and States of Osun-

There is a world of difference between the two names. The name "Osun
State" does not allow of any other interpretation apart from a unit that forms
component part of Nigeria while the name "State of Osun'" is ambiguous and
capable of different interpretation. It could be interpreted as referring to a
unit forming component parts of the Nigeria Federation or as the situation of
things in the State. This type of situation must be avoided.

7. Laws enacted by members of State of Osun House of Assembly-

Having taken office as members of Osun State House of Assembly, any
LAW enacted by the 2 nd defendant must be addressed as having been made
by Osun State House of Assembly and not by State of Osun House of
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Assembly. The combine reading of Sections 4(7), 90, and 940(1) of the 1999
Constitution is a pointer in this direction. Moreover, in view of my findings
that what the 1999 CFRN (as amended) creates is Osun State, and not State
of Osun, there could not be a House of Assembly properly so called as State
of Osun House of Assembly. Such House of Assembly does not exist.

8. Schedule in the Act-

It is trite law that the schedule is part of the act and used in construing
provisions in the body of the Act. The provisions in the schedule will
therefore be construed in the light of what is enacted in the Act and cannot
override the body of the statute. The schedule is however subject to the main
Act, it cannot override the plain words of a Statute: this is apt because in the
event of any contradiction between the schedule and the enacting clause, the
latter prevails. See ADEBUSUYI VS INEC & ORS (2009) LPELR-3599
(CA) at 28 (Paras C-F)
9. Proper approach of court to interpretation of statutory provisions-

It is trite law that one of cardinal rules of construction of written instruments

is that the words of a written instrument must in general be taken in their
ordinary sense notwithstanding the fact that any such Construction may not
appear to carry out the purpose which it might otherwise be supposed was
intended by the maker or makers of the instrument. The rule is that in
construing all written instruments the grammatical and ordinary sense of the
words should be adhered to, unless that would lead to some absurdity or
some repugnancy or inconsistency with the rest of the instrument the
instrument has to be construed according to its literal import unless again
there is something else in the context which shows that such a course would
tend to derogate from the exact meaning of the words. [Obianwuna
Ogbunyiya & ors v. Obi Okudo & ors (1979) LPELR 2295 (SC) at 23-24,
(Paras D-A); Visitor Imo State University v. Okonkwo& ors (2014) LPELR
22458]

10. Submission of Counsel

It is trite that submissions of counsel no matter how brilliant could not be
substituted for evidence not led at the trial of a case. [New Nigeira Bank plc
vs. Solomon Owie 2010) LPELR-4591 (CA) at 20-21 following the decision
of Supreme Court in Okwe Jiminor Vs Gbakeji (2008) 5 NWLR (P1979)
179 at 223.]
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

CASES REFFERED TO IN THE JUDGEMENT:

IJEBU VS.LSDPC (1992) LPELR- 1464 (SC)
ADESANYA VS. PRESIDENT OF THE FEDERAL REPUBLIC OF
NIGERIA (1981) LPELR-147 SC
ACCORD PARTY VS. GOVERNOR OF KWARA STATE (2011)) ALL
FWLR PT.555) 220 AT 290
LADEJOBI VS.OGUNTAYO (2004) LPELR -1734) SC.
CHIEF OBASANJO VS ALHAJI YUSUF (2004 ) LPELR-2151 (SC) 30
EBHODAGHE VS OKOYE 2004) 18 NWLR (Pt. 905) 242.
OBIANWUNA OGBUNYIYA & ORS VS. OBI OKUDO & ORS (1979)
LPELR 2295 (SC) at 23-24, (Paras D-A)
VISITOR IMO STATE UNIVERSITY VS. OKONKWO& ORS (2014)
LPELR 22458
ACTION CONGRESS& ANOR VS. INEC (2007) 12 NWLR (Pt. 1048) 22
at 259
RT. HON. ROTIMI CHIBUIKE AMAECHI VS. INEC& ORS (2008) 5
NWLR (Pt. 1080) 227 at 314.
HON. JUSTICE RALIAT ELELU -HABEEB (CJ. KWARA STATE) &
ANOR. VS. THE HON. A.G. OF THE FEDERATION & 2 ORS (2012) 2
SC Pt. )145
MARWA VS.NYA KO (2012) 1 SC (Pt. 111) 44.
IDIKA VS.UZONKWU (2008) 9 NWLR (pt. 1091) 34 at 56.
OKWE JIMINOR VS GBAKEJL (2008) 5 NWLR (P1979) 179 at 223.
ECONOMIDES VS TIHOMOPULOUS. CO. LTD (1956) 1 ESC
7OLUBODE VS, OYESINA (1977) 79
OWOSHO & ORS VS. DADA 198) 7 SC 149
CHIEF ISIAH MBA EJEM & ORS VS. CHIEF UGBOR OFIA & ORS
(2000) LPELR-6802 (CA) at 24
NIGEIRA BANK PPLCVS.SOLOMON OWIE 2010) 1LPELR-4591 (CA
at 20-21

COUNSEL:
Kanmi Ajibola appears in person.

Dr. S.A. Bashiru A.G. with M.R. Faremi and Deji Atoyebi for the 1 st and 3rd
Defendants
Rachael Ojimi for the 2nd Defendant.
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

FULL JUDGMENT:
By an originating summons dated 18th August 2016 and brought pursuant to Sections
6 ((6) (b) and 24 of the 1999 Constitution of the Federal Republic of Nigeria (as
amended) hereinafter called "the (Constitution), Order 3 Rule 5 and 8 of the High
Court of Osun State amended (Civil Procedure) Rules 2008 and the inherent
jurisdiction of the court. Plaintiff submitted the following questions for
determination;

1. By its name, State of Osun Land used Charge Law 2016" and its maker,
""State of Osun House of Assembly" whether the State of Osun Land use
Charge Law, 2016" is unlawful and unconstitutional.

2. Contrary to the implied and expressed provisions of the 1999 Constitution

of the Federal Republic of Nigeria (as amended) and by the provisions of
Sections 5, 7, 19, 20 and 21 of the State of Osun Land Use Charge Law,
2016" whether a law made by the unconstitutional legislative body for the
state unknown to the 1999 Constitution of the Federal Republic of Nigeria
3. By the provision of Section 2(2) and (3) of the ""State of Osun Nigeria
can be enforced in Osun state. Land Use Charge Law, 2016", Permanent
Secretary of the Ministry of Finance of Osun State signing the year 2016
Land use charge annual demand notice and payments in respect of same
being directed to be made into the Osun State Government Bank accounts,
whether Sections 4(1), 8(2), 10(1) & (5), 16(c)() & (ii), 17, 18, 21(3) and 22
of the "State of Osun Land use charge Law, 2016" are operable without
appointing the Commissioner of Finance in Osun State.

4. Whether by the provision of Section 10(1) of the "State of Osun Land Use
Charge Law, 2016" a person who is not the Commissioner for Finance in
Osun State can cause to be issued a Land use charge demand notice.
5. Whether all the year 2016 Land use charge annual demand notices issued
on the strength of State of Osun State Land Use Charge Law, 2016" are valid.
6. Notwithstanding the provision of Section 13(1) of the "State of Osun Land
Use Charge Law, 2016" and by the provision of Section 193 of the 1999
constitution the Federal Republic of Nigeria(as amended) whether the
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

Governor of Osun State can perform his duties under the said law without
first appointing commissioners to form the state executive council.
Plaintiff sought the following reliefs:
1.A Declaration that at the "State of Osun Land Use Charge Law 2016"
having being enacted by the legislative body that is not Known to the
constitution and for the state not known to the 1999 Constitution of the
Federal Republic of Nigeria (as amended) it is as such illegal and
unconstitutional.
2. An Order setting aside the "State of Osun Land use Charge Law, 2016"
having being enacted by the legislative body that is not known to the
constitution and for the state not known to the1999 Constitution of the
Federal Republic of Nigeria (as amended).

3. A Declaration that Osun State Government having been delegated with

the power to collect Land use charge revenue the provisions of Section 2(2)
and (3) of the "State of Osun Land Use Charge Law, 2016", Sections 4(1)
8(2), 10(1) & (5) ,16(c 1) &(ii), 17, 18, 21(3) and 22 of the "State of Osun
Land Use Charge Law ,2016 “ are not operable without appointing the
Commissioner of Finance in Osun State.

4.Declaration that by the provision of Section 10(1) of the State of Osun

Land Use Charge Law, 2016" only the Commissioner for Finance in Osun
State is competent to cause to be issued a Land use charge demand notice(s).

5. A Declaration that all the year 2016 Land use charge annual demand notice
issued ,on the strength of “State of Osun State Land Use Charge Law ,2016
, by any other person other than the commissioner for finance are invalid,
null and void.
6. An Order setting aside the year 2016 Land use charge Annual Demand
Notice issued when there was no sitting Commissioner for Finance in Osun
State.

7. A Declaration that notwithstanding the provision of Section 13(1) of the

"State of Osun Land Use Charge Law, 2016" the Governor of Osun State
cannot perform his duties under the said law without first appointing
commissioners as envisaged by the law and section 193 of the 1999
constitution of the Federal Republic of Nigeria.
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8. A Declaration that the Governor of Osun State is bound by the oath of his
office as contained in the 1999 Constitution of the Federal Republic of
Nigeria (as amended).

9. A Declaration that the members of the Osun State House of in Assembly

are bound by the 0ath of their office as contained in the 1999 constitution of
the Federal Republic of Nigeria (as amended).
the 1999 Constitution of the Federal Republic of Nigeria (as amended).

10 .An Order of this Honourable Court restraining theDefendants from

enforcing the "State of Osun Land UseCharge Law, 2016".

In support of the originating summons plaintiff filed an affidavit of 53 paragraphs

with one document marked Exhibit "A" attached thereto.
In compliance with the rules of court, plaintiff filed a written address in support of
the originating summons.

In reaction to the originating summons, Wole Adejumobi, Assistant Chief State

Counsel in the State Ministry of Justice entered a conditional appearance dated
30thNovember 2016 for the defendants on 1st December 2016. The memorandum of
conditional appearance was accompanied by a notice of preliminary objection dated
the same 30thNovember 2016. There was an affidavit of 6 paragraphs in support of
the objection deposed to by one Deji Atoyebi Esq, a State Counsel.

Surprisingly, the 2nd defendant filed a counter affidavit of 6paragraphs on the same
1st of December 2016. It was deposed to by one Akintunde Ayodele a Litigation
Clerk in the department of Legal Service of the 2nd Defendant. There was also a
written address filed in support of the counter-affidavit.
Plaintiff's Counsel in reaction to the 2nd defendant's process filed a reply on point
of law dated 28thMarch 2017.
As a result of the court's disposition that the preliminary objection and the
substantive matter shall be taken together, 1st and 3 rd defendant counsel was
directed to file their counter-affidavit and raised their objection in the course of
hearing of the substantive suit.

1st and 3rd defendant counsel Wole Adejumobi thereafter with the leave of court filed
the counter-affidavit of 24 paragraphs dated 30 th March 2017 deposed to by the same
Deji Atoyebi State Counsel. Counsel equally file a written address in support of the
counter-affidavit.
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The Plaintiff in reaction filed a further affidavit of 14 paragraphs dated 3 rd April,

2017. As well as reply on point of law to the written address of the 1st and 3rd
defendants.

Learned Counsel eventually argued the originating summons on 27th April 2017 and
the case was subsequently adjourned to 29th June 2017 for judgment.
However, in the course of writing its Judgment, the court saw the need for Learned
Counsel to further address it in respect of two salient issues. The court accordingly
directed Counsel to file further written address in respect of effect of schedule on an
enactment and whether a delegate of power can sub delegate that power in view of
Section 2(2) of the State of Osun Land Use Charge Law 2016.

Learned Counsel did accordingly. And on the 11th of September the plaintiff Kanmi
Ajibola Esq who appeared in person adopted his written address dated 21st July
2017 and 6th September 2017 respectively. He urged the court to grant the reliefs
claimed by him.
The Hon. Attorney General and Commissioner for Justice, Dr. Surajudeen Ajibola
Bashiru for the 1st and 3rd defendant adopted the written address dated 30th August
2017 and urged the court to dismiss the suit. R.A. Ojimi, Director of Legal Services
House of Assembly for the 2nd defendant equally adopted the written address dated
14th August 2017 and filed in court same day. He urged the court to dismiss the suit.
Facts leading to the present suit are as follows:

The Plaintiff is a Legal Practitioner, a Nigerian and an indigene of Osun State. He

carries on his Legal Practice in Osun state. On the 15th day of August 2016, a State
of Osun Land Use Charge Annual demand notice dated 25th day of July 2016 and
signed by one Mrs. A .Ogunlumade, Permanent Secretary, Ministry of Finance was
served on him as property owner of No. 42, Onigbogi Street, Off Ibala Ilesa West.
The notice demanded for payment of land charges in respect of the property from
him.
To the plaintiff, the land use charge notice issued pursuant to State of Osun Land
Use Charge Law 2016 is an illegal one since the law was enacted by a non-existing
House of Assembly .In addition, to the plaintiff the only competent officer to issue
such notices if at all is the Commissioner for Finance and a Commissioner having
not been appointed in Osun State as at the time of the issuance of the notice, the
notice was invalid and should be declared as such.
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The 1st and 3rd defendants did not deny that the 2nd defendant used the name State
of Osun House of Assembly in the making of State of Osun Land Use Charge Law
2016. They however contended that, there is nothing unconstitutional about it.

1st and 3rd defendant further contended that the state Land Use Charge Law 2016
is operable in the absence of a commissioner.
They further challenged the jurisdiction of the court to hear the case on the ground
that the law stipulates mode of settlement of grievances for anything pursuant to the
law and that plaintiff lacks standi to institute the suit.
The 2nddefendants in her defence denied paragraphs 8, 10, 14, 15, 16, 17 ,20, 21,
22, 28, 29, 30, 31, 33, 34, 36, 37, 38, 39, 40, 41, 42, 44, 46, 47, 48, 50 and 53 of the
plaintiff's Affidavit in support of the originating summons.

2nd defendant admit paragraphs 2, 11, 12, 18, 23, 24, 25, 26, 27, 32, 35 and 43 of
the plaintiff's Affidavit in support of the originating summons.
2nd Defendant admitted that as at the time exhibit "A" was issued, there was no
Commissioner in office. She also admitted enacting the State of Osun Land Use
Charge Law 2016.
2nd Defendant urged the court to dismiss the suit.

I have given careful consideration to the claims of the plaintiff, the affidavit
evidence and submissions of Learned Counsel and authorities cited by them.

Having gone through the issues raised by the parties in their processes and written
addresses which I found unwieldy.

I am of the firm view that the following are issues for determination in this case
because it covers the questions posed by parties
1. Whether this court has jurisdiction to entertain this suit?

2. Whether the year 2016 Land Use Charge annual demand notice dated 25th
July 2016 with Notice Number 23410450 served on the plaintiff is valid in
the absence of Commissioner for Finance
3. Whether the State of Osun Land Use Charge Law 2016 is lawful having
been enacted by a Legislature not known to the Constitution of the Federal
Republic of Nigeria 1999 (as amended)?
On the first issue, plaintiff argued that he has locus to institute the present suit
being an indigene of Osun State and the law, State of Osun Land Use Charge Law
which he is challenging being a constitutional infraction.That he has a duty to protect
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the provisions of the constitution. He contended that having objected to the law, he
could not subject himself to the Assessment Appeal Tribunal created by section 15
of the State of Osun Land Use Charge Law 2016. He relied on a number of cases
which include IJEBU VS. LSDPC (1992) LPELR- 1464 (SC), ADESANYA VS.
PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) LPELR-
147 SC ACCORD PARTY VS. GOVERNOR OF KWARA STATE (2011))
ALL FWLR PT.555) 220 AT 290 and LADEJOBI VS.OGUNTAYO (2004)
LPELR-1734) SC.
Finally, he submitted that the court has jurisdiction to entertain this case and urged
the court to dismiss the objection.

1st and 3rd defendants counsel referred to section 15(1) of the Land Use Charge
Law 2016 and contended that if plaintiff is aggrieved with the notice served on him,
the appropriate adjudicating body he ought to go to, is the Assessment Appeal
Tribunal and not the High Court. He submitted that the law having provide mode of
settlement of dispute, this court lacks jurisdiction to entertain this suit. He relied on
CHIEF ULTH & ORS VS. ONOYIVEE (1991)1 NWLR (Pt.160) 166 AT 206.
On the issue of locus standi, Learned, Counsel to the 1st against the defendants
being just one of over one million people that constitute citizens of Osun State and
having not shown convincingly to the court how the rearrangement of the name of
"Osun State to "State of Osun'" affected him more than other citizen of the state. He
urged the court to dismiss the suit.
Jurisdiction is the authority which a court has to decide matters which are
litigated before it or to take cognizance of matters presented in a formal way for its
decision. The limits of this authority are imposed by the constitution statute, charter
or commission under which the court is constituted and may be extended or
restricted by similar means. If no restriction or limit is imposed, the jurisdiction is
said to be unlimited. If the language of the constitution is clear and unambiguous the
court must interpret its plain and evident meaning. See CHIEF OBASANJO VS
ALHAJI YUSUF (2004) LPELR-2151 (SC) 30, EBHODAGHE VS OKOYE
2004) 18 NWLR (Pt. 905) 242.
Also in the case of EGHAREVBA VS.ERIBO & ORS (2010)9 NWLR
(PL1199).411. The Supreme Court Per Adekeye JSC, as he wasthen also held as
follows:

"Jurisdiction is a term of comprehensive import embracing ever

kind of judicial action. It is the power of a court to decide a matter
in controversy and presupposes the existence of a duty constituted
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court, with control over the subject matter and the parties.
Jurisdiction also defines the power of the court to inquire into facts
, apply the law, make decisions and declare judgment. It is the legal
right by which judges exercise their authority .Jurisdiction is
equally to court what a door is to a house .

That is why the question of a court's jurisdiction is called a

threshold issue, because it is at the threshold of the temple of
justice. Jurisdiction is a radical and fundamental question of
competence, for if the court has no jurisdiction to hear the case, the
proceedings are and remains a nullity however well conducted and
brilliantly decided they might have been.
A defect in competence is not intrinsic but rather extrinsic to
adjudication"
The two set of defendants as earlier stated based their objection to the competence
of this suit on the failure of plaintiff to comply within section 15 of the State of Osun
Land Use Charge 2016 that he lacks locus standi to institute the suit.
I have carefully considered the affidavit evidence before me and I am o f the firm
opinion that defendants objection to the suit is misconceived for the following
reasons.
In the first instance, Plaintiff is not challenging the rate imposed on his property
which would have necessitated him appealing to the assessment Appeal Tribunal
pursuant to section 15 of the Law. Rather, he is challenging the legality of the law
itself. He at no time accept that the law is binding on him, hence the present suit.

Secondly defendants counsel missed the point when they contended that this court
has no jurisdiction to entertain this suit. Section 6 of the constitution of the Federal
Republic of Nigeria l1999 (as amended) vested judicial power of the Federation in
the Superior courts of record created by the Constitution.
Incidentally, the High Court is one of such court. See Section 6 (5)(e) of the
constitution.

Section 6 (6) (b) of the 1999 constitution equally provides, that the judicial
power vested in the court by the constitution;

"shall extend to all matters between person or between

government or authority and to any person in Nigeria,
and to all action and proceedings relating thereto, for the
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determination of any question as to the civil rights and

obligations of that person"
Section 272(1) of the 1999 CFRN as amended further provides:

“Subject to the provisions of section 251 and other provision

of this constitution, the High Court of a states shall have
jurisdiction to hear and determine any civil proceedings in
which the existence or extent of a legal right, power, duty,
liability, privilege, interest, obligation or claim is in issue or
to hear and determine any criminal proceedings involving
or relating to any penalty, forfeiture, punishment or other
liability in respect of an offence committed by any person”
The affidavit evidence having disclosed that plaintiff is contesting the legality
of the State of Osun Land Use Charge Law 2016, what other court has jurisdiction
to hear such a case if not the State High Court in view of the provision of the 1999
CFRN (as amended) referred to above.
The objection to the jurisdiction of the court on the ground of locus standi in my
view is too far fetched. The plaintiff deposed that Exhibit "A". State of Osun Land
Use Charge Annual Demand Notice was served on him as the property owner of No.
42, Onigbogi Street, Off Ibala, Ilesa West.
Paragraphs 47, 48, 49, 50 and 51 of the affidavit in support of the originating
summons is important in this regard. What more does the court need to know that
plaintiff has standing to institute this suit.

Consequently, I hold that the objection to the jurisdiction of this court by the
defendants is misconceived baseless and without merit. I therefore dismissed the
objection.
The second issue is whether the year 2016 Land Use Charge Annual Demand
Notice dated 25h July 2016 with Notice Number 23410450 served on the plaintiff
is valid in the absence of commissioner of finance.

On this issue, plaintiff submitted that the demand notice issued and served on him
in the absence of a commissioner in office is a nullity. That the permanent secretary
in the ministry of finance could not legally signed such notices in the absence of the
commissioner. He relied on the provisions of Section 10(1) of the State of Osun
Land Use Charge Law and Section 23 of the law.
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On whether a donee of delegated power could sub-delegate such power or duties,

plaintiff submitted that a delegate could not sub-delegate such power. Moreover,
when the donee of the power was not in office.

He contended that the non-appointment of commissioners in the state was an

aberration and a clear breach of Section 192 of the 1999 CFRN (as amended).
The State Learned Attorney General Dr. Surajudeen Ajibola Bashiru argued to the
contrary. He submitted that the Permanent Secretary in the Ministry of Finance
could act in the absence of a commissioner. He relied on Section 10 (1) of the State
of Osun Land Use Charge Law and submitted that the operative word in the
particular section is the use of the word cause", He argued that in such a case where
there was no commissioner in office the principle of necessity could be invoked and
that the doctrine of delegatus non potest delegare comprehend such a situation. He
argued further, that the use of the word "shall" in section 10(1) of the law implies a
future tense and not a command. He contended that the phrase "shall cause to be
issued connotes give direction for the issuance of" That such a directive is implied
and is always to the Permanent Secretary as the administrative head of the ministry
which makes the directive automatic whether there is a commissioner in office or
not.
Learned Attorney General finally urged the Court to discountenance plaintiff's
submission in respect of this issue.
Learned Counsel to the 2nddefendant, R. Ojimi, Director of Legal Services equally
submitted in line with that of the Honourable Attorney General for the 2nddefendant.

The State of Osun Land Use Charge Law 2016 was enacted by the House of
Assembly and assented to on 19 March 2016. The law provides for the consolidation
of all property and land based rates and charges payable under the land rate law, the
Neighborhood improvement Charge Law and tenement rates Law in the state into a
new Land based charge and called property land use charge. The essence of the
consolidation in my view is to remove multiplicity of laws touching on rates and
charges in the state.
Section 2(2) of the law provides that each local Government areas in the state
shall be the collecting authority and it shall be the only body empowered to levy and
collect land use charge for its area of jurisdiction. The essence of this provision in
the law is that it is ONLY the Local Government Area that is the sole authority that
can collect land use charges in its jurisdiction.
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However, the law in section 2(3) allows any Local government Area desirous of
doing so to delegate its function with respect to the collection of rates and assessment
of privately owned houses or tenement rate in writing to the state government.

Section 4(1) of the Law provides that where the Local Government delegate such
powers to the state, the commissioner shall undertakes or cause to be undertaken an
assessment of chargeable properties in such areas of the state as he may designate.
Section 10(1) of the Law provides that the commissioner shall cause to be issued,
in each financial year, a land use charge demand notice with respect to every
chargeable property that had been assessed in accordance with the law.

The contention of plaintiff is that as at the time Exhibit "A" was issued and
served on him, there was no commissioner in office. He contended that the Notice
thus served on him is a nullity. He submitted further that such duty imposed on the
commissioner by law could not be exercised by another officer like a permanent
secretary, more so when there was no commissioner in office.
The learned Attorney General agreed that as at the time the notice was issued and
served on the plaintiff, there was no commissioner in office. He how ever argued that
the provision of section 10(1)of the Land Use Charge Law 2016, is merely directory
and not a command. He submitted that the issuance of the Land Charge Notice could
come under the principle of necessity since government machinery must continue to
move smoothly even in the absence of political heads.

R. Ojimi for the 2nddefendant on his part submitted that the Governor has the
constitutional power to appoint a permanent secretary to act in any ministry
including that of ministry of finance and that such appointee could carry out any
duty assigned him by the government . He relied on the provision of Section 208 (1)
(2) ( c) of the 1999 CFRN as amended.
He submitted further that Exhibit "A" that the plaintiff purportedly claim was served
on him does not bear his name. That as a result of this, Plaintiff failed to place
sufficient material before the court and at this being so, the court could not exercise
its discretion in plaintiffs case.
I think it is desirable to address the submission of 2nd defendant .Learned
Counsel R. Ojimi in relation to the power of the Governor of a state to
appoint Permanent Secretary to act in office. He relied on Section 208 (1)
(2) (c) of the 1999 CFRN. Now Section 208(1) provides

"Power to appoint persons to hold or act in the offices to

which this section applies and to remove persons so
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appointed from any such office shall vest in the Governor

of the state’’
Section 208 (2) provides:
"The offices to which this section applies are
a.
b.

c. Permanent secretary or other chief executive in any ministry department

of the Government of the state howsoever designate
There is nothing ambiguous or complicated in the interpretation of the above
provision . The Section merely provides for an approve of government to act and
function in the office to which he was appointed to as a permanent secretary. He
must act in the office of Permanent Secretary . The Governor cannot confer power
or duties not so concerned the office of Permanent Secretary by an enablin g statute
to power or perform such duties .

With respect to counsel, the interpretation he gave to the section is misleading and
inappropriate. It is therefore discountenanced.

In the same vein the submission of 2nddefendant counsel R.Ojimi that plaintiff
did not place sufficient materials before the court to enable the court exercise its
discretion is not tenable. What was served the plaintiff was Exhibit "A" and it was
addressed to the property owner, of No.42, Onigbogi Street, off Ibala, Ilesa Wes t.
Plaintiff claims to be the property owner, hence this suit. The submission of 2 nd
defendant's counsel would have been tenable if he was able to produce another
person as the owner of the property so described above. In the absence of that his
objection has no basis.

To the main issue, the rule guiding the exercise of delegated power generally is
that the donee of such power cannot sub delegate it especially where it has elements
of determining the right of citizens or where the exercise of such powers is quasi
judicial in nature. Where the delegated power is ministerial such power could be
sub-delegated.

In the context of the present case, by Section 2(3) of the State of Osun Land Use
Charge Law 2016, the power of the Local Government to collect and levy rates may
be delegated to the state. From all intent and purposes, this is what happened in the
present case.
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Section 4(1) of the law goes further to State specifically that where there is such
delegation the commissioner shall undertake or cause to be undertaken an
assessment of chargeablepropertiesin such areas of the state as he may designate.

Section 4(2) of the law equally provides that the commissioner may appoint
qualified personnel to identify such properties and assess same for the purpose of
determining rates chargeable.
Section 10(1) further provides that it is the commissioner that shall cause to be
issued, in each financial year, a land use charge demand notice With respect to every
chargeable property that had been assessed in accordance with the law.

Section 23 of the law, its interpretation section, interprets the "commissioner" to

mean commissioner of finance.

The Learned Attorney General has impressed it on this court to interpret section
10(1) of the law as being directory and not mandatory
It is trite law that one of cardinal rules of construction of written instruments is
that the words of a written instrument must in general be taken in their ordinary
sense notwithstanding the fact that any such Construction may not appear to carry
out the purpose which it might otherwise be supposed was intended by the maker or
makers of the instrument. The rule is that in construing all written instruments the
grammatical and ordinary sense of the words should be adhered to, unless that would
lead to some absurdity or some repugnancy or inconsistency with the rest of the
instrument the instrument has to be construed according to its literal import unless
again there is something else in the context which shows that such a course would
tend to derogate from the exact meaning of the words. See OBIANWUNA
OGBUNYIYA & ORS VS. OBI OKUDO & ORS (1979) LPELR 2295 (SC) at
23-24, (Paras D-A) Per Idigbe JSC (as he was then), See also VISITOR IMO
STATEUNIVERSITY VS. OKONKWO& ORS (2014) LPELR 22458 where the
Court of Appeal held that it has long been settled that provisions of a constitution or
statute must be construed literally giving the words in such constitution or statute
their ordinary grammatical meanings. In ascertaining the true meaning of the
provisions of a statute or the constitution, the constitution and the statute being
interpreted must be read as a whole and construed so.
The case followed the decisions of the Supreme Court in ACTION CONGRESS
& ANOR VS. INEC (2007) 12 NWLR (Pt. 1048) 22 at 259 and RT. HON.
ROTIMI CHIBUIKE AMAECHI VS.INEC& ORS (2008) 5 NWLR (Pt. 1080)
227 at 314.
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I have considered the submission of the Learned Attorney General with regard to his
submission that the issuance of Exhibit "A" by the Permanent Secretary Ministry of
Finance arose out of necessity to perform a public duty.

The doctrine of necessity is the basis on which extra-legal action by state actors,
which are designed to restore order, is found to be constitutional.
The question now is, was the issuance of Exhibit "A" by the Permanent Secretary
Ministry of Finance justified by this principle.

To my mind, the answer is in the negative. Section 192(1) of the 1999 CFRN makes
provision for appointment of commissioners by the Governor of the state. Section
193 of the constitution provides for the executive responsibilities of the
commissioner.

In the instant case, it was the Governor of the State that did not appoint
commissioners to perform their duties as at the time, Exhibit "A" was issued and
served on the plaintiff.
The reluctance of the Governor in carrying out the provision of Section 192 of the
constitution to my mind is a matter of choice so the issue of necessity could not have
arisen in the present case.

Secondly, the joint reading of Sections 2(3), 4(1), (2), and 10(1) of the State of Osun
Land Use Charge Law clearly does not contemplate issuance of Land Use Charge
demand notice in the absence of a Commissioner . The use of the words 'shall’ in
almost all the sections dealing with the duties of the Commissioner impose by the
law shows that it is only the commissioner that could give such directive.
To crown it all, Section 23 of the law defines the "Commissioner" to "means
Commissioner for Finance.’’

This is the icing on the cake. Not even any other commissioner could perform the
function except the commissioner for finance. For it is trite law that the use of the
word "means" indicate that stipulated meaning is expressed in a complete form and
no part of the intended meaning is omitted. In simple words the use of the word
"means" is Complete and does not permit of any other interpretation or meaning.
In view of my findings, I resolved issue 2 against the defendants.

The third and final issue is whether the State of Osun Land Use Charge Law 2016
is lawful having been enacted by a legislature not known to the constitution of the
Federal Republic of Nigeria 1999 (as amended).
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On issue 3, Plaintiff contended that State of Osun House of Assembly is unknown

to the 1999 Constitution of the Federal Republic of Nigeria. That the Legislative
House known to the Constitution is Osun State House of Assembly. He contended
further that any law made by State of Osun House of Assembly and in particular
State of Osun Land Use Charge Law 2016 is unlawful and void.

Plaintiff submitted that what Section 3(1) of the 1999 CFRN (as amended) creates
is Osun State and not State of Osun. And that impliedly Section 90 of the
Constitution equally creates House of Assembly of Osun State and not State of Osun
House of Assembly. He contended that members of the House of Assembly took
their oath of office in line with schedule 7 of the 1999 CFRN.

He submitted that the schedule forms an integral part of the law or Constitution
and that schedule 7 to the 1999 CFRN (as amended) clearly shows that members of
the House of Assembly when taken their oath of office swore as members of Osun
State House of Assembly and not as members of State of Osun House of Assembly.

He submitted that the plain language of the schedule can be used to establish the
intendment of the legislature contained in an Act. Plaintiff relied on the following
authorities Black's Law Dictionary 8 Edition at page 1372, NNPC & ANOR VS.
FAMFA OIL LTD 2012) LPELR 7812 (SC) at pag e 48 (paras B) Per Rhodes Vivour
Jsc.

On duty of court when interpreting a provision of the constitution. He relied on

HON. JUSTICE RALIAT ELELU -HABEEB (CJ. KWARA STATE) &
ANOR. VS. THE HON. A.G. OF THE FEDERATION & 2 ORS (2012) 2 SC
Pt. )145, MARWA VS.NYA KO (2012) 1 SC (Pt. 111) 44.
Finally, he urged the court to resolve issue 3 against the defendants.

The Hon. Attorney-General and Commissioner for Justice for the 1st and 3rd
defendants Dr. Surajudeen Ajibola Bashiru submitted that the complainant of the
plaintiff with regard to how a state is to be described is outside the scope of the
schedule 7 of the constitution. He contended that there is nowhere in the constitution
that it is expressly provided how a state is to be called .That there is also no provision
that stipulates the enacting formula which the House of Assembly shall employ to
enact legislation, He contended that it is certainly stressing the interpretation beyond
logic for the 7" schedule to be brought in, in deciding what a state should describe
itself with or the enacting formula the House of Assembly must adopt in enacting
legislations .

He submitted that what matters is that so long as the law is made within the
confine of the limit of the particular law making body, the law made does not in any
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way contravenes or conflicts with the Federal enactment. What remains is the
interpretation of the wordings of such law which is the exclusive preserve of the
court Learned Attorney-General submitted further that Nigeria being a Federation
with three tiers of government, the Federating states have certain measure of
independence to reflect their own nature and reality of their existence as an
independent and separate entity. He contended that the people of the geographical
entity known as "Osun" having decided to bear "State of Osun" any other
confederating State have liberty to do so.
He submitted that the House of Assembly by describing itself "State of Osun
House of Assembly" did not contravene any of the provisions of the 1999 CFRN (as
amended). Therefore, the description has not in any way rendered the constitutional
powers of the House of Assembly to make laws unconstitutional. Learned Attorney-
General relied on Section 100, 102 and 103 of the Constitution with respect to mode
of exercising legislative power of a state.

With respect to Section 3(1) of the Constitution, Learned A.G. contended that the
section merely provides for existence of thirty-six states in Nigeria and named the
states with their Capitals.
He further relied on the provision of Section 176(1) of the 1999 CFRN and
submitted that the phrase "there shall be for each state of the Federation a Governor
connotes that whichever way or by whatever names each state calls or describes
itself, what really matters is that the Word "state appears in the name. He contended
that whichever comes first or last in the description of the state, it does not occasion
any situation where people are misled as to the entity being referred to. He submitted
that the description "Osun State or "State of Osun""Governor of the State of Osun"
or "Governor of Osun state" means one and the same thing.

He submitted further that the assertion of the plaintiff that the 1999 CFRN (as
amended) recognizes Osun State and not State of Osun and therefore not known to
law as erroneous as the assertion was more technical than legal. He urged the court
to discountenance it.

For the definition of State, Leaned Counsel relied on Section 318 of the 1999
CFRN (as amended). He submitted that where word or an expression has been
defined by a statute, their ordinary meaning will give way to their legal meaning and
the legal meaning will supersede any other meaning, whether ordinary or special
that may be given to it. He relied on IDIKA VS. UZONKWU (2008) 9 NWLR (pt.
1091) 34 at 56.
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Finally, he urged the court to discountenance plaintiff's submission and uphold the
legality of state of Osun Land Use Charge Law 2016.

I must place it on record that the submission of Rachael Ojimi, Director of Legal
Services, House of Assembly for the 2nd defendant tallies with that of the Learned
Attorney-General for the 1st and 3rd defendants. Consequently, there is no need to
reproduce it.
Issue 3, is novel and its resolution cannot be approached whimsically because of
its Constitutional importance to the state and the Federation of Nigeria. To resolve
the issue, the need naturally arises to look at the constitutional history of State
creations in Nigeria. State creation in Nigeria started in 1962 when the Mid-Western
Region was created out of the Western Region.

This was followed by the creation of 12 States in Nigeria in 1967 to pre-empt the
secession bid of the then Eastern State from Nigeria. In 1976, Nineteen States were
carved out of the then existing twelve States. The agitation for more States did not
abate, between 1986-1987 two States were created. In 1991, additional States were
created and finally, between 1995 and 1997 the Federal Military Government
created more States that brought the number of States in Nigeria to Thirty Six States.
Now to trace the constitutional history of Osun State. The area comprising Osun
State was formerly part of the old Western Region, out of which Mid-Western
Region was created in 1962, then part of Lagos, Oyo, Ondo and Ogun were created
in 1976. In 1991, the present Osun State was carved out of the old Oyo State, on 27
August 1991.

The enabling statute that created Osun State was Decree No. 41, States (Creation
and Transitional Provisions) (No.2) Decree 1991 Section 1(1) of the aforementioned
Decree Provides "As from the commencement of this Decree and notwithstanding
the provisions of the constitution of the Federal Republic of Nigeria 1979 or any
other enactment, there shall be created for the Federal Republic of Nigeria 9 new
states, namely:- Abia, Anambra, Delta, Jigawa, Kebbi, Kogi, Osun, Taraba and
Yobe"
Section 2 of the Decree provided:-

"Notwithstanding anything to the contrary in the

constitution of the Federal Republic of Nigeria 1979 or any
other enactment, there shall be 30 states for the Federal
Republic of Nigeria and each State shall have the name
given to it in the first column and the capital in the second
column of the schedule to this Decree and shall consist of
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SELECTED JUDGEMENTS OF THE COURTS IN OSUN STATE OF NIGERIA______________________________________________________________

the Local Government Areas specified in the third column

and the capital or headquarters of the Local Government
Area in the fourth column to the said schedule"
The Decree that created the state in 1991 was followed with the enactment of the
1999 Constitution of the Federal Republic of Nigeria (as amended) Section 3 (1) of
the extant law provides:
"There shall be thirty-six states in Nigeria, that is to say,
Abia, Adamawa, Akwa-lbom, Anambra, Bauchi, Bayelsa,
Benue, Borno, Cross-River, Delta, Ebonyi, Edo, Ekiti,
Enigu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina,
Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo,
Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and
Zamfara"

"Each state of Nigeria named in the first column of part 1

of the First Schedule to this Constitution shall consist of the
area shown opposite thereto in the second column of that
schedule"
Section 3(3) provides:

"The headquarters of the Government of each State shall

be known as the capital city of that state as shown in the
third column of the said part 1 of the First Schedule
opposite the state named in the first column thereof"
A careful perusal of the Provision of Section 3(1), (2)) and (3) of the 1999 CFRN
(as amended) shows that it is impari materia with the provisions of Decree No. 41,
States (Creation and Transitional Provisions (No.2) Decree 1991 with the exceptions
of reference to the 1979 Constitution.
lt is of great importance to note that at creation, the name and ordering of the name
of the state created was "Osun State and it was called as such even under two
successive civilian administration from 1999 to 2003, and from 2003 to 2010 in the
state. To put it clearer, from 27 August 1991 when the state was created until
sometimes in the year 2011 shortly after the present 1 defendant assumed power in
the State, the ordering of the name of the State was Osun State". It was sometimes
in the year 2011, that the 1 defendant as the Executive Governor of the State,
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changed the nomenclature of the name to "State of Osun. There was no challenge to
the change in the name until the present case.

Learned Counsel to the set of two defendants have strongly submitted that
Nigeria, being a Federation, the States that made up the component units has
freedom to take certain decisions suitable for them in their own interest. They further
submitted that there is no difference between "Osun State" and "State of Osun".
With respect to defendants counsel, there is a world of difference between the two
names. The name "Osun State" does not allow of any other interpretation apart from
a unit that forms component part of Nigeria while the name "State of Osun'" is
ambiguous and capable of different interpretation. It could be interpreted as referring
to a unit forming component parts of the Nigeria Federation or as the situation of
things in the State. This type of situation must be avoided.

In addition, as earlier stated from 27" August 1991 till sometimes in the year 2011,
the State was known, addressed, called and transacted all government business as
"Osun State". Moreover, till date in this country, the remaining thirty-five States in
Nigeria are still being addressed as when they were created. Osun State being a
creation of the constitution, if the name is to be rearranged, due process must be
followed. It cannot be done merely as a matter of policy statement. It goes further
and deeper than that in a democratic setting.

In comparison, the States comprising United States of America today, are

normally described by the word "State" coming before the name of the State. For
example "State of Georgia""State of New Jersey etc. As free as America's
democracy is, none of those States has ever attempted to reorder the arrangement of
the names of their State.Even in Federalism there is usually a measure of uniformity.

What the law and the constitution created is "Osun State" and not State of Osun". I
have to go to this length for my reasoning to be clear to the parties.

Now coming to the real issue at hand, Section 4(b) of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) vests the legislative powers of a State in
The House of Assembly of the State.
Section 4(7) provides:-

"The House of Assembly of a State shall have power to make

laws for the peace, order and good government of the State
any part thereof with respect to the following matters... .
Section 90 of the 1999 CFRN (as amended) provides:
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"There shall be a House of Assembly for each of the States

of the Federation"
Section 94(1) of the Constitution makes provision after election for elected members
to declare their assets and subscribe to oath of allegiance and oath of membership as
prescribed in the 7 schedule to the constitution
Plaintiff had argued that the oath of allegiance and oath of membership subscribed
to by members of the 2 Respondent is as contained in the schedule to the constitution
submitted that content of 7th schedule indicates that members of 2nd respondent took
their oath as members of Osun State House of Assembly and not as members of
State of Osun House of Assembly in compliance with the provision of the
constitution. He submitted that having doe so, members of 2nd Respondent could not
make Laws as members of State of Osun House of Assembly. He placed great
reliance on the content of 7th schedule to the constitution. Learned counsel to the 1st
and 3rd defendant, the Attorney -General and Commissioner for Justice Dr,
Surajudeen Ajibola Bashiru, submitted that the 7th schedule to the Constitution is
made in respect of specific provision of the constitution. That its application is not
at large but limited to those sections.
He also submitted that the oath taken by members of the 2nd defendant and the 1
defendant having not been exhibited the court could not rely on plaintiff's deposition
only.
R. Ojimi Esq for the 2 defendant Submitted that the7th schedule to the
constitution is a mere draft, that could be altered to meet the condition of each user.
He submitted that this being so, the reliance of plaintiff on it goes to no issue. He
too aligned with the submission of the Learned Attorney-General that the specific
oaths of allegiance taken by the defendants not being before the court, the court
should not rely on mere deposition.
It is trite law that the schedule is part of the act and used in construing provisions
in the body of the Act. The provisions in the schedule will therefore be construed in
the light of what is enacted in the Act and cannot override the body of the statute.
The schedule is however subject to the main Act, it cannot override the plain words
of a Statute: this is apt because in the event of any contradiction between the
schedule and the enacting clause, the latter prevails. See ADEBUSUYI VS INEC
& ORS (2009) LPELR-3599 (CA) at 28 (Paras C-F).
With respect to Learned Counsel to the defendants, the 7th schedule to the 1999
Constitution of the Federal Republic of Nigeria is not a draft or mere form of the
oaths to be taken by the 1stdefendant and members of the 2nd defendant. It is the real
thing. See Section 94(1) of the Constitution that refer to the 7th schedule to the
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Constitution as the prescribed oath to be taken by the 1st and 2nd and defendants
respectively. To my mind, it does not give room for any alteration. It forms part of
the constitution and could only be varied by an amendment by the National
Assembly.

With regard to the objection that plaintiff having not exhibited the particular copies
of the oaths subscribed to by the 1st defendant and members of the 2nd defendant, the
court could not rely on his deposition to uphold his contention.

It is of great importance that this suit is fought on affidavit evidence. Plaintiff in

paragraphs 18 and 25 of the affidavit in support of his originating summons dated
19th August 2016 reproduced the oaths of Office as contained in 7th schedule as
being what the 1st and members or the 2nd defendant subscribed to.

Funnily enough, the 1st and 3rd defendants in paragraph 6 of their Counter-affidavit
dated 30th March 2017 deposed to by one Deji Atoyebi admitted that paragraphs 18
and 25 of plaintiffs supporting affidavit is true.
In the same vein, in paragraph 4(b) of the 2nd defendant counter-affidavit dated 1 st
December 2016, deposed to by one Akintunde Oyedele, 2nd defendant equally
admitted that paragraphs 18 and 25 of plaintiff s deposition is true.

Is it not the law that what is admitted need no further proof? Indeed, our courts have
held in plethora of cases that what is admitted need no further proof. See CHIEF
ISIAH MBA EJEM & ORS VS. CHIEF UGBOR OFIA & ORS (2000) LPELR-
6802 (CA) at 24 relying on the decision of Supreme Court in OWOSHO & ORS
VS. DADA 198) 7 SC 149, ECONOMIDES VS TIHOMOPULOUS. CO. LTD
(1956) 1 ESC 7, OLUBODE VS, OYESINA (1977) 79
The above being so, can the defendant cure this in the submission of their
counsel? When it is trite that submissions of counsel no matter how brilliant could
not be substituted for evidence not led at the trial of a case. See NEW NIGEIRA
BANK PPLCVS.SOLOMON OWIE 2010) 1LPELR-4591 (CA at 20-21
following the decision of Supreme Court inOKWE JIMINOR VS GBAKEJL
(2008) 5 NWLR (P1979) 179 at 223.
In view of the above, I overrule the submissions of Learned Counsel in this
regard as inconsequential.

Having found that 1st and 2nd defendant deposed to the oath of allegiance and oath
of membership of their respective offices as prescribed by 7 th schedule to the 1999
constitution of the Federal Republic of Nigeria (as amended). Could the
2nddefendant made a dramatic turn around for its members to be addressed as
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members of State of Osun House of Assembly and enact any law stating with such
appellation?

In my candid view, the answer is in the NEGATIVE, Having taken office as

members of Osun State House of Assembly, any LAW enacted by the 2 nd defendant
must be addressed as having been made by Osun State House of Assembly and not
by State of Osun House not by State of Osun House of Assembly. The combine
reading of Sections 4(7), 90, and 940(1) of the 1999 Constitution is a pointer in this
direction.
Moreover, in view of my findings that what the 1999 C FRN (as that what the 1999
CFRN (as amended) creates is Osun State, and not State of Osun, there could not be
a House of Assembly properly so called as State of Osun House of Assembly. Such
House of Assembly does not exist.
Therefore, I resolved issue 3 against the defendants.
Consequently, plaintiff's reliefs 1, 2, 3, 4, 7, 8, 9 succeeds.

Relief 5 succeeds to the extent that the year 2016 Land Use Charge Annual Demand
Notice issued by other person other than the Commissioner for Finance on the
plaintiff on the strength of State of Osun Land Use Charge Law is invalid, null and
void.
Relief 6 succeeds to the extent that the year 2016 Land Use Charge Demand Notice
exhibit "A" issued on the plaintiff in the absence of a sitting Commissioner is set
aside.

Finally, the defendants their agent and any other person(s) acting for them are hereby
restrained from enforcing the State of Osun Land Use Charge Law 2016
I must place on record the industry which the Honourable Attorney-General of the
State put into this case. Though, he came in but for a short period. His depth of
research the determination of this case. search and submission was helpful.
HON. JUSTICE 0.D.
AFOLABI
JUDGE
14/12/20I7