A. Ogunbiyi V. S. B. Adewunmi (1988)

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A. OPUTA, J.S.C. 

This is a comparatively very short appeal as the issues in controversy have been considerably narrowed down by the substantial concession made by Mr. M. O. Oseni, learned Counsel for the Appellant. Having conceded the issue of title, there was only one subsidiary and accessory issue left for argument and calling for a decision namely:-

whether from the facts and circumstances of this case, it can be maintained that the Plaintiff/Appellant established such possession as to enable him succeed on the issues of trespass and injunction To help resolve this issue it may be convenient to set out the claims before the court of first instance and the concurrent findings of the two lower Courts.

The Plaintiff, now Appellant in the court sued the Defendant/Respondent claiming as follows:-

(i) Declaration of title in fee simple or according to native law and custom to that piece or parcel of land situate at Oniponrin near Ibadan Grammar School, Ibadan, and the survey plan of which will be later filed in this action; N2,000 being general and special damages for trespass committed

by the defendant to the said land which at all material times was in the plaintiff’s possession:

(iii) Perpetual injunction restraining the defendant, his servants and agents from committing further acts of trespass;

Pleadings were ordered by the trial High Court, filed and exchanged, From the averments in the pleadings it was common ground that the radical title to the land in dispute resided in the Ilori Family. Both parties pleaded and relied on purchase – the plaintiff from the Ashiru bra neb of the Ilori family; the defendant from the entire three branches of the Ilaori family. The plaintiff’s case was based on a partition of Ilori family land and a sale by the Ashiru branch of their own share after such partition. The defendant’s case was that there was no partition. Rather there were several allotments of land to members of the family for use but not transferring title thereby. The defendant bought the land in dispute being part of the unpartitioned Ilori family land in 1969 and successfully defended an action brought against him by Jimoh A. Odutola in 1972 in respect of the land in dispute,

Three issues arose out of the pleadings namely:-

(i) Was there a partition of Ilori family land among its constituent units

(ii) If the answer is NO could the Vendors of the plaintiff transfer to him valid title

(iii) If there was a partition and the sales to both the plaintiff and the defendant were valid which of those sales was prior in time

After due trial on the available evidence. Ogundere J, of the Oyo State High Court, (as he then was) made the following findings of fact:-

“I find that there is no conclusive evidence that Ilori family land which descended through Ayani, Disamu and Sanni was ever partitioned during Ashiru’s life time or at all.