Alhaji Adebola Olakunle Elias V. Chief Timothy Omo-bare (1982)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C.

In SUIT No. IK/312/71 in the High Court of Lagos State the plaintiff, herein appellant, claimed against the defendant herein respondent, as follows:

“(1) A declaration that the plaintiff is the owner in fee simple or alternatively under native law and custom of the piece or parcel of land situated lying and being at Isheri road, Ikeja district a plan of which is attached to the plaintiff’s deed of conveyance dated 5th January, 1962 and registered as No. 23 at p. 23 in volume 528 of the Lands Registry at Ibadan.

(2) An injunction restraining the defendant, his servants or agents from committing or further committing any act of trespass on the said land.

(3) Possession of the said land.”

In paragraphs 1 and 2 of the statement of claim filed and delivered, the appellant pleaded in the following terms, which must be here be set out in full in view of the controversy in this appeal:

“(1) The land in dispute is a large area of land situate, lying and being at Isheri road, Ikeja district, Lagos State a plan of which is attached to the plaintiff’s deed of conveyance dated 5th January, 1962 and registered as No. 23 at p.23 in volume 528 of the Lands Registry in the office at Ibadan.

(2) In or about 1970, defendant broke and entered into a portion of the said land and commenced building operations therein, a plan of the said land showing the area upon which the defendant is trespassing will be tendered at the hearing of this action.”

Thereafter the appellant pleaded that the land the subject of the suit originally belonged to and was vested in one Oshoja absolutely under Yoruba native law and custom; that Oshoja remained in possession of the same until his death about 80 years ago when he left him surviving four children by the names of:

(1) Aina Ose;

(2) Ogisanyi;

(3) Ilo; and

(4) Meku Bale; all of whom in consequence inherited the said property absolutely under Yoruba native law and custom; that when subsequently

(1) Aina Ose;