Alhaji Aliyu Balogun V. Alhaji Shittu Labiran (1988)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The proceedings leading to this appeal were commenced in the High Court of Justice of Oyo State, Ibadan Judicial Division, Ibadan, on the 14th day of April, 1980. In that court, the respondent herein instituted an action against the appellant claiming as follows:-

“(a) N2000.00 damages for the acts of trespass committed by the Defendant and still being committed on the Plaintiff’s land situate, lying and being at Labiran Compound, Labiran Ibadan which is more particularly shown on a plan to be filed later in Court.

(b) Injunction restraining the Defendant, his servants/agents and/or anyone claiming through or under him from committing any further act of trespass on the said land.”

Pleadings were ordered, filed and delivered and the matter eventually came up before Ogundere, J. (as he then was). The plaintiff’s claim was for damages for trespass which he alleged that the defendant had committed by demolishing his house. That claim was fully pleaded in paragraphs 3, 4, 7,8,9,10,11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the statement of claim as follows:-

“3. The land trespassed upon by the plaintiff is situate at Labiran Compound, Ibadan and is more particularly shown on the attached plan No. AK.2228/0Y of 24th July, 1980 made by Akingbaguo, Licensed Surveyor.

4. The whole area of land verged red on the plaintiff’s plan originally belonged to his ancestor Labiran who settled on it during the reign of Oba Oluyole the then Bale of Ibadan.
5. The Defendant and his parents were strangers in Labiran’s Compound and have no interest in the family property.
6. During the reign of Oyewole, Foko, Mogaji Abibu allocated part of Labiran Family land to Jinadu Ape, the father of the Defendant to build a house consisting off four rooms on the recommendation of one Lakutuye, another stranger in Labiran Compound.
7. The father of the Defendant built on the land allocated to him and stayed in the said house until his death.
8. During his life time, Jinadu Ape, the father of the Defendant, confined himself to the house built on the land allocated to him by Labiran family.
9. Sometime in 1965, the Defendant without the consent or permission of either the Mogaji or Labiran family or any accredited representative of the said Family entered into and made an extension to his said father’s house on the adjoining piece of land verged yellow on the attached plan No. AK.2228/OY.
10. The Mogaji of Labiran Family Badiru Ladapo, and the other members of Labiran family warned against the said Defendant’s extension of his father’s house but instead of taking heed to the warning, the Defendant instituted an action in suit No. A2/CV/2/65 against Zacheus Jide, Anietu Alake and Salamotu all members of Labiran Family.
11. The area in dispute is part of Labiran family land which was granted to one Zacheus Jide by Badiru Ladapo, the Mogaji of Labiran family.
12. The said Zacheus Jide sometime in 1952 built a house on the portion of the land granted to him and he was in an undisturbed possession of the said house until 1965 when the Defendant sued Zacheus Jide and some members of Labiran Family in respect of land on which Zachcus Jide’s house was built.
13. After the Defendant’s case was struck out, the said Zacheus Jide sometime in 1970 sold his house to the plaintiff, another member of Labiran Family because members of Labiran Family decided that Zacheus Jide, who was then in need of money should not sell the house to a stranger.
14. The house sold to the plaintiff by Zacheus Jide is a storey building consisting of six bed rooms.
15. Not long after the plaintiff purchased Zacheus Jide’s house, he, the plaintiff travelled to Mecca with his mother. But before the plaintiff travelled to Mecca, he removed part of the building viz: the part facing the Defendant’s building.
16. On arrival from Mecca, however, the plaintiff discovered that the whole building which he bought from Zacheus Jide had been pulled down.
17. On enquiries, the plaintiff learnt that it was the Defendant together with his servants and agents who pulled down the building.
18. Karimu Lapade was present when the Defendant and his agents were pulling down the plaintiffs building and the said Karimu Lapade warned the Defendant about the consequences of such an act.”

In his reply the defendant emphatically denied the trespass alleged, and having, in paragraph 2 of the statement of defence admitted paragraphs 1, 2, 4, 5, 6, 7 and 11 of the plaintiff’s statement of claim, averred in paragraphs 3, 4, 5, 6, 7, 9, 12, 13, 14, 15, 16, 17 and 18 of the statement of defence as follows:-

“3. The defendant denies paragraphs 3, 8, 10 and 12 to 20 of the plaintiff’s Statement of Claim and puts the plaintiff to strict proof thereof.

4. The defendant admits paragraph 8 only to the extent that Mogaji Abibu granted land to Jinadu, but denies that his father was given a land to build a house consisting of four rooms and adds that:-

(a) He is not related to the plaintiff’s family but will contend, that he has interest in the portion of plaintiff’s family land granted to his father and shown verged Blue on Plan No.KESH/Y11857 drawn by Alhaji Y.O. Keshinro Licensed Surveyor and attached herewith.

(b) The said portion granted by Abibu to Jinadu, Defendant’s father absolutely under Native Law and Custom about seventy five years ago extends to Omilabu’s Compound on the Western side; to the area where Madam Selia Papoola and Adeleke Adisa’s houses are built, on the Southern part; to the plaintiff’s compound where Badiru Mogaji’s house (now in ruins) is shown on the Western side and extends to the area shown as Adeoye Akinjide’s house and kitchen on the Northern side.

(c) The said area includes part of the portion now in dispute verged Purple on plaintiff’s plan.

5. After the said grant the defendant’s father, Jinadu, built a house on a portion of the land verged Blue (which house was extended by defendant, after the death of Jinadu, about thirty years ago) and also built a plank fence to mark its boundary with that of the plaintiff.
6. After the death of the said Jinadu about thirty-five years ago, the land verged Blue became Jinadu family land and was succeeded to by the defendant as his eldest son under Native Law and Custom.
7. The defendant continued to exercise absolute and maximum acts of ownership on the entire area described above by burying corpses of members of their family thereon particularly on the area where Ansetu Alake built her house.
8. One Madam Salamotu, a member of the plaintiffs family, unlawfully trespassed on the portions of the land granted………and commenced building operation………the defendant protested and did all in his power to prevent the said Madam Salamotu from building on the said land.
9. When the defendant could no longer contain the activities of the said Salamotu, Ansetu Alake and Zacheus Olajide the defendant took the action referred to in paragraph 12 of the Statement of Claim in 1965 before the Ibadan Grade 2 Customary Court for Declaration of Title and Injunction over the marked Salamotu and Ansetu and the area verged purple on the plan of the plaintiff attached to the Statement of Claim.
10. The defendant who was the plaintiff in the said action lost in the customary court but won in the High Court Suit No.1/14A/69 where the judgment of Grade ‘A’ was set aside and a retrial ordered.
11. The retrial had” chequered career before it was struck out. But attempt by the defendant to have the case relisted was stopped by the reorganisation of the customary court and the eventual closure of the said courts up till now.
12. With further reference to paragraph 15 to 20 of the statement of claim the defendant says:-

(a) During the pendency of the action taken by the defendant the said Zacheus Olajide abandoned the house which he built on the area verged purple.

(b) By 1970 the house was in a ruinous state and constituted a grave danger to the lives of the people in that area and in particular a danger to the house of the defendant which was in close proximity to it.

(c) About three years later part of the house fell down and recently, last year, the dilapidated remains of the house fell down during one of the heavy down pour of rains after a stormy spell.