Alhaji Karim Laguro & Anor. V. Honsu Toku (Bale Of Itoga) & Anor. (1992)

LawGlobal-Hub Lead Judgment Report

M. A. BELGORE, J.S.C

The appellants were defendants at the trial Court and also the appellants at the Court of Appeal. The respondents took a writ against them claiming declaration of title to a piece of land at Itoga in the then Badagary Division of Lagos State, five hundred pounds damages for trespass to the same land and injunction restraining them, their agents or other members of Ibereko Community from continuing trespass on the land. The writ was taken out on 3rd February 1972.

The appellants, as defendants, not only denied the claim but also counter-claimed for a declaration of title to the same piece of land and sought forfeiture of the plaintiffs/respondents’ customary tenancies allegedly held of them by the plaintiffs/respondents; they also claimed possession.

The land in dispute is situate on both sides of the road along Ade-Odo Badagry Road. In the North of it is the land lbereko (the defendants/appellants), to its East are Aradagun and Mosafeso Communities and to the West is the land belonging to Toriko and Ajarafedo communities. In the South are the people called Idaleh.There are buildings and farms of the plaintiffs on the land. When the Ministry of Agriculture wanted to acquire the land there was a census of economic trees and crops and the list was given to Honsu Toku, Bale of Itoga who is the first plaintiff and the list is Exhibit A at trial Court.

It was sometime in 1972 that the defendants including one Ojojo entered the disputed land and destroyed their trees and crops and took away firewood and other things. They did extensive damage to the portion where they attacked. It must be pointed out that all the boundary neighbors of the disputed land and the respondents are of Egun stock except the appellants who are Aworis. Both parties tendered plans of the land. Whilst the plaintiffs/respondents gave the genealogy of their long presence on the land, through their fore-fathers, the appellants gave conflicting evidence which the trial judge carefully enumerated. Examples are (1) the L.A. Primary School referred to as being on the land and belonging to the appellants is actually outside it. (2) the Agricultural settlements allegedly on the disputed land is outside the disputed land. The only evidence of the appellant of long possession is that their “forebears gave the land to some people. He gave them absolutely. This was more than 300 years ago ……………………….. The Hoga and Zanmu people have been on the land for about 60 years ago (sic)”. The trial judge, after a review of the entire evidence, made his findings and found for the plaintiffs now respondents as follows:

Plaintiffs are entitled to a Right of Customary occupancy of all the land edged RED in EXHIBIT “N1” or edged GREEN in EXHIBIT “J” in these Proceedings, as provided in the Land Use Edict 1978.

It is also adjudged that the plaintiffs do recover from the Defendants N200.00 (Two Hundred Naira) as damages for TRESPASS to their land, being the land in dispute in this case.

Finally I make an Order of INJUNCTION restraining the Defendants, their servants, agents or other members of the Ibereko Community from continuing or committing any further acts of trespass on any portion of the land in dispute in this case”.

Against this judgment the appellants appealed to Court of Appeal.

After filing their respective Briefs of Arguments, the respondents applied to amend their statement of claim as filed in the High Court in paragraph 7 thereof by deleting the words “on or around 9th of February 1972” and inserting in their place the words “sometime before the commencement of this action. The amendment was granted and the appeal was argued”. The judgment in the appeal was delivered on the 20th day of May 1986 affirming the decision of the trial Court. Thus this appeal to this Court. It must be pointed out that the appeal was dismissed as a unanimous decision of the Court of Appeal except that in doing so. Nnaemeka-Agu J.C.A (as he then was), dissented on the question of amendment of statement of claim aforementioned. He was of the view that the amendment was too late and as such he would not allow the amendment and the trespass that was found in favour of the respondents. He reasoned that as the battle was fought on a pleading complaining of trespass after the writ was issued could not be remedied by the amendment as the other party would be at a disadvantage. He agreed it was right to amend if the proposed amendment would bring properly into focus the issues between the parties and cited Ibanga & Ors v, Usanga & Ors. (1982) 5 S.C. 103, 126.127 and Akinkuowo v. Fafimoju (1965) NMLR 349; (1965) 2 SCNLR 76. He believed the justice of the case in this instance could not be met by the amendment. He also relied on Newby v. Sharpe (1878) Ch D, 36 and Odeyinka & Ors, v. Ogunjimi (unreported, C.A.W.9 (168) for his decision. He held that the amendment would prejudice the defence of the appellants and he would for that reason agrees with the lead judgment of Kutigi J.C.A (concurred in by Ademola J.C.A) except for the finding of the appeal against trespass which he would allow. He thus also dismissed the appeal against declaration of title and injunction.

Counsel for the appellants formulated the following issues for determination in this appeal:

“The issues which call for determination by the Supreme Court in this appeal are as follows;-

(1) Whether the Respondents discharged the onus cast upon them by the law to warrant the declaration of customary right of occupancy of the piece of land in dispute made in their favour by the lower Court.

(2) Whether the Court below was not in error when it held that the learned trial Judge properly evaluated the evidence led before him.