Chief Kehinde Onadehin (Gunsenemo) And Ors V. J. S. Sonuga And Anor (1974)

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FATAYI-WILLIAMS, JSC. 

In the Ijebu Ode High Court, the plaintiffs, now respondents, claimed against the defendants, now appellants, jointly and severally, the sum of £1,250 (N2,500) as special and general damages suffered by the plaintiffs as a result of the trespass committed by the defendants by unlawfully entering upon a piece of land known as Agbodu farmland in Simawa Village, Shagamu District, during the months of April and May, 1963. They also asked for an injunction to restrain the defendants their servants and/or agents from committing further acts of trespass on the said land.

In their amended statement of claim, the plaintiffs averred in paragraphs 5 to 12 as follows:- 5. The plaintiffs aver that Ogbodo, their ancestor, had settled and farmed the land for many years before his death. After the death of Ogbodo, Ajayi Amobitasa, his son, inherited the land and continued to cultivate and farm it. He, Ajayi Amobitasa, was the father of the mother of the plaintiffs who inherited the land through their mother, Erinle, under native law and custom.  

6. The plaintiffs’ family which is known as Ogbodo family have been in possession of the whole land since it was settled upon by their said ancestor and the plaintiffs have for about or more than 40 years remained in undisturbed and uninterrupted possession of the land since the death of their mother exercising diverse acts of ownership e.g. granting portions of their land to strangers to farm for cash crops, while their members have also been farming on portions thereof for cash crops and have planted economic trees from time to time without let or hindrance from any quarter. 7. The plaintiffs aver that their mother, Erinle had granted portions of the land to some of the defendants ancestors to farm for cash crops on payment of yearly rent, and that the defendants knew of the relationship which existed between their family and the plaintiffs’ family.

8. The plaintiffs also aver that their mother, Erinle, did successfully assert and defend her right and title to the land against trespassers and other intruders in a court of competent jurisdiction to the knowledge of the defendants while she held it for an estate of inheritance in possession till the time of her death in September, 1927. Vide Suit No. 26/1922 between Erinle and Oduntan.   9. The plaintiffs further aver that the defendants’ ancestors had never disputed but admitted in evidence the exclusive right of ownership of the plaintiffs’ predecessors-in-title over the Agbodu farmland in a Suit No. 17/32 between the 1st plaintiff and the defendants’ predecessor-in-title.

The plaintiffs specifically plead this case and rely on the proceedings and judgment as constituting estoppel per rem judicatam against the defendants in so far as ownership or declaration of title in favour of the plaintiffs are concerned. 10. The plaintiffs aver that before and since the action was filed the defendants, their agents and/or their servants have unlawfully entered the said land and have felled trees for logs and have continuously reaped economic crops (e.g. cocoa, kola nuts, palm fruits and cash crops also, such as yams, cocoyam, cassava, corn, vegetables etc. without the knowledge and consent of the plaintiffs.

11. The plaintiffs also aver that the acts of trespass by defendants cover very extensive portion of the land and the defendants have also committed acts of waste on the land. 12. The plaintiffs further aver that the defendants and their agents have unlawfully entered on the land given to strangers or tenants and have plundered, robbed and deprived them of their farm products. The defendants denied all these averments in their own statement of defence. They averred in paragraphs 12 to 19 thereof as follows:- “12. The defendants will say in reply to paragraph 9 of the statement of claim that the action referred to was between J.S. Sonuga and Olokun, and that the subject of litigation was in respect of land at SIMAWA VILLAGE’ and not ‘AGBODU FARMLAND.’

13. The defendants will say that judgment in respect of that case was in favour of OLOKUN 14. The defendants aver that the decision in Suit 17/32 was to the effect that the plaintiffs and defendants are joint owners of the land in dispute. 15. That the judgment of Suit 17/32 was confirmed in the judgment of Doherty J., in Suit J/26A/61 delivered on the 16th May, 1962, at the Ijebu Ode High Court. PAGE| 5 16. The defendants say that their ancestors granted land to the plaintiffs and that since this grant they have not entered into the portion granted to the plaintiffs. 17. The portion granted to the plaintiffs is marked YELLOW on the defendants’ plan.

18. The defendants will show that it is the plaintiffs who trespassed into the defendants’ land, and as a result of this trespass the defendants in the Shagamu Grade B Customary Court, instituted action in suit LJ/78A/59 against the plaintiffs which suit after series of appeal is now to be heard DE NOVO at the Ijebu Ode Grade B Customary Court.  

19. As per paragraph 13 of the statement of claim the defendants say that there is no place known as IGBOTI. The defendants say that land at Agbodu is farmed by the GUNSENEMO FAMILY, and that the residential area is known as SIMAWA VILLAGE.” Evidence was adduced by both sides. In a reserved judgment, the learned trial Judge considered the evidence in detail and observed as follows:- “It is true that in this case the plaintiffs are not claiming a declaration of title to the land but from the nature of the claim and the way the case of the plaintiffs have been presented they have put their title in issue: Abotche Kponuglo & Ors. v. Adja Kodaja 2 WACA pages 24, 25.

They have asked the Court from the way the case has been presented on their behalf to hold that the defendants are estopped by the series of judgments in their favour which were pleaded and tendered in evidence that the title of the disputed land is in them. In this respect, they have failed to establish this and having come to this conclusion, I need not make any finding as to which of the story about the settlement of the disputed farmland given by either side is correct or more probable.” The learned trial Judge also considered the evidence given by both sides with respect to their respective claim to be in possession of the disputed land. On this point, he stated as follows:-   “I accept and believe the evidence of all these witnesses of the defendants and find that members of the Gunsenomo family are farming on the land in dispute except the area edged yellow in Exhibit 8.

The plaintiffs in my view have not shown me that they have unambiguous and exclusive possession of the land in dispute as claimed by them in Exhibit 1. I am more inclined on the evidence to believe that their possession of any part of the land is as shown on the portion edged yellow in the defendants’ plan Exhibit 8.” He thereupon dismissed the plaintiffs’ claims for trespass and injunction.

In the appeal by the plaintiffs to the Western State Court of Appeal against the judgment, that court, after considering the arguments put forward by learned counsel for the plaintiffs, stated that, at the trial, the defendants joined issue with the plaintiffs on two matters – settlement and estoppel per rem judicatam and that in regard to the issue of settlement the defendants put up a rival claim. The court of appeal then observed as follows:- “The learned

Other Citation: (1974) LCN/1841(SC)