Gbadamosi Adegoke V. Chief Nathaniel Agboola Adibi & Anor (1992)

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  KUTIGI, J.S.C.

By paragraph 21 of the Statement of Claim, plaintiffs’ claims against the defendant read thus:-” (i) Declaration of a right of occupancy to that piece or parcel of land situate, lying and being at Ikoyi Road. Ogbomosho, verged yellow (less the area verged brown) in Plan No. AK 4679A dated 7th October. 1978.

(ii) N2.000.00damages for trespass committed by or with the authority of the defendant on the said land between 1967 and 1974.

(iii) Injunction restraining the defendant whether by himself, his servants, agents or any of them otherwise howsoever be restrained from committing any further acts of trespass on the land in dispute.”

Pleading were filed and exchanged. At the trial each side led evidence to support its case.

The plaintiffs’ case as pleaded in their statement of claim was briefly that a vast area of land lying and being at Ikoyi Road. Ogbomosho and verged red on the plan Exhibit B was granted jointly to the plaintiffs’ ancestors by one Baale (Shoun) Olawuse about 150 years ago. It was their case that their ancestor made a grant of part of the land and verged blue in Exhibit B to the defendant’s ancestor. They said the land in dispute which is verged yellow in Exhibit B did not form part of the grant which their ancestor made to the defendant’s ancestor.

In their Amended Statement of Defence, the defendant admitted that the plaintiffs’ ancestor did grant a portion of land marked Red in Exhibit B to his ancestor. He denied that the area granted to his ancestor was the area marked blue only in Exhibit B as stated by the plaintiffs. His case was that the area which was granted to his ancestor comprised the areas verged blue and yellow in Exhibit B.

The same area of land is verged red on his counter plan EXHIBIT N. The defendant also tendered judgments of Ogbomosho Grade ‘B’ Customary Court and Chief Magistrate Court, Ile Ife. Exhibits E.2 & E.3 respectively, as showing acts of ownership and possession of the area in dispute. He said he had never exceeded the area granted to his ancestor by plaintiff’s ancestor.

At the end of the trial, the learned trial Judge, Ibidapo-Obe, J, after considering the evidence before him, dismissed plaintiffs’ claim in its entirety. The plaintiffs were dissatisfied with the decision of the trial Court and so appealed to the Court of Appeal where their appeal was allowed. Dissatisfied with the judgment of the Court of Appeal the defendant has now appealed to this Court. He will henceforth be referred to as the “appellant” while the plaintiffs will be called the “respondents”. Briefs were filed and exchanged. They were adopted at the hearing. In his brief of argument Mr. Ogunwole learned counsel for the appellant raised three issues for the consideration of this Court in the appeal. They are as follows:-

“1. Whether the plaintiffs have shown the boundaries of the land which they are claiming. If the answer is in the negative, whether the Court of Appeal was right in granting declaration of statutory right of occupancy, damages for trespass and injunction.

2. Whether the onus of proof of the extent of the land granted to the defendants’ ancestor is on the defendant. If the answer is in the positive whether the defendant has discharged the onus of proof.
3. Whether the Court of Appeal can suo motu set aside the judgment of Grade ‘B’ Customary Court in suit No.180/9 (Florence A. Adeniyi v. Adisa Pabi and Chief N. Adibi); when issue was not joined on the jurisdiction of the Grade’ B’ Customary Court to hear the case and the plaintiffs did not give evidence that the area in dispute in the said case was in the urban area vide OY. S.L.N. 13 of 1978.”

With regard to the first issue, counsel submitted that the respondents did not plead the boundaries of the land claimed by them and thereby failed to prove its identity. He said the Court of Appeal was wrong to have held that there was no dispute about the identity of the land claimed. He referred to the judgment of the High Court page 75 lines 29 – 44 and page 76 lines 1-4. He said in addition, that the plans filed by the parties, EXH.B by the respondents and EXH. N by the appellant, were not identical. That the respondents having failed to ascertain the identity of the land in dispute their claims were rightly dismissed by the trial Court and the Court of Appeal was wrong to have reversed same.

It was further submitted that it was wrong for the Court of Appeal to have awarded damages for trespass and injunction against the appellant when the respondents had failed to prove the identity of the land in dispute. We were referred to the following cases:€¢

Epi v. Aigbedion (1972) 10 S.C. 53

Odesanya v. Ewedemi (1962) 1 All NLR 320; (1962) 2 SCNLR 23