Home » Nigerian Cases » Supreme Court » Joshua Ogunleye V. Babatayo Oni (1990) LLJR-SC

Joshua Ogunleye V. Babatayo Oni (1990) LLJR-SC

Joshua Ogunleye V. Babatayo Oni (1990)

LawGlobal-Hub Lead Judgment Report

S.M.A.BELGORE, J.S.C.

The plaintiff/appellant took out a writ claiming before the High Court of Oyo State, sitting at Ilesha in Ilesha Judicial Division,the sum of N25,000.00 from the defendant/respondent for the act of trespass on a piece of land at Osu by the defendant. He also asked for perpetual injunction against the defendant, his servants, agents, privies or anyone claiming through the defendant from any further act of trespass on the land.

The appellant based his claim on two premises, to wit, native law and custom, and on statutory Certificate of Occupancy granted him by the Governor of Oyo State on the same land on 27th day of June, 1983. The issues involved in the pleadings could be seen clearly by reproducing parts of the statement of claim and statement of defence:

Statement of Claim

(1)….

(2)….

(3) The plaintiff avers that on or about 16th day of January, 1978 he was granted a parcel of land at ARIKESE Street, along Ife/llesa Road, Osu by the Osu community.

(4) The plaintiff avers that the grant was made under native law and custom and the grant was evidenced by a document.

(5) Plaintiff avers that the land granted him measured about 200 feet and faced Ife/llesa road.

(6) Plaintiff avers that the grant was made to him to build a petrol station.

(7) Plaintiff avers that he immediately went into possession and started to exercise all acts of ownership without anyone disturbing his possession or ownership thereof.

(8) Plaintiff avers that he caused the land granted him to be surveyed by A.B. Apatira, who prepared him a survey plan 2142. Plaintiff will rely on this survey plan at the hearing of the case.

(9) Plaintiff avers that he later applied for a Certificate of Occupancy and was granted one dated 27th day of June, 1983 and registered as No. 30/30/2514 of the lands registry in the office of Ibadan (plaintiff pleads the Certificate of Occupancy).

(10) Plaintiff will contend that on his application for Certificate of Occupancy that his claim in respect of the land was advertised and that there was no objection filed to his application.

(11) Plaintiff avers that he caused to be carried onto the land BLOCKS and lorry loads of GRAVEL towards constructing a petrol station for which purpose the land was granted him.

(12) Plaintiff avers that on or about the 12th day of February, 1984, when he went to the land in dispute found that someone has gone to the land with a caterpillar damaged all his blocks, survey pillars and dispersed the lorry loads of gravels on the land.

(13) Plaintiff avers that on his inquiry found that it was the defendant who was responsible for the trespass and caused the damages.

(14) Plaintiff avers that he made the defendant understand that he would pay for the damages he caused the plaintiff by committing the acts of trespass enumerated in paragraph (12) above.

(15) The plaintiff avers that on or about 28th day of February, 1984, the defendant caused one L. Olufemi Komolafe (solicitor) to write the plaintiff (the letter of 28/2/84 by Mr. L.A. Komolafe is pleaded).

(16) The plaintiff avers that unless the defendant, his servants, agents, privies or anyone claiming for or through the defendant are restrained, they may continue to go to the land to commit further acts of trespass. ”

As against this statement of claim is a statement of defence, which from paragraph 3 makes the following disclosures in its averments:

“(3) The defendant denies paragraphs 1,3,4,5,6, 7, 8, 9, 10, II, 12, 13, 14 and 16 of the plaintiff’s statement of claim and therefore puts the plaintiff to the strictest proof thereof.

(4) With reference to paragraph 3 of the plaintiff’s statement of claim, the defendant avers that the parcel of land purportedly granted to the plaintiff by the Osu community on or about the 16th day of January, 1978 included and/or embraced the defendant’s land situate, lying and being at ARIKESE/AHERE Street, Oke Omi, along Ilesa/lfe Road, Osu, in the Atakumosa Local Government Area of Oyo State of Nigeria.

(5) The defendant’s said land at Arikese/Ahere Street, Oke Omi, Osu, is as shown on plan No. AAW/OY/5/84 dated the 2nd day of July, 1984 and drawn by Akin, A.A. Williams, licensed surveyor and attached herewith and marked exhibit ‘A’.

(6) The boundary of the defendant’s aforementioned land is as shown on the survey plan marked exhibit ‘A’ and is as follows:

On the first side by Ilesa/Ife Road. On the second side by Simeon’s house/Breadfruit tree. On the third side by a coconut tree.

(7) When the defendant came from Lagos on or about the 12th day of February, 1984, the defendant visited the land in dispute as the defendant used to do since the death of his father on November 15th, 1947, but to the defendant’s surprise, the defendant observed that some quantity of laterite had been deposited on the land. The defendant enquired from his relations at Osu about the strange laterite found on the land but none of them knew the person who deposited it there. Some of the defendant’s relations even thought it was the defendant himself who deposited the laterite on the land in dispute in preparation for the defendant’s proposed new building.

(8) On the same 12th day of February, 1984, the defendant hired a caterpillar to level up the laterite deposited on the defendant’s land together with the debris and/or ruins of the defendant’s father’s old building thereon in full preparation for the construction of the defendant’s proposed new building.

(9) Also simultaneously on the 12th day of February, 1984, the defendant went to Ilesa and bargained with a contractor trading under the name and style of Rowos and Company Nigeria Limited to reconstruct a standard canal at the back boundary of the land in dispute so as to allow for free flow of water or easy drainage and run-off from the surrounding swampy terrain into the main gutter of the Ilesa/lfe road which passes through the frontage of the defendant’s land.

(10) The defendant avers that the sum of Two Thousand and Seven Hundred Naira (N2,700.00) was paid to the said Rowos and Company (Nig.) Limited for effecting the construction of the canal and in respect thereof a receipt was issued to the defendant.

(11) On the 13th day of February, 1984 the defendant caused some quantity of gravel to be deposited on his own land.

(12) On the 14th day of February, 1984, there was a meeting of the five wards at Oke-Omi, Osu in Chief Ejemo’s house to which the defendant’s uncle, Mr. Theophillus Ola-Oluwa was invited.

(13) The defendant says that it was at that meeting of the five wards that the defendant’s uncle, Mr. Theophillus Ola-Oluwa was sent to the defendant by Chief Ejemo and some elders for the first time ever that the defendant should please permit the plaintiff to construct a petrol station on the land in dispute, as such a commercial venture by the plaintiff would bring further development to the Osu township.

(14) The defendant’s uncle was amazed to learn about the message he was requested to carry to the defendant and had to cleverly dodge the said Chief Ejemo of Osu and the elders present by suggesting to them that it would appear more proper if a delegation of four people was sent to the defendant instead of entrusting him alone with the message but quickly added that he had his misgivings that such a delegation might not even yield any fruitful result as he knew very well that the defendant would not be prepared to yield an inch of the land in dispute to anybody.

(15) The defendant later came to know that it was the plaintiff who was responsible for depositing laterite on the land in dispute as found there on the 12th day of February, 1984 by the defendant.

(16) On the 15th day of February, 1984, when the defendant came back to Osu from Lagos, the defendant went on the land and found that the plaintiff had tampered with the gravel which the defendant deposited thereon on 13-2-84. The defendant further discovered that either the plaintiff and/or his agents, servants or privies had damaged, destroyed and completely defaced the canal constructed by the defendant along the back side of the boundaries of the land in dispute. The defendant lodged a complaint with the police at Osu in respect of the various acts of trespass committed on the defendant’s land by the plaintiff.

(17) The defendant avers that the plaintiff further trespassed on the land in dispute on the 4th day of March, 1984, by depositing about one hundred concrete cement blocks thereon apparently to disturb the defendant from effectively carrying on with his building project on the said land. But before then, the defendant had briefed his lawyer, Mr. L. Olufemi Komolafe, to write a warning letter to the plaintiff about his acts of trespass on the land but the plaintiff failed to heed the warning by depositing the cement blocks thereon. The plaintiff’s cement blocks are still on the land in dispute by now.

(18) As a result of the plaintiff’s various acts of trespass on the defendant’s land, the defendant caused an action to be instituted against the plaintiff at the Ilesa High Court of Justice in suit no. HIL/19/84. BABATAYO ONI versus JOSHUA OGUNLEYE. The defendant therefore avers that the land in dispute in the present suit is the same as the land in suit no. HIL/19/84 where the defendant as plaintiff also filed a plan of the land in dispute. The plaintiff was personally served with the defendant’s writ of summons in suit no. HIL/19/84 on 7-3-84 at Osu.

(19) The defendant avers that the defendant’s land is within the land purportedly granted to the plaintiff by the Osu community on 16-1-78 as claimed by him.

(20) The defendant avers that the area being claimed by the defendant and which forms the subject matter of dispute between the defendant and the plaintiff is almost triangular in shape save for a minor bulge towards the middle of the side facing Ilesa/lfe federal highway which was so demarcated in accordance with the survey rules.

(21) The defendant avers that the entire Osu community has no land of its own at Osu which it can grant to anyone at all.

(22) The entire Osu community was made up of a conglomeration of seven main distinct descent groups and/or settlements which came to converge at separate locations and points within Osu township at different times and dates.

(23) The said descent groups are traditionally classified as follows:

(i) The descendants of the Ogboni of Ilesa who settled at ARIKESE/AHERE where the land in dispute is situated.

(ii) The Ogidigbasa/Aguja descendant group. These comprised people from Okesa street, Ilesa and they either belonged to the Obanla chieftaincy or the Ejemo chieftaincy of Okesa street, Ilesa. The defendant’s grandfather, Ogunloke-Odo Ifaturoti, became the second Ejomo of Aguja, Osu, between 1941 and 1952 when he died.

(iii) There was the Afon/lkobi descendants group who settled at Ikobi, Afon and Oke-Oja street in Osu. They were the direct descendants of the Owa-Obokun Adimula of Ijesa land.

(iv) There was the Imelejo descendants group who settled at Imelejo street, Osu.

(v) The Iloo descendants group who were partly members of the Loro chieftaincy family of Ilesa. They settled at Iloo street at Osu.

(vi) The Obanifon descendants group. They formed part of both the Odole/Arapate chieftaincy groups at Ilesa and they settled at Osu.

(vii) Finally, there were the Elemoso and Ajido descendants groups who settled who settled at Elemoso street, and Ajido street respectively.

(24) The defendant avers that the ancestors of these descent groups had been living severally and jointly in their respective areas of settlements until recent years when the Owa Obokun Adimula of Ijesaland first appointed one of his sons as the Loja of the entire Osu community for administrative purposes only. The present Chief Omolade Adeyokunnu was the second Loja of Osu. The Loja of Osu is not a landed gentry; he has no land anywhere at Osu or its environs.

(25) The defendant says that these separate and distinct descent groups became the lawful owners of their individual various areas of settlements within the township of Osu to the exclusion of any other descent group.

(26) The defendant further says that as each descent group started to expand in their own individual sectors of the town, they later began to interwoven through grants and acquisition of land for building and farming purposes.

(27) The defendant’s ancestors and family belong to the Ogidigbasa/Aguja descendants group who first settled at Odidigbasa/Aguja at Osu.

(28) The land in dispute was originally owned by the Ahere/Arikese people of Osu. The defendant’s father called Ezekiel Oni Aro Ifaturoti took a grant of the said land from the Ahere/Arikese people under native law and custom in the year 1936.

(29) Odofin Elegbeleye was the head of the Ahere/Arikese people of Oke-Omi, Osu at the time the defendant’s father acquired the land in dispute.

(30) The defendant avers that the grant made to his father by the Ahere/Arikese descent group was an absolute one and is not subject to any reversible principle of law.

(31) The defendant’s father paid all the customary gifts in respect of the grant to the Ahere/Arikese people. These included a sum of 1 pound,5 shillins (now N2.50); Kolanuts, palmwine and one bottle of dry gin.

(32) The defendant avers that since the land was granted to his father in 1936, his father had been in possession thereof at all material times for many years.

(33) The defendant’s father exercised various acts of ownership on the land in dispute and erected a house thereon sometimes in 1936 when the grant was made to him.

(34) The house built on the land by the defendant’s father comprised two large shops in the front and four living rooms with a separate kitchen and what may be called an old type of bathroom at the backyard.

(35) The defendant’s father’s house on the land in dispute was roofed with corrugated iron sheets,a rare thing at Osu by that time. On the day the house was roofed, plenty of food and drinks were prepared and served to the people of Ahere/Arikese quarters. At that time in 1936, very few houses were roofed with corrugated iron sheets at Osu.

(36) Many people had lived in the house built on the disputed land before and these included the following people:

(i) One Ikan, an Ijebu man, who was a goldsmith by profession. He lived in the house for several years between 1941 and 1956.

(ii) Messrs. Bodunrin Arimoro and Asunni Olusesi who lived there sometimes between 1942 and 1946.

(iii) Other members of the defendant’s family also lived in the house between 1936 and 1958.

(37) The defendant’s father died on the 15th day of November, 1947 leaving behind him many children. Among them are Mrs. Rebecca Eto Famurewa, Jacob Sunday Oni, Folorunso Oni, Olaniyi Oni and the defendant. The defendant’s father also left behind him many personal and real properties including the house built on the now disputed piece or parcel of land.

(38) At the death of the defendant’s father, his personal and real properties were shared among his children in accordance with Ijesa native law and custom as applicable at Osu and the land in dispute together with the house thereon then devolved on the defendant by way of inheritance under native law and custom to the exclusion of all the other children of the defendant’s father.

(39) The defendant avers that he always looked after the land and house and was responsible for clearing its surrounding premises after he inherited same from his late father and entered into immediate occupation and/or possession thereof.

(40) The said house which was built of mud wall and which was surrounded by swamps later collapsed on or about the year 1958. The defendant thereafter removed the iron sheets and the roofing plants, doors and windows of the house for preservation until the defendant would be strong enough to rebuild same on a very strong foundation.

(41) Between 1958 and 1959, the defendant was a student of Apostolic Teacher Training College, Ilesa and was not in a position to rebuild the collapsed house but continued to take care of the premises personally by clearing the weeds thereof. Sometimes the defendant used to engage the services of hired labourers or close relations to help clear the premises of weeds.

(42) At all material times, the debris or ruins of the building walls were still discernable on the land in dispute when the premises were being cleared of weeds and many people at Osu used to praise the defendant for all his efforts in taking care of the land and pray that God would spare the defendant’s life and give him strength to accomplish his desire and wish to rebuild the house.

(43) In the year 1976, when the defendant wanted to start a new building on the land in dispute, the present Ilesa/lfe road was still under construction and it was not then known how much of the land would be affected by the new road, the defendant was constrained to refrain from continuing with the building project as it was rumoured that all the houses and lands along the present Ilesa/Ife federal highway were going to be affected by the new construction.

(44) The defendant says that after the Ilesa/Ife road was completed and it became certain that the defendant’s land was not seriously affected, the defendant commenced the architectural designs of his proposed new building on the land.

(45) The defendant eventually submitted the plan of his proposed building on the land in dispute to the Atakumosa local planning authority for approval. The defendant has since got an approved building plan in respect of the said piece or parcel of land. The defendant will rely on the said building plan at the trial of this suit.

(46) The defendant avers that under the Osu native law and custom, once an absolute grant of any land is made to a person, the principle of reversion will not apply unless that person has no issue surviving him or has no blood relation of his own.

(47) When the defendant became worried as to the boldness of the plaintiff in his persistent acts of trespass on the defendant’s land after the defendant’s solicitor’s warning letter, the defendant was forced to make further enquiries during which the defendant learnt it was probable that the plaintiff might have fraudulently and surreptitiously obtained a purported grant of the land in dispute from certain people at Osu. The defendant further learnt that it was probable that the plaintiff had relied on such a mischievous purported grant to obtain a statutory certificate of occupancy in respect of the land.

(48) As a result of the information gathered, the defendant went to the Ministry of Works and Housing (Lands Division) to conduct a search on 9-3-84 for which the defendant paid a receipt search fee of ten naira (N10.00).

(49) The defendant avers that the search conducted by him reveals the following facts:

(i)That the plaintiff has been issued with a certificate of occupancy dated 27th day of June, 1983 and registered as No. 30/30/2514 of the lands registry in the office at Ibadan.

(ii) That the plaintiff relied on a document titled “Agreement For Grant of Land” dated the 16th day of January, 1978, for the grant of the said certificate of occupancy.

(iii) That the grantors of the purported grant were:

(1) Oba Omolade Adeyokunnu (the Loja of Osu)

(2) Chief Daniel Adedeji Ojo (the Ejemo of Osu)

(3) Chief Samuel Ogunkolade (the Odofin of Osu)

(4) Chief Ezekiel Ayeni Olowolofu (the Salaro of Osu)

(5) Chief Emmanuel Ajileye (the Elemoso of Osu).

(iv) That the purported grant was made for themselves and on behalf of Osu community

(50). The defendant avers that the purported grant was a fraudulent one in that:-

(i) Both the grant and the document relating thereto were backdated apparently with an intention to beat the Land Use Act of March 29th, 1978.

(ii) One of the purported grantors, Chief Samuel Ogunkolade was a stark illiterate who could neither write nor read but whose signature was forged on the document. This apart, the said Chief Samuel Ogun kolade had been totally and perpetually blind for over 10 years ago to be able to play any part with regards to the document.

(iii) It was further revealed that the purported “Agreement for Grant of Land” was prepared by one Emmanuel Adeyeye Adelekun, a solicitor & advocate of B.41 Okesa Street, Ilesa, whereas the address of the said solicitor should have read A.158A Isinkin/Isokun Street, Ilesa, if the document was actually prepared on 16-1-78 because Mr. Emmanuel Adeyeye Adelakun was at all material times engaged in the chambers of S. Olu Aoko at A.158A Ishinkin/Isokun Street, Ilesa, and did not set up his own personal chambers or office until sometimes in 1980 when he broke off from Mr. S. Olu Aoko’s chambers and took up a premises at B.41 Okesa Street, Ilesa.

(iv) When Mr. Emmanuel Adeyeye Adelekun broke off from the chambers of Mr. S. Olu Aoko, solicitor & advocate, of A.158A Isinkin/Isokun Street, Ikesa, he first settled at Adeti Street, Ilesa from where he finally moved to B.41 Okesa Street, Ilesa sometimes in 1980. The “Agreement For Grant of Land” therefore must have been prepared when Mr. E.A. Adelakun moved into his B.41 Okesa Street, Ilesa premises sometimes in 1980 and not on 16-1-78.

(51) The defendant avers that the grantors of the plaintiff have no community land at Osu which they can grant to anybody.

(52) The defendant says neither the Loja of Osu nor the entire Osu community have any community land at Osu.

(53) The defendant therefore relies on the maxim “nemo dat quod non habet” and says that the grantors of the plaintiff have nothing to grant to the plaintiff.

(54) With regards to paragraph 11 of the plaintiff’s statement of claim, the defendant says that the land in dispute has been declared unsuitable for a petrol station and as a result the plaintiff could not obtain any approved plan from the Atakumosa Local Planning Authority for the purpose of erecting any petrol station thereon.

(55) The defendant says with regards to paragraph 10 of the plaintiff’s statement of claim that the defendant would not know that the land advertised has any bearing with his own land by reason of the following facts:

(i) The boundary was not described as contained in the document on the “Agreement For Grant of Land” .

(ii) The area of the two lands are different. The defendant’s land measured approximately 1523.430 square metres while the purported land of the plaintiff measured approximately 2787.856 metres.

(iii) The plaintiff’s land is described as being along Ife road, Isale Omi Area, Osu while the defendant’s own land is at Arikese/ Ahere street, Oke-Omi along Ilesha/lfe road, Osu. There is no place known, called, described and being referred to as “Isale-Omi” at Osu.

(56) WHEREOF the defendant says that the plaintiff’s claim is speculative, frivolous, misconceived and an abuse of the processes of court and should therefore be dismissed with heavy costs.”

In the face of the extensive and highly detailed statement of defence, the plaintiff did nothing more to his statement of claim. When trial therefore commenced, the defendant (now respondent) not only joined issue with the plaintiff on the following:

(1) “that the Osu community had no right to make any grant of land to the plaintiff as averred in the statement of claim;

(2) that the respondent’s father had been in possession of the land in dispute since 1936 due to allocation to him by Ogboni settlers at Osu to which set of settlers from Ilesha he belonged;

(3) that the Oloja of Osu by tradition could not make the grant he purported to make to the plaintiff; in fact the institution of the Oloja of Osu is of recent origin, new, the incumbent who purported to make the grant in 1978 to the plaintiff was the second Oloja sent by Owa of Ijeshaland and chosen from Odole family of Ilesha. It was contended therefore that there was no hard customary evidence that the Oloja could grant any land at Osu.

(4) that Osu is not an old town but a mere settlement of recent time as frontier of Ijeshaland. ” but also, in the statement of defence raised serious issues that remain up to now undisputed. Inter alia, he averred that all natives of Osu came from Ilesha in seven distinct groups to wit:

(1) “Arikese Akere, of Ogboni family, Ilesa, who control the area where the disputed land is situated.

(2) Ogidigbasa Aguja (of which the respondent’s grandfather was the head i.e. Ejewo Aguja between 1941 and 1942). They came from Okesa, Ilesha and the group was made up of either Obanla chieftaincy or Ejeme chieftaincy.

(3) The Afo/lkobi descendants who settled at Ikobi and were direct descendants of Owa Obokun Adimula of all Ijeshas.

(4) The Imelejo descendants who settled at Imelejo ward of Osu.

(5) Relations of Loro family of Ilesha called Loro who are at Loro, Osu.

(6) A group that came from the families Odole and Arapate of liesha and referred to as Obanfon group.

(7) The group that has two branches Elemoso and Ajido descendants.”

All these groups according to the respondent, settled in areas of Osu and the quarters of Osu where they stay bear their respective ancestral home names. Perhaps for administrative convenience, the Owa Obokun Adimula (for judicial notice, the Owa of Ijeshaland) seeing Osu prospering and growing decided to have co-ordinator of the activities of the various groups. He then appointed one of his children as the head of the town with the title of Loja. The present Loja, Omolade Adeyokunnu. P.W.2, is the second Loja to be so appointed and he was not a landed gentry in Osu since “separate and distinct descent groups” become owners of where they now occupy at Osu to the exclusion of any other group.

The respondent belongs to the Ogidigbasa/Aguja descendants who occupy the quarters at Osu called by that name. The land in dispute was owned by Ahere/Arikese descendants, and it is situated in Ahere/Arikese quarters. But it was granted to the respondent’s father by Ahere/Arikese people under native law and custom in 1936. The appellant in his statement of claim clearly averred in his paragraph 1 of statement of claim as coming from Imelejo street as averred also in paragraph 23(iv) of statement of defence. The appellant never denied these very important statements of facts in the respondent’s pleading. The foregoing, being not denied with all the opportunity available to the appellant to amend his statement of claim to fit in the new and all important averments in the respondent’s statement of defence running to fifty-six paragraphs of very important facts that were not met by the appellant’s statement of claim of mere sixteen paragraphs is stunning if not amazing. The principle of pleadings has time and again been explained in law books and decided cases in this country that I shall be on the superfluous side to cite them. But suffice to restate that pleadings are meant primarily to let parties know each other’s case. They can even settle issues so as to save the court’s time, by agreeing on those facts not in contest and leaving the court to decide from received evidence based on those facts in pleadings contested, the justice of the case.

Therefore all matters not denied in the pleadings whether raised in the statement of claim or statement of defence are taken as admitted.

Facts emerging from any pleading, raising new matters and throwing new light on the adversary’s averment must be denied. If not denied, they are taken as admitted because there is no element of surprise or embarrassment. There are those occasions when court suo motu can amend pleadings so as to bring the isues being fought by the parties into proper focus, but this is possible only when such amendment will not raise new issue or give the dispute of the parties entirely new colouration. The Judge who will suo motu amend of course must invite the parties to address him. Amusa Yesufu Oba v. Hunmuani Ajoke (see Olisa Chukura’s privy council judgments 1841-1943) at page 1018; Ambrose Ini v. Tinko (1929) IX N.L.R.8. The appellant’s claim was fully traversed by respondent’s statement of defence but it did not end there.

The statement of defence raised new issues to explain why appellant’s case has no merit. The facts so raised in the defence are of historical significance that if true, the appellant’s case would have no merit. The evidence in support of the appellant’s case hardly departed from his statement of claim; of course if it did, such points of departure would have gone to no issue. The appellant thus consistently relied on his grant from Osu people (exhibit A) and subsequent statutory certificate of occupancy granted on the same piece of land by the Governor of Oyo State in 1983 (exhibit B) as the main plank of his case despite the alarming important and damaging facts in the statement of defence that remain untraversed up to this moment, except for cosmetic attempt at the close of the evidence of both parties, when the counsel for the appellant, despite stiff opposition by the respondent on the principle of audi alterem partem, proposed to amend statement of claim by inserting after paragraph 5 thereof, a new paragraph 5(a) as follows:-

“That the portion of land granted to the plaintiff by the Osu community formed portion of land, which was formerly used as market and which market has gone into ruins.”

The motion proposing the amendment was argued as I said above, after all the evidence by both parties had closed. Trial Judge, curiously enough, did not rule there and then, but merely wrote as follows; “Ruling to be delivered along with the judgment later.”

He then proceeded to hear the addresses by both counsel. But what one would have understood easily by his reserving the ruling “along with the judgment” is that it would be contained in the judgment. That was not to be; for on 13th December, 1984, learned Judge delivered the ruling first and then went on to deliver the judgment. His ruling ended as follows:

“In my view, the present amendment only underscores the claim of the plaintiff that the area in dispute is a community land. I am satisfied that the present application is brought in good faith and it is hereby granted…

He proceeded immediately to read his judgment, after the ruling, in which he found for the appellant. He relied almost entirely on the amendment of the statement of claim and his opinion of the native law and custom in relation to rights of Chief and Heads of Community in relation to land. It is pertinent to quote him for his reasons in giving judgment in favour of the appellant:

In the case of the defendant he claimed a grant of the land in dispute to his father in 1936 by one ODOFIN ELEGBELEYE the head of AHERE/ARIKESE DESCENDANT People. No witness was called from Ahere/Arikese descendant group. In other words, the defendant failed to support by evidence the averment in his statement of defence supporting the grant made to his father in 1936. I prefer the evidence of grant as adduced in this court by the plaintiff to the purported and unhealthy evidence of grant adduced by the defendant. Let me state straight-away that I was impressed by the way the 2nd P.W.- Chief Omolade Adeyo- the Loja of Osu frankly and genuinely answered questions under cross-examinations. He appeared to me unruffled. I accept his evidence in its entirety.”

“The defendants struggled but in vain to dislodge the idea that communal land exists in Osu. The evidence before me as adduced by the plaintiff shows clearly that there is communal land at Osu:

“Communal land, as the word denotes, is land belonging to the community, village or family and never to an individual nor does it attach itself to a title”. See the case S. Adetona and 2 Ors. v. T. Ajani (1959) W.R.N.L.R.213 at 216.

Too much energy was wasted on the contention that 2nd P.W., the Loja of Osu has no land of his own at Osu. Such exercise has overlooked the meaning and significance and responsibility of chiefs and/or heads of community in relation to communal land. Learned counsel for the defendant strongly contested but in vain that the plaintiff had not traced the root of title of Osu community. This claim by the defendant is ridiculous and portrays lack of understanding of the principle of native law and custom governing communal ownership. I therefore reject the submission of learned counsel for the defendant that plaintiff should prove the root of title of communal ownership. In any event, this is a civil case on which a party only succeeds on the preponderance of evidence. I am satisfied and I do hold that the evidence adduced by the plaintiff on the issue of grant, is more buoyant, convincing and heavily supported by the statement of claim. ”

Against this judgment the present respondent appealed to the Court of Appeal, Ibadan branch. In the lead judgment by Ogundare, J.C.A., learned Justice immediately hit the nail on the head and did so admirably. What learned trial Judge ought to resolve was simple, according to Ogundare, J.C.A., but that he ignored the issue. What was required to be resolved, said he, “was not who had a better grant but who had a better title.”

The plaintiff, it was held, had failed to establish a better title than that of the defendant, the main burden that rested on him as complainant!

The judgment of this court by Fatayi-Williams, J.S.C. (as he then was) in Amakor v. Obiefuna (1974) 1 All N.L.R. (Part 1) at page 128 saying:

“Generally speaking, as a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.” was relied upon by the Court of Appeal. The Court of Appeal held that even the amendment of the statement of claim never cured anything in the face of the formidable statement of defence. Surely, there was nothing in the statement of claim to indicate how Osu community came into being, only the statement of defence avered to that. The statement of claim indicated nothing as to how the Osu community owned the land that it granted the plaintiff through Oloja of Osu and other Chiefs. The Court of Appeal allowed the appeal and thus, appeal to this court.

Before this court, Professor Jegede, of counsel for the appellant by motion urged the court to allow him argue additional ground of appeal on point of law not canvassed and not fully adverted to in the Court of Appeal and on which Court of Appeal never pronounced or refused to pronounce upon his brief of argument already adverted to the issues. The application was granted. The appellant therefore had the following issues:

(3) ISSUES FOR DETERMINATION

(3.3) Whether the appellant pleaded and proved the title of the Osu community to the land in dispute

(3.4) Whether the Court of Appeal was right in placing the burden of proof on the appellant to trace the root of title of the Osu community

(3.5) Whether the respondent had proven a better title to the land in dispute

(3.6) Whether the action should have been struck out “suo-motu” by the Court of Appeal for want of necessary parties.

Earlier on, there was application in chambers for leave to appeal with application for time having been extended to appeal. The grounds of appeal, very interesting indeed, are of great importance in apprehension of the Land Use Act, 1978 No.6 Laws of the Federal Republic of Nigeria. I set out the first ground that pertains to the aforementioned act and the two other grounds reading as follows:

“GROUNDS OF APPEAL:

(1) The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts by holding that the appellant failed to establish how the Osu community, which granted the disputed land to him became the owners of the land.

PARTICULARS

(a) The plaintiff pleaded and tendered the certificate of occupancy issued to him by the Oyo State government in respect of the disputed land.

(b) The certificate of occupancy being a prima facie evidence of the title to the disputed land, dispenses with the need to trace the radical title of the Osu community.

(c) The evidential implication of the certificate of occupancy shifts the burden of disproving the title of the appellant and the Osu community to the respondent.

(2) The learned Justices of the Court of Appeal misdirected themselves on the facts in holding that the respondent had established a better title to the disputed land when:

(a) The respondent did not lead evidence in support of the Ijesha customary law of succession to immovables under which he purportedly inherited the disputed land.

(b) The respondent did not lead proper evidence on the partitioning of his father’s property.

(d) The 4th D.W. regarded the property as belonging to her father.

(e) The respondent failed to call any credible witness from Ahere/Arikese family in proof of the grant of the disputed land to his father.

(f) The respondent did not establish by evidence his claim of succession to the land

(3) The judgment is against the weight of evidence.”

Professor Jegede certainly wrote a brilliant brief for the appellant in the face of the gigantic odds that had been built up from the trial court resulting in adverse result for the appellant in the Court of Appeal. In this court, in the oral argument to amplify his brief, he emphasised more on the Land Use Act, 1978. It is true the act is revolutionary and it was meant to streamline land use and management in the entire federation. The preamble to that decree was revolutionary enough. But I must say right now that that law should not be construed, despite its revolutionary nature of vesting in the “Military Governor” of each state the land within that state “to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions” of the decree [See S.1 Land Use Act, supra]. It at once seems that nobody holds any land again but only the Military Governor. The powers of the Military Governor have been exhaustively explained by this court in Savannah Bank v. Ajilo (1989) 1 N.W.L.R. (Pt.97) 305. But of great importance is the phrase “subject to provisions of this act. The act in section 2 states:

“2(1) As from the commencement of this decree

(a) all land in urban areas shall be under the control and management of the Military Governor of each state; and (b) all other land shall, subject to this decree, be under the control and management of the local government within the area of jurisdiction of which the land is situated.”

This subsection should be read along with the section which states:

“(4) Until other provisions are made in that behalf and, subject to the provisions of this decree, land under the control and management of the Military Governor under this decree shall be administered-

(a) in the case of any state where the land tenure law of the former northern Nigeria applies, in accordance with the provisions of that law; and

(b) in every other case, in accordance with the provisions of the state land law applicable in respect of state land in the state, and the provisions of the land tenure law or the state land law, as the case may be, shall have effect with such modification as would bring those laws into conformity with this decree or its general intendment.”

The land tenure law of northern Nigeria is still the law in the eleven states of Nigeria that formerly were part of former northern Nigeria and state land laws are still the laws in the remaining states of the Federal Republic. To make for avoidance of doubt, section 36 of the act provides in transitional provisions as follows:

“36(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this decree held or occupied by any person.

(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate local government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned,allowed to lie fallow for purposes of recuperation of the soil.

(3)…

(4) Where the land is developed, the land shall continue to be held by the person whom it was vested immediately before the commencement of this decree as if the holder of the land was the holder of a customary right of occupancy issued by the local government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the local government shall if satisfied that that person immediately before the commencement of this decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the local government.”

It can therefore be clearly seen that the decree of 1978 is not a draconian document it is supposed to be. The land whether developed or undeveloped in any area not urban, that is to say rural area, held by a person under a recognised customary tenure before the commencement of the decree in March, 1978 would continue such rights and privileges on the said land subject to provisions of the decree. Whether developed or undeveloped, the holder shall hold such land as if a customary right of occupancy had been granted to him by the local government of that area. If a person desires to alienate such land, his privilege of “presumed grant” may have to be extinguished because he will have to invoke the provisions of S.36(3) (supra) to register his holding for full recognition that he has been issued customary right of occupancy. The holder of such land could invoke the provisions of S.36(3) (supra) at his discretion. Where developed land is not in urban area, the law is that the person in whom such land was vested before the act came into commencement shall continue to have it vested in him as if he was a holder of a customary right of occupancy granted by a local government. It could therefore be seen that the land use act is not a magic wand it is being portrayed to be or destructive monster that at once swallowed all rights on land and that the Governor or local government with mere issuance of a piece of paper, could divest families of their homes and agricultural lands overnight with a rich holder of certificate of occupancy driving them out with bulldozers and cranes. The law as it is is that in areas not declared urban by a state government everybody remains where he has always been as if the new act has vested in him a customary right of occupancy.

Certainly in this case, all the appellant did at the trial court was that exhibit A headed “Agreement for Grant of Land” was a grant to him by Loja of Osu of an abandoned market place. The Loja of Osu, a prince of Ilesa, and the second supreme head they ever had in that rural place was purportedly supported in the grant by other chiefs in the following terms:

“WHEREBY, the grantors for themselves and on behalf of Osu community grant under native law and custom to the grantee portion of the grantor’s land situate, lying and being at Arikese street, Osu, Atakunmosa local government, Oyo State of Nigeria, which portion of land measured 150 feet by 200 feet and bounded as follows:

On the first side by Ife/llesa road,

On the second side by Mr. Simeon’s building,

On the third side by Mr. Taiye Egbeniboni’s building and

On the fourth side by Mr. Ogunjuyigbe’s building.

… with the appurtenances thereon for an estate of inheritance absolute in possession and free from all encumbrances.”

The above extract of exhibit A is not proof of custom of Osu. Exhibit A, I must say, is purported to be a legal document and not native law and custom. There is no statute of Oyo State declaring what native law and custom of Osu or Atakunmosa local government, Osu to land is. In every litigation in the High Court where tenets of customary law and statutes are applied, native law must be proved. Merely asserting that ‘it is under native law and custom’ is not prima facie the native law and custom. It is not enough a fortiori where a defendant, as against the vague statement of claim, has averred clearly and in systematic order the traditional history of the area not contradicted by the plaintiff. Is it not the duty of the plaintiff to prove his case Certainly in the face of the statement of defence, so meticulously tracing the historical movement of Ilesha people from certain eminent families to settle at Osu, each group dominating his own area, the burden fell on the plaintiff to do so more on his statement of claim and its cosmetic amendment not to mention the evidence he proferred which is devoid of any tradition. Loja Osu (or Loja of Osu), P.W.2, never mentioned his root of title. He merely said he granted the land to the plaintiff. Osu is not an ancient town, rather, it looks more like a frontier settlement of people from urban area. The P.W.2 is only the second Loja of that place. What is more interesting is the admission under cross examination by this Loja that he knew just a bit of the history of Osu and that he had no land at Osu, a clear affirmation of the statement of defence. Exhibit A prepared by one Emmanuel Adeyeye Adelakun (perhaps a letter writer), is surely not a document to be given the status of native law and custom, nor does it in the least claim to be a statement of traditional history. The Court of Appeal was thus right to have held that exhibit A was void and that the plaintiff (now appellant before this court) had no land vested in him by that document. That being so, the Court of Appeal [Omololu-Thomas, Ogundare, Sulu-Gambari, JJ.C.A.], thought it was wasteful exercise even to advert to the exhibit B, the certificate of occupancy granted by the civilian government of Oyo State over the same land.

Uncontradicted is the averment and evidence of the respondent that his father was granted the land in 1936. He called D.W.3 and D.W.4 to testify as to this averment in his statement of defence. D.W.3 Ezekiel Adejuyigbe Adesoyin, is of Arikese/Ahere quarters and of Ogboni descent where the land is situated. D.W.4 is a living witness of the grant in 1936. Respondent’s father took possession, developed the land by building a structure on it which he used for his business of produce buying. He died in 1947 and the respondent inherited it. The building on it fell into disuse and virtually in ruins. The respondent, none the less made his possession manifest by constructing drainages round the land. The land has buildings in the neighbourhood as in exhibit A. Unless the land is acquired compulsorily in accordance with the provisions of the act e.g. for overriding public interest, or for public purpose by the local government or state government. See S.28(1), (2) (3) and (4) whereby compensation must be paid, nobody shall be deprived of his land. The state has no right to dispossess a person of his property lawfully acquired without reason and that reason shall be in the public interest with adequate provisions made in the enabling statute to pay compensation that is just. So has the land use act done. The respondent never received any revocation notice, and no gazette or letter divested him of his right, customary right of occupancy which he was deemed to have. The purported right of occupancy issued by the Governor of Oyo State in 1983 is void and all the appellant has in his hand is a piece of paper having no value.

I see no merit in this appeal except to reiterate that the trial Judge erred in law by not following the time honoured principle of our law and practice of meticulously looking at the pleadings. He placed on the respondent a burden not in law his; it is for the plaintiff to prove his case and not rely on the weakness of the defence. In the instant case, the defence is strong, clear, unassailed and the supporting evidence rendered it uncontradicted. I dismiss this appeal with N500.00 costs.The plaintiff/appellant took out a writ claiming before the High Court of Oyo State, sitting at Ilesha in Ilesha Judicial Division,the sum of N25,000.00 from the defendant/respondent for the act of trespass on a piece of land at Osu by the defendant. He also asked for perpetual injunction against the defendant, his servants, agents, privies or anyone claiming through the defendant from any further act of trespass on the land.