Mrs. Jarin Adegbite V. Chief M. K. Ogunfaolu & Anor (1990)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

By an amended writ of summons taken out in the High Court of Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiff claimed against the defendants as follows:-

“1. The plaintiffs claim is AGAINST THE DEFENDANTS JOINTLY and severally is for a sum of N5,OOO.00 (five thousand naira) being special and general damages for trespass committed by the defendants when they unlawfully entered on the plaintiffs land lying and situated at Plot 38, Parakoyi Layout, Molete, Ibadan, and damaged the plaintiff’s foundation laid thereon.

2. An injunction restraining the defendants from committing further acts of trespass on the said land.”

The defendants denied the plaintiffs claim. Pleadings were therefore ordered and exchanged.

The plaintiff’s case as presented in her pleadings and evidence can be stated thus:-

The plaintiff bought the land in dispute described as plot 38, Parakoyi Layout, Molete, Ibadan from W.B. Parakoyi on 1st June, 1955 for 320.00. The sale was witnessed in writing as per Exhibit A which was dated 1/6/55. Later, by a deed of conveyance dated 20/7/55 Exhibit B, W.B. Parakoyi described in Exhibit B as the vendor conveyed to the plaintiff as purchaser, the said land. Exhibit B was registered as no.17 at page 17 in volume 115 in the lands registry at Ibadan. The plan of the assigned land was attached to Exhibit B. In 1962 the plaintiff put up a foundation on the land which was built with stone. From June, 1955 to October, 1978 the plaintiff was in undisturbed possession and control of the land when the defendants, by themselves or through their agents trespassed into the said land and demolished the foundation stone built thereon by the plaintiff.

As a result of these acts of trespass, the plaintiff complained against the defendants to the police but to no avail. In March, 1979 the plaintiff through her solicitor wrote a letter of warning (Exhibit C) to the defendants; a copy of which was served on the first defendant and another copy pasted on the wall the 2nd defendant was unlawfully constructing on the disputed land; since she could not be seen or traced to be served with the same.

Despite Exhibit C, the defendants continued with their acts of trespass unabated, hence this action.

On their part, the defendants’ case is as follows:-

The land in dispute was formerly a part of a larger parcel of land owned by the Wonuola family which sold and conveyed same to the 1st defendant as per the deed of conveyance Exhibit E. The first defendant also sold the land in Exhibit E to the 2nd defendant as a result of which he executed a deed of conveyance Exhibit F in favour of the 2nd defendant. This was in 1975 and 1977 respectively. Second defendant entered the disputed land and by January 1979, she had completed the first floor of the house she was building and moved into it. Both the 1st and the 2nd defendants denied either by themselves or through any other person or persons demolishing the plaintiffs foundation. They also denied ever going or being invited to any police station in connection with the land in dispute much less to be warned by any police officer.

The case proceeded to trial at the end of which the learned trial Judge made the following findings:-

1. “Contrary to the strenuous claim made for defence [that the area was virgin forest accessible only by a bush path and that there was no existing roads at the time the Wonuola family sold the land in dispute to the 1st defendant], that there were existing roads on the land in dispute.”
2. “That the identity of the land in dispute is not really in dispute.”
3. “That there had been a tampering with the survey beacons buried on the land between the year 1955 when the plan in Exhibit 8 was drawn and the years 1975 and 1977 when the plan Exhibits E and F respectively were drawn.”
4. “Again within the area verged red on the plan in Exhibit ‘8’ there is no rectangular structure marked “U/C.” This inscription first came into existence in Exhibit ‘E’ in 1975. I am prepared to accept the 5th P.W’s evidence, therefore, that this shows some development had taken place. And conjoined with the alteration in survey pillars which, upon the evidence, I have found to have taken place, and the evidence of the plaintiff and her witnesses, I find as a fact that the plaintiff’s building under construction (having only reached the foundation level) was already in existence both at the time the sale of the land was made by Wonuola family to the 1st defendant in Exhibit ‘E’ and at the time the 1st defendant sold the land to the 2nd defendant in Exhibit ‘F’.”

“I accept the evidence of the plaintiff and her witnesses that she laid a foundation on the land in 1962 but that that foundation was demolished. I am unable to accept the evidence tendered for her, however, that it was the 1st or the 2nd defendants, or both defendants who demolished the said foundation . The claim for special damages brought against the 1st and 2nd defendants for demolition of the foundation must therefore fail.

Be that as it may, there was considerable evidence placed before me to establish that both the 1st and the 2nd defendants trespassed upon the land in 1975 and 1977 respectively while it was in the peaceful possession of the plaintiff. This was when they went to the land after it had been sold to them. That much they admitted in their evidence before me. It was after the entry of the 1st defendant on the land that the original survey pillars disappeared and new ones were substituted therefore …. The disappearance of the plaintiff’s foundation within the rectangular area shown verged red on the plan attached to Exhibit ‘E’ and ‘F’ after the sale of the land to the 2nd defendant by the 1st defendant means that the 2nd defendant had knowledge of the existence of somebody being already in possession, and therefore building her own house on the land means a disturbance of the plaintiff’s possession.”

“The vendor to the plaintiff is however said to be a son of Wonuola. He sold the land to the plaintiff in 1955, and upwards twenty years, the plaintiff was and remained in possession and erected a foundation thereon seven years after the purchase. Throughout that period of 20 years, she was not disturbed until 1975 when her land was invaded and her survey pillars were uprooted and substituted with others.”