Mutual Aid Society Ltd V Akerele (1965)

LawGlobal-Hub Lead Judgment Report

PER IDIGBE JSC

This suit began in the Ijebu Ife Native Court and at last was heard by A. Desalu, Esq., a senior magistrate, at Ijebu-Ode. Samuel Odufale was suing both for himself and a number of others living at Araromi near Ogbere in the Ijebu-Ode district. They put in a plan and they alleged that the Bale of Ogbere had granted to each at one time or another some land, so that each of them has his piece to farm and his house to live in; and that the Bale also gave some land to the defendant S. R. Kukoyi; that the Forestry Department later acquired an area, which included the pieces of land farmed by the parties, but reserved to them the right to farm on what the Bale of Ogbere and his people had granted; that later both plaintiffs and defendant asked the Forestry Department for more land, and were granted what is shown as Thick Bush on the plan; but about four years ago, viz. about 1955, the defendant surveyed and erected his pillars along the boundary marked out for the farmers by the Forestry Department and began to claim the whole area edged red as his own property, and the dispute related to the whole area except for the portions edged yellow and green; and so the plaintiffs claimed as follows:

“(1) Declaration of title in respect of those areas allotted to them by the Bale of Ogbere and his people.

(2) Declaration that the remaining area marked “Thick Bush” is the common property of the plaintiffs and defendant.

(3) £50, being damages for trespass committed on the land by the defendant.

(4) Injunction to restrain the defendant, his servants and agents from committing further acts of trespass on the land.”

The defendant also put in a plan and called the land in dispute Araromi Estate; he alleged that it was granted to him absolutely on December 17, 1914 by the Bale of Ogbere and he went into possession; that in 1914 he erected pillars at boundary points; that he settled on the land and erected buildings. And now one may skip some part of the Defence and go to para. 12 on the Forest Reserve: the defendant alleges that in 1918 the Forestry Department acquired some land near the land in dispute, but in demarcating the reserve they included the land in dispute in the forest reserve; then he complained about it after he got judgment in suit No. 45/28 and the boundaries were re-demarcated and the land in dispute was excluded from the reserve; and that they made a plan in 1941 showing the land in dispute in relation to the Reserve. And here we may halt, as the dominant point is whether the land in dispute between the parties is within the Forest Reserve.

Amos Ogunkoya, the Forest Ranger in charge, testified that Government acquired the area in 1918 and cut an enclave for the farmers who were there to farm. He put in list exh. B, which includes Samuel Odufale (Bale) and S. R. Kukoyi and many others as having farms within the Araromi Farming Area, Area J3. The witness also tendered the Supplement to the Western Region Gazette for December, 1951 to December, 1952 and pointed to the Gazette of 21 February, 1952 which at B43 has the Omo Government Forest Reserve (Amendment) Order, 1952, for Item 19 as showing the grant of the enclave to the Community of Araromi as exh. C and he said that the plaintiff and the defendant are among the persons referred to in C (viz. as members of the community at Araromi II). Under cross-examination the Ranger said that in 1949 the Government added more land and then demarcated the land as an enclave, which he said in answer to the trial judge was shown pink in the plan A.

As against that we have the evidence of Michael Adesola Kukoyi, a licensed surveyor, who made plan D for his father, the defendant. This surveyor admitted that plan A and plan D are almost identical, but he said the area was not Forest Reserve; still he agreed that C (the Gazette) described plan A. There was no point in his saying in re-examination that plan A and plan D showed the Forest Reserve outside the land in dispute. We are in no doubt that the parties are quarrelling about land the rights in which are described in the Gazette in Item 19 thus:

“To the community at Araromi II the right to reside in and farm an area of approximately two and a half square miles of land in the south western part of the reserve and bounded as follows:- (etc.).

And if that is so, both the learned counsel agree that the rights are’ those described in the Gazette and no more; and as that is so, it is useless for anyone to claim anything more.Now we pass to the judgment of the magistrate, which winds up with this decision:

“It is adjudged that judgment be entered on the claim for the plaintiff for (1) a Declaration of title of all the area allotted to them by the Bale of Ogbere and his people.

(2) A Declaration that the remaining area marked “Thick Bush” in Exhibit A is the common property of the plaintiffs and the defendant.

(3) £I0 damages for trespass committed by the defendant. (4) An Injunction restricting the defendant his servants and agents from committing further acts of trespass on the plaintiffs’ land. The cost of this action is assessed at 400 guineas. it is ordered that the defendant do pay the said sum of £10 damages and 400 guineas costs to the Registrar of this Court on or before the end of October, 1961.”

As regards the declaration: there is no “title” in the sense of being able to deal with the land or any portion of it as property: see section 18 of the Forestry Ordinance, cap. 75 in the 1948 Laws; the declaration will have to be varied to suit the Gazette exh. C Item 19. And that applies equally to part “(2)” of the decision.

As regards part “(3)” of the decision: Mr. Adekunle has objected that there cannot be an award of £10 damages for trespass to all the plaintiffs; that each plaintiff ought to have shown that the defendant had trespassed on his individual land and that he had suffered certain damage, but that all they complained about was that the defendant had erected pillars. We think the plaintiffs have a right to vindicate the rights preserved by the Gazette to the community, and, if he does not remove his pillars within a month, to destroy the pillars which the defendant has erected to appropriate to himself the land, deprive others of the rights reserved to the community to live in and farm, and turn them into his tenants. And the £10 damages may stand for the expense of obliterating these offending marks of ownership, if this becomes necessary.

As for the injunction, it will have to be made clear that it is for the purpose of preventing the defendant from doing any thing designed to claim the whole area as his. The magistrate allowed the plaintiffs 400 guineas costs, without explaining why. Apparently he thought that every plaintiff ought to have ten guineas, forgetting that they had one counsel. The major expense was the plan; the defendant’s son said it would cost one hundred to one hundred and fifty pounds. We think it would have been right to award the plaintiffs costs at two hundred guineas. It is a matter for regret that things were not put right on appeal to the High Court. We order as follows:

The appeal from the High Court of the Western Region dated 23rd May, 1962, in the appeal marked J/75A/61, is allowed to the following extent:

The magistrate’s decision of 11th July, 1961 in case IJ/26A/54 shall be replaced by the following:

(a) It is declared that the rights in the land in dispute are as laid down and limited in section 19 of the Second Schedule to the Omo Government Forest Reserve (Amendment) Order, 1952, printed at page B43 of the Supplement to Western Region of Nigeria Gazette, December 1951 to December 1952, as Western Region No. 4 of 1952 under date the 21st February, 1952, which section 19 reads as follows:-

“19. To the community at ARAROMI II the right to reside in and farm an area of approximately two and a half square miles of land in the south western part of the reserve and bounded as follows:-

Starting from a point on the western boundary of the Omo Forest Reserve marked by pillar FDA by the western boundary of the Omo Forest Reserve due north for a distance of 1 mile 2,050 feet to pillar J3.26; thence by a straight line cut on a bearing of 90 degrees for a distance of 1 mile 520 feet to pillar J3.27; thence by a straight line cut on a bearing of 124 degrees for a distance of 1,200 feet to pillar J3.28 on the path from Araromi II to Dina; thence continuing by a straight line cut on a bearing of 124 degrees for a distance of 2,800 feet to pillar J3.29 on the path from Araromi II to Olorunpodo; thence by a straight line cut on a bearing of 160 degrees for a distance of 1 mile 160 feet to pillar J3.30 on the western boundary of the Omo Forest reserve thence by the western boundary of the Omo Forest Reserve due west for a distance of 2 miles 350 feet to the starting point.”

(b) The defendant shall remove his pillars within one month, and, if he does not, the plaintiff Samuel Odufale or any other plaintiff being a member of the said community may destroy the pillars.

The defendant shall deposit ten pounds in the Magistrate’s Court at Ijebu-Ode within two months; and if Samuel Odufale or any such other plaintiff applies to be recouped for destruction of the pillars, the magistrate shall order payment of the expense out of the deposit; otherwise the magistrate, after notice to the other side, may order the deposit to be refunded.

(c) An injunction is granted in favour of the plaintiff Samuel Odufale and the other plaintiffs, members of the said community restraining the defendant, his servants and agents from erecting pillars or other marks of ownership on the land.

(d) The defendant is ordered to pay two hundred pounds as costs in the Magistrate’s Court. He shall pay this amount into the Magistrate’s Court and the magistrate will decide the person or persons who may take the money out.

No order is made on costs of appeal to the High Court or to the Supreme Court, but either side shall bear their own costs.

Other Citation: (1965) LCN/1204(SC)