Alhaji Raji Oduola & Ors V. Ibadan City Council & Anor (1978)

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FATAYI-WILLIAMS, J.S.C.

The plaintiffs (now appellants) are the descendants of one Balogun Ibikunle of Ayeye Quarters in Ibadan in Oyo State. The first defendant is the local authority for Ibadan. The second defendants are a limited liability company registered in Nigeria. They carry on business on the land in dispute which is situated at Lebanon Street and Onireke Street in Ibadan.

The land in dispute originally belonged to the late Balogun Ibikunle. It is marked red with letter G in it on plan No. CK22/66 of 22nd 1966.

In 1902, that is about 76 years ago, one Fajinmi who then reigned as the Bale (now designated as the Olubadan) of Ibadan asked the descendants of the late Balogun Ibikunle for a large parcel of land. The land was to be used as a market site by strangers who came to Ibadan for trading and other commercial purposes. At that time, one Oyedeji, a son of Balogun Ibikunle and the father of the second plaintiff, was the head of the Ibikunle family. He was also the Chief Areago to Bale Fajinmi himself. Oyedeji agreed to the request of Bale Fajinmi. He thereupon earmarked some of the lands of the late Bale Ibikunle for the purpose of establishing the said market and commercial centre for strangers in Ibadan. The site thus earmarked included the land now in dispute which is edged red on the plan No. JOL/122 attached to the deed of lease (Exhibit F) registered as No. 11 at page 11 in Volume 87 in the Lands Registry at Ibadan. Oyedeji requested and Bale Fajinmi agreed that tolls would be paid to the Ibikunle family by persons who would erect market stalls on the site but no toll was, in fact, paid by any of the users of the site.

From 1903 to 1933, the Ibadan Native Authority which is the predecessor of the 1st defendant, used the particular land in dispute as its Treasury Office. It was later used as its Electricity Undertaking Office from 1938 to 1941. There was no objection to the user although Alhaji Oduola (1st plaintiff) had been passing and repassing the land in dispute for over 50 years since it was earmarked for the market site. Be that as it may, the plaintiffs, in 1949, commenced proceedings in Suit No. I/120/1949 against the predecessors-in-title of the 1st defendant. In these proceedings, they claimed declaration of title to a large piece of land which included the land now in dispute. The proceedings originally started in the Lands court (Native Court) in Ibadan but was later transferred to the Supreme Court (now High Court). For some inexplicable reason, the hearing was protracted and judgment was not delivered until 2nd April, 1958, when the learned trial Judge, in a reserved judgment, observed as follows:-

“The plaintiffs have satisfied me that in the distant past, they owned all the land shown in the plan Exhibit ‘A’. They admit in their own evidence that, at the request of the defendant they had given at different times portions of this land to the defendant in accordance with their duty under Native Law and Custom, the defendant having promised them certain benefits. I am satisfied that those benefits have not been accruing to them. I am also satisfied that that portion of the land, which is hard to determine, has reverted back to the plaintiff not by operation of law but by some reasons not made clear in evidence; also portions have by consent or acquiescence of the plaintiffs, been given away to non-natives of Ibadan without payments of rents under the speed leases (which only re-establish the purposes of the original acquisition by the defendant).

Certain portions have also found their way to the hands of natives of Ibadan by sale or otherwise. I find it difficult to determine which is which. It will, however, not be difficult to determine if a plan is made out for the purpose although as I stated earlier, the facts are in the possession of the defendant and not the plaintiffs which makes the difficult for the plaintiffs. It is, however, in the interest of justice that the defendants should undertake to make a detailed map or plan showing each plot and the present holder or lessor. With good will on either side the whole matter could easily be settled.”

Following this observation, the learned trial Judge non-suited the plaintiffs after stating as follows:-

“As stated earlier, the plaintiffs themselves are still exercising acts of ownership on a portion of the land they now claim. The extent of that portion is not easy to demarcate and has not been demarcated on the plan, but the fact is in evidence as well as the confused state of other portions. Also, owing to the fact that the plaintiffs themselves have granted the land to the defendant, it is difficult to expect a declaration of ownership to the plan Exhibit ‘A’. They cannot have what they themselves say they had given away. They may, however, be entitled to a declaration in respect of what has reverted to them if that extent of land can be determined, and also declaration as to reversionary rights. What I think they are entitled to from the defendant may possibly be sought in another form of action and not in an action for a wholesale declaration of all the land they had given away.

I do not think their action in the present form is appropriate or if it is, evidence is insufficient to grant a declaration to the whole land claimed, or to portions not specifically carved out.”

(The underlining is ours). There was no appeal against this judgment.

Meanwhile, although the proceedings to which we have referred to above was still pending in the High Court at Ibadan at the time, the 1st defendant in the present case (who was the sole defendant in those proceedings) granted a lease of the land now in dispute in the present case, and which, as we have pointed out earlier, is a portion of the land in dispute in the earlier case (the 1949 case), to the 2nd defendant on 23rd May, 1954, by deed of lease (Exhibit G). The lease in Exhibit G is for a term of 99 years. In other words, the land now in dispute had been transferred to third parties before the judgment of the High Court in 1958.

Notwithstanding what the learned trial Judge said about the claim of the plaintiffs to the larger area of land (which includes the area now in dispute) in the 1949 case, and the leasing of part of the land to the 2nd defendant in 1954, the plaintiffs waited for another 11 years before commencing the present proceedings against the same defendant as in the 1949 case. Admittedly, the lessee in the deed of lease (Exhibit G) was joined as second defendant. Their claims read:-

“The plaintiffs’ claim against the defendants jointly and severally is for: