Ezekiel Oladimeji Ogundipe V Job Awe & Ors (1988)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

In this appeal, the appellant, as plaintiff on behalf of himself and as representative of Omo Community, Ilesha Division, instituted an action against the respondents claiming as follows:

“(i) Declaration of title under Native Law and Custom to a piece or parcel of land situate, lying and being at Omo Town in Ilesha North District Council area.

(ii) N500.00 (Five Hundred Naira) being general damages for trespass committed by the Defendants on the Plaintiffs’ said land.

(iii) Injunction restraining the defendants their agents and servants from further trespassing on the said land.

Briefly stated, the appellants’ claim, as pleaded and deposed to in evidence, was that members of his community first settled on the land in dispute several years ago. They built their dwelling houses on the land, established their shrines there and erected an old town wall in order to demarcate their settlement from that of the defendants. It was his case that having lived in the place undisturbed for very many years, his community voluntarily decided to move to a new location called New Omo about 21/2 miles from the place in dispute which is called the Old Omo. He claimed, however that the place was never abandoned as the members of his community still retained its possession for agricultural purposes.

The respondents’ case, on the other hand, was that they were the original owners of the land in dispute and that the appellants’ people were only permitted to settle there as their customary tenants together with Ejigan people who had earlier been placed on the land by the Akinla of Erin Ijesha, the 3rd respondent’s ancestor.

At the trial both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the case, the learned trial judge, Babalakin J. (as he then was) reviewed the totality of the evidence adduced and held as follows:

“I have carefully considered the evidence adduced in this case and the address by Counsel for both sides to this dispute and on my evaluation of the evidence I find the following facts for the reasons given.

The evidence in this case reveals that both the plaintiff’s community and defendants’ community are in one form of possession of the land in dispute or the other, and I so find.

The result is that the plaintiffs are not in exclusive possession of the land in dispute and are therefore not entitled to a declaration of title to the land in dispute based on acts of ownership numerous and positive enough to warrant the inference that they are the owners of the land in dispute. See the case of Ekpo v. Ita 11 NLR 68 and Olujebu of Ijebu v. Osho the Eleda of Eda (1972) 1 All N.L.R. 93 at 98.

Thereafter the learned trial judge considered the traditional evidence adduced by both parties and concluded that he preferred the defendants’ evidence to that of the plaintiff, basing his decision principally on the evidence of the 3rd defendant which he found ‘straightforward and consistent’. He therefore concluded that the plaintiff had not established his claims which he dismissed in their entirety.

Being dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal on a number of grounds and that Court, having given very careful consideration to all the complaints in his grounds of appeal, in a unanimous judgment delivered by Dosumu, J.C.A. on the 27th day of June, 1983, dismissed the appeal and confirmed the judgment of the trial court.

Still dissatisfied, the appellant has finally appealed to the Supreme Court on the following two grounds: