Alhaji Amusa Akintola Vs Chief Salami Oyelade (1993)

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KUTIGI, J.S.C.

We allowed this appeal on the 7th day of December, 1992 after hearing counsel on both sides. We awarded costs of N1,000 to the appellant and adjourned to give our reasons for the decision today which I now do.

The plaintiff who is now the respondent claimed against the defendant/appellant as follows –

“1. Declaration that the plaintiff and his people are the persons entitled to possession and deemed to be in continued possession of all that farmland situate, lying and being at Ilofe, via Ogbomoso, Annual rental value of farmland is about N100.00.

2. N500.00 (Five hundred Naira) damages for trespass committed by the defendants their people, servants, agents and privies particularly on the 7th and 8th day of April, 1981 respectively when the defendants and their said people, servants, agents and privies unlawfully entered into the said land and started to harvest palm fruits, cut down cocoa and orange trees, destroy sprouting yams, vegetable, okro etc. belonging to the plaintiff and his people, and for continuing trespass.
3. Injunction:- to restrain the defendants, and their people, servants agents and privies from further entering into the said land to harvest palm-fruits, cut down cocoa and orange trees, and destroy sprouting yams, vegetables, okro etc. of the plaintiff and his people, and to do any other thing whatsoever on the said land.”

After the exchange of pleadings, the case proceeded for trial before Ademakinwa J. who in a reserved judgment dismissed the claims of tile plaintiff/respondent in their entirety.

The plaintiff was dissatisfied with the judgment of the trial court and so he appealed to the Court of Appeal, Ibadan where his appeal was allowed. The judgment and order for costs of the trial court were set aside and judgment entered for the plaintiff/respondent in respect of the declaration sought, N50 damages for trespass and an injuction. The plaintiff/respondent was also awarded costs of N700 and N300 respectively in the court of trial and the Court of Appeal.

Dissatisfied with the judgment of the Court of Appeal, the defendant/ appellant has now appealed to this Court.

The facts of the case can be summarised as follows. The land in dispute forms part of a large tract of farmland granted from time immemorial to appellant’s ancestor OLAMURO by one OLUGURO OLAIGBE of the Oluguro Chieftaincy family. After the Fulani wars one AKINSUWON from Ogbomosho, an ancestor of the plaintiff/respondent, approached appellant’s fore-father OTEBOLAKE, then the Elesade of Esade, for a grant of land for farming purposes. The land in dispute is part of the land consequently granted to plaintiff/respondent’s ancestor for farming subject to payment of Ishakole. As a condition of the grant appellant’s family also reserved the right to reap the fruits of the palm trees, locust bean trees and the emi trees on the land. The Ishakole originally payable was 4 loads of yams, 4 loads of dried yams (elubo) and N5.00 per annum. The Ishakole has since been reduced to a flat payment of N 10.00 per annum. The plaintiff/respondent’s people, the Ilofe people, complied with these conditions until recent times and whenever they failed to do so, the representatives of defendant/appellant’s people, the Elesade family, had taken legal actions against them. It was as a result of a boundary dispute between the Ilofe and Esade people resulting in destruction of crops planted on the land in dispute by the Ilofe people which has given birth to the present action.

In a reserved judgment the learned trial Judge after evaluating the evidence and making findings of facts on the issues raised before him dismissed plaintiffs case.

In the Court of Appeal, the respondent challenged the trial court’s decision upon the following grounds of appeal –

1. The learned trial Judge erred in law and on the facts by failing to enter judgment in favour of the plaintiff as per his Writ of Summons under the provisions of the Land Use Act, 1978.

Particulars of Error

(a) There was ample and uncontroverted evidence that the plaintiff and his people were, have been, are still in possession and occupation of the land in dispute using it for agricultural purposes not only immediately before and after the promulgation of the Land Use Act, 1978 but also from time immemorial.

(b) There was no allegation either on the pleadings, and or in the evidence before the court, of the plaintiff and his people being at any time in unlawful possession of the land in dispute.

2. The judgment is against the weight of evidence” The Court of Appeal carefully considered these grounds and allowed the appeal as explained earlier.

On behalf of the appellant in this court, eleven grounds of appeal were filed and nine issues were raised in the brief for determination. In the respondent’s brief only five issues were submitted for determination. However, before this appeal was allowed on 7th December, 1992, Mr. Kolawole Alawode learned counsel for the appellant stated before us that he was only interested in that part of the judgment of the Court of Appeal which awarded damages for trespass against the defendant/appellant. He referred to the judgment of the Court of Appeal page 161 lines 12-18 and submitted that the right of an overlord had not been abrogated by the Land Use Act, 1978. He said the right of an overlord to harvest palm fruits, locust bean trees and the like, did not cease to exist when the Land Use Act came into being; and that the Court of Appeal was wrong to have found the appellant liable in damages for trespass.