Inspector Kayode V. Alhaji J. A. Odutola (2001)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

In the High Court holden at Ibadan Coram Ademakinwa, J., the appellant who was defendant, was sued by the respondent who was then the plaintiff, claiming from him (appellant) the following reliefs:

“(a) The sum of N1,200 being special and general damages in respect of continuing trespass committed by the defendant on the plaintiff land situate at Molete, Ibadan sometime in 1964.

Injunction restraining the defendant, his agents, servants or assigns from continuance of the aforesaid trespass.”

After pleadings were ordered, filed and exchanged by the parties – the respondent having earlier sought leave which was granted for him to amend his statement of claim – case went to trial. The respondent gave evidence and called only one witness in support of his case while the appellant thereafter testified in support of his case and called five witnesses. Learned Counsel for either side addressed the court and in a considered judgment delivered on 16th July, 1981, the learned trial Judge (per Ademakinwa, J.) dismissed the respondent’s claims in their entirety.

Briefly stated, the facts of the respondent’s case before the trial High Court were predicated on a root of title from IKUOLA Family, Thadan and for the purpose of tracing his source of interest, he equally relied on a deed of conveyance dated 28th day of May, 1946 registered as No.49 at page 49 in Volume 327 of the Land Registry in Lagos. He equally relied on the deed of conveyance dated the 16th day of August, 1949 and registered as No. 50 at page 50 in Volume 2 of the Lands Registry, Ibadan as well as possession vide paragraphs 5, 11 and 14 of the statement of claim. The respondent further relied on some judgments he got against some earlier trespassers on the land and the deed of 15th December, 1952, registered as No.26 at page 26 in Volume 50 of the Lands Registry, Ibadan.

The appellant on the other hand, relied on a grant under native law and custom from the representatives of the same IKUOLA Family in 1957 and a subsequently executed deed of conveyance dated 29th day of June, 1964 registered as No.23 in Volume 759 of the Lands Registry’s Office, Ibadan.

By paragraph 7 of his amended statement of defence, the appellant admitted that the respondent had earlier sued him in Suit No. III 83/64. He finally relied on the equitable defences of laches, acquiescence, stale claim and adverse possession.

The learned trial Judge then considered the case of each party and came to the conclusion that although the appellant proved his root of title yet the defences of laches, acquiescence, stale claim and adverse possession robbed him of his title as the evidence of laches etc put up by him was not contradicted, controverted or challenged by the respondent. Hence, the trial court dismissed the Respondent’s claim when it held in the penultimate paragraph of its judgment thus:

“In my view there is sufficient evidence of acquiescence and laches in this case to warrant the restraining of the plaintiff from exercising his legal right in respect of the land in dispute. See Morayo v. Okiade (1940) 15 NLR 131.

In the circumstances, the plaintiffs claim fails and it is accordingly dismissed …

Earlier on, the learned trial Judge had firmly held as follows:

“In the present case, there is evidence which I accept that the defendant had been on the land in dispute since 1964. I am also convinced that the defendant had completed his building by 1964 and people have already been living there. For the defendant to have put a three storey building on the land in dispute without the plaintiff knowing seems to me to be quite incredible. It is even significant that after being non-suited, according to the evidence adduced in 1973, the plaintiff still waited another four years till 1977 before instituting the present action. In the meantime, the defendant had under the mistaken belief that the plaintiff was no longer interested in pursuing the action committed further funds in extending his building on the land. One would have expected that having been in court for 9 years only to be non-suited, the plaintiff would have acted more timely in commencing the present action:’

Aggrieved by this decision, the respondent appealed to the Court of Appeal sitting in Ibadan (hereinafter in the rest of this judgment referred to as the court below). In a unanimous decision, that court (per Okunola, J.C.A. concurred in by Mukhtar and Dalhatu Adamu, JJ.C.A) held, allowing the appeal on 16th June, 1997, inter alia, as follows: