Tiamiyu Adewole V Joseph Popoola Dada (2003)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

In the High Court of Justice holden at Ibadan the plaintiff claimed against the defendant as follows –

“1. N1,000.00 representing damages for trespass committed and still being committed by the defendant by himself and through his agents on the plaintiff’s land situate, lying and being at Idi-Ogun Awotan via 1badan.

2. Injunction restraining the defendant by himself, his agents, servants and or privies or otherwise howsoever from committing further acts of trespass on the said land.”

The pleadings ordered were duly filed and exchanged between the parties. These were later amended by leave of court. At the hearing both the plaintiff and the defendant gave evidence and called witnesses to support their respective claims.

Briefly stated the plaintiff’s case is that the land in dispute forms part of a large tract of land originally belonging to one Fijabi by settlement. In his life time, Fijabi granted absolutely a portion of his land to Alade, the great grand-father of the plaintiff. Alade gave birth to two children, Dada (male) and Iyabode (female). Iyabode died without issue and Dada inherited Alade’s landed property. The grant devolved on Dada’s children including the plaintiff’s father who exercised various acts of ownership and possession on the land right from the grant including for example a grant made by Dada to one Fagbemi, the father of the defendant for building and farming purposes. The area granted to Fagbemi by Dada is verged yellow in the plaintiff’s plan exhibit A in the proceedings. The defendant had built houses on the area granted to his father and the plaintiff is not claiming that portion of the land edged yellow.

On the other hand the defendant claimed that the land in dispute did not at any time form part of the land originally owned by Fijabi. He said one Abodunde Ajagbe Igo, his grand-father acquired same by settlement and that the property had devolved on him by inheritance. He claimed that it was Abodunde Ajagbe who made an allotment of part of the land in dispute to Dada, plaintiff’s grandfather and not to Alade, plaintiff’s great grand-father, and that it was on the basis of payment of Ishakole or tribute by Dada.

At the conclusion of evidence counsel on both sides addressed the court. The learned trial Judge in a reserved judgment carefully considered the facts of the case and the issues raised before him and found for the plaintiff when he concluded his judgment as follows-

“Having accepted the plaintiff’s case – the grant to his ancestor, I hold that the only portion granted by his grand-father to Fagbemi was that area edged yellow to which the defendant was called and on which the defendant has built three houses. The defendant, having been found on other area of the land in dispute as testified truthfully in my view by 7th plaintiff witness, has committed acts of trespass for which he should pay damages, assessed at N200.00 (two hundred Naira). As the leg of trespass of the plaintiff’s claim has succeeded, an order of injunction should follow as the plaintiff is not prepared on the evidence before me to entertain the defendant’s presence on the land in dispute, as distinguished from the area conceded to the defendant’s family. See Obanor v. Obanor (1976) 1 All NLR 39 at 43; (1976) 2 S.C.1.

In conclusion, the defendant, his agents, servants and or privies or otherwise howsoever are restrained from committing further acts of trespass on the land in dispute.”

Dissatisfied with the judgment of trial High Court, the defendant appealed to the Court of Appeal Holden at Ibadan. The following issues were formulated for determination in that court-

“1. Whether the plaintiff proved title to the land in dispute by grant to Alade by Fijabi by credible evidence of the plaintiff’s 3rd and 5th witnesses.

2. Whether on the evidence before the learned trial Judge the defendant committed and was still committing acts of trespass on the land in dispute by himself and through his agents.
3. Whether the plaintiff was entitled to the order of injunction against the defendant in respect of the land in dispute.”

The Court of Appeal (Coram Ogundere, Ogwuegbu and Salami, JJCA), carefully considered each and everyone of the above issues and found against the defendant on each of them. Salami, J.C.A. in the lead judgment (which was concurred in by the other Justices) concluded as follows –

“All the grounds of appeal canvassed on behalf of the appellant (meaning defendant) fail and are dismissed. Accordingly the appeal fails and it is dismissed by me. The respondent (meaning plaintiff) is entitled to the costs of this appeal which I assess at N300.00.”

Still dissatisfied with the judgment of the Court of Appeal, the defendant has now further appealed to this court. In obedience to the Rules of Court, counsel on both sides have filed and exchanged their briefs of argument in the appeal. These were adopted and relied upon at the hearing.