Alhaji Oseni Olaniyan & Ors V. Chief Mrs. E. T. Fatoki (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The Respondent in this appeal being the administratrix of the estate of her late husband, Chief Mr. A Fatoki, instituted suit No. HOS/33/95 at the Osun State High Court, herein-after referred to as the trial Court, against the Appellants claiming by paragraph 17 of her further, further amended Statement of Claim as follows:-

“i. The sum of N100,000 (One hundred thousand naira) being general damages for trespass committed and being committed by the Defendants, their servants, agents and/or privies when they unlawfully entered the Plaintiff’s land situate, lying and being at along Ede-Osogbo road, Ofatedo Area, Osogbo, covered by deed of conveyance dated the 13th day of March, 1975 and registered as No. 2 at page 2 in volume 1706 of the lands registry at the office in Ibadan and more particularly described in survey plan No. WP 15/72 attached to the said conveyance. The land in dispute is verged green on the composite survey plan No. OS/152/96/DS1 dated the 23/5/1996 and drawn by Adebayo A. Adeyemi, a licensed surveyor.

2. Perpetual injunction restraining the Defendants, their servants, agents and/or privies from committing further acts of trespass on the Plaintiff’s land.”

The Appellants as Defendants by Paragraph 54 of their further Statement of Defence counter-claimed against the Plaintiff /Respondent as follows:-

“(i) The sum of 57,000.00 (fifty-seven thousand naira only) as damages for trespass committed by the Plaintiff, his (sic) servants, agents or privies on 12th February 1995 on the Defendants land situate, lying and being at Alanomo area, Oshogbo-Ede Road, Ofatedo, more particularly described on survey plan No. LAST/OS/07 dated 12-2-1995 preferred by W. T. Adeniji and filed along with this Statement of Defence and Counter-Claim.

(ii) Injunction restraining the Plaintiff whether by herself, her servants, agents, privies or any of them otherwise from committing acts of trespass on the land in dispute.”

Pleadings having been filed and exchanged, the matter proceeded to trial.

The Plaintiff’s/Respondent’s case is that her late husband in 1975 acquired the land in dispute from the paramount ruler of Ede, the Timi of Ede by a deed of conveyance registered as No 2, at page 2 in volume 1706. Timi Ladosu became possessed of the land through his ancestor Timi Afinju the then Timi of Ede who initially acquired the land by conquest. Timi Afinju subsequently settled many people as his customary tenants on various parts of the entire land such as Ido-Osun Ofatedo, Awo, Iwaye Ara, Sekona Oloki and others.

It is Respondent’s further case that the then Timi of Ede, Oba Laoye won Suit NO/HOS/46/6 he commenced against Oba Bello Oyewusi, the Oludo of Ido for declaration of title to the parcel of land situate and lying on the first side, by Asungbe or Alawototan Stream, on the second side by Offa town hall along Osogbo road, on the 3rd side by Osun river, on the fourth side by Eyinwona stream The Defendant in Suit NO/HOS/46/6, Respondent also averred, was restrained by the Court which judgment was affirmed by this Court in appeal No. SC/47/1970. The land in dispute was surveyed during her husband’s life time and on his instruction by Mr. Adebayo A. Adeyemi, a licensed surveyor. The land is verged blue on plan No. OS/152/95/D52 dated 17th July, 1995. Mr Fatoki, the Respondent’s husband, exercised rights of possession and ownership on the land and on his demise, the Respondent further asserted, she continued exercising possessory and ownership rights over the same parcel of land warding off trespassers by erecting large sign boards thereon. The land is covered by the letter of administration the Respondent obtained in respect of her husband’s estate. It is verged green on the composite plan reproduced by their surveyor. In 1994, Respondent further averred, the Defendants/Appellants wrongfully entered the land, removed the ten sign boards erected on the land by the former. The Appellants continued to stay on the land inspite of repeated warnings.

In their case, the Appellants assert that the land dispute known as Ofatedo and was never owned by the Timi of Ede. The land is situate at Alawunro area and bounded on the front side by Ede-Osogbo road, at the backside by the Nigeria Railway line, on the right side by yidi, and on the left side by Alarano stream. The land is delineated in their survey plan No. LSA/OS/07 drawn by Mr. Adeniyi, verged green in a larger area of land verged red. Each of the Appellants stated that his great grandfather acquired the land in dispute through inheritance from his father or uncle who in turn inherited same from his father. Their great grandfathers on leaving Offa with Oba Adegboye Atoloye, settled in Ita Olaken area Osogbo where they were led in battle by Balogun Osungbekun to ward-off the Fulani warriors. Ita Olakan subsequently became crowded. Following an appeal by Oba Adegboye, Osungbekun allocated to Appellants ancestors the area known as Ofatedo which includes the area dispute. Oba Atoloye granted to each Bale a parcel of land from the area allotted to him by Osungbekun. Since then, their ancestors through whom their fathers and themselves have inherited, enjoyed possessory and ownership rights over the parcel of land until the plaintiff/respondent bull dozed the land and destroyed their crops, which act explains Appellants Counter-Claim.

In its well considered judgment delivered on 8th May, 1998, the trial Court found that the Plaintiff/Respondent had made out her case while the Appellants/Counter-Claimants did not. The Court declared title in favour of the former and in consequence found the Appellants liable for trespass.

Appellants’ Counter-Claim, not having been established was equally dismissed.

Aggrieved by the trial Court’s foregoing decision, the Defendants appealed to the Ibadan Division of the Court of Appeal herein-after referred to as the Court below. The Court below in its decision dated 6th May, 2003 affirmed the trial Court’s judgment.

Being dissatisfied, the Appellants have further appealed to this Court on an amended Notice of appeal containing six grounds.