Alfa Saibu Alao V. Memudu Kure & Anor (2000) LLJR-CA

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.

This is an appeal against the judgment of Hon. Justice J.A. Ibiwoye of the Kwara State High Court of Justice sitting at Ilorin in suit No. KWS/22/91 delivered on 10th December, 1997 in which the learned trial Judge dismissed the appellant’s case.

By a writ of summons issued on 7th February 1991, the appellant claimed against the respondents as follows:

“The Plaintiff is the owner of a piece of land situated at Ile Ogunkan, Ojuekun Area, Ilorin over which the defendants trespassed by digging holes on the ground. Whereof, the plaintiff claims an order of perpetual injunction prohibiting the defendants jointly and/or severally from committing further acts of trespass over the plaintiff’s land.

The plaintiff also claims special and general damages”.

In his statement of claim which was filed on the same 7th February, 1991 the plaintiff claims as follows:

“WHEREOF the plaintiff claims jointly and/or severally against the defendants a perpetual injunction prohibiting the defendants from committing further act of trespass over the plaintiff’s land situate and lying at Ojuekun, Ilorin. The plaintiff also claims special and general damages”.

It is clear that the appellant did not specifically claim any amount as special and general damages in both the writ and the statement of claim.

The case of the appellant in his evidence is that he sued the respondents over a piece of land situate opposite Ile-Agbarere in Popo Area, Ilorin. He said that the land belonged to his ancestor – one Magaji Oju – Ekun, which land he has inherited. That, the land had passed through his great grand father one Ogelogun and later Momoh and Maliki who was Momoh’s son. That Maliki is his father i.e. appellant’s.

That while he was preparing to develop the land, he found 1st respondent also trying to develop the land too. That he reported the matter to the police who advised court action. The appellant also told the trial court that Ayuba Kure was a stranger to his father and was never given any land. That Ogelogun was not a visitor to Magaji Yerepe who was a visitor to Ogunkan. That Daodu Isale Oja is never the owner of the land.

Under cross-examination, the appellant agreed that his house, the 1st respondent’s house and the land in dispute are called Popo Igbona Area. That there are four Magaji in the area namely: Magaji Igbona, Magaji Akinlaso, Magaji Kure and Magaji Akebiore. He also agreed that the land in dispute is indeed Ile Kure. He also agreed that the 1st respondent is the present Magaji Kure. He however said that Ogunkan was the first Magaji Kure and not Magaji Mustafa Lagbaja.

That Ogelogun started their lineage and that Ogelogun was there before the arrival of Yerepe. The appellant said that it is not true that Ogelogun was handed over to Usman or that he came because he stole a ram in his village. The appellant denied that he requested for a place to mould blocks during the reign of Alhaji Ajape Sanni. However, he said that he was moulding blocks on a piece of land already at foundation level. He admitted that Alhaji Ayinla the father of 2nd Respondent owns the land. He said that it is not true that Magaji Kure gave Ogelogun the land where the appellant now lives.

On the other hand, the case of the respondents is that the land in dispute was originally owned by one Ayinla who was given the land by Kure. The 1st respondent said that the foundation of the house on the land was laid by the father of the 2nd respondent in 1974 and that the 2nd respondent inherited the land from his father. That the appellant only got permission from the late Magaji to mould blocks by the side of Ayinla’s foundation. That when the 2nd respondent tried to continue the building in 1991 the appellant instituted the action. That the appellant’s block are still by the side of the foundation. That the appellant has no land in Kure compound but that the land in dispute is in Kure compound. That the land in Kure compound was given by Daodu Isale Oja to one Mustafa Lagbaja during the reign of Oba Aliyu, the fourth Emir of Ilorin. That there is no place in Kure compound called Ogunkan. The respondents confirm that the appellant is a descendant of Ogelogun who lived at Ile Kure and was a chief who was given two rooms to live in and which rooms are still in occupation by his descendants till date.

At the conclusion of evidence and addresses of counsel, the learned trial Judge delivered his judgment in which he dismissed the appellant’s case as a result of which the appellant has appealed to this court on 12 grounds of appeal out of which 3 issues have been formulated by learned Counsel for the appellant Adebayo Adelodun, Esq. in his brief of argument filed on 14th May, 1998. The issues are as follows: