Alhaji Oyebanji & Ors V. Iyabo Afusat Lawanson & Ors (2003)

LawGlobal-Hub Lead Judgment Report

FRANCIS FEDODE TABAI, J.C.A.

The claim of the plaintiffs who are respondents herein against the defendants who are appellants herein was for:
“(a) N10,000.00 damages for trespass being presently committed by the defendants on the property of Bamidele Ayinla Lawanson (deceased), the father of the plaintiffs lying and being at Orita Bashorun Abas Road, Ibadan covered by deed of conveyance registered as 50/50/35 of the Lands Registry, Ibadan.
(b) Perpetual injunction restraining the defendants by themselves, their agents, servants and privies from committing further trespass on the land.”

Pleadings were filed and exchanged. The actual trial involved the testimony of witnesses for both parties. There were a number of documentary evidence as well. At the close of evidence counsel for the parties addressed the court.1

On the 14/7/99, the learned trial Judge entered judgment for the plaintiffs/respondents. Aggrieved by the decision, the appellants filed this appeal. Altogether, nine grounds of appeal were filed. And before this court, the parties through their counsel filed and exchanged their briefs of argument. The appellants’ brief was prepared by R. A. Ogunwole and same was filed on the 15/10/01. The respondents’ brief was prepared by J. O. A. Ajakaiye and it was filed on the 29/11/2001.

Five issues were raised for determination by counsel for both parties. The issues are:
“1.Whether the court has jurisdiction to entertain the action having regard to (i) section 7(2) of the Limitation Law, Cap. 64, Laws of Western Region of Nigeria, 1959 and (ii) section 4(1)(a) of the Limitation Law, Cap. 64, Laws of Oyo State of Nigeria, 1978.

2.Whether the respondents have discharged the onus of proof that they are entitled to the land in dispute by production of deed of conveyance exhibit B when they have failed to prove its due execution.

3.Whether the respondents have proved better title to the land in dispute and to entitle them to damages for trespass when the respondents’ and appellants’ plans exhibits A and E respectively showed that the appellants were in effective possession of the land in dispute.

4.Whether the learned trial Judge was right in rejecting the appellants’ evidence that they are rightful owners of the land in dispute for failure to obtain receipts/conveyance from their respective vendors when the appellants were relying on purchase under native law and custom.

5.Whether the learned trial Judge was right in relying on exhibits C – C3 when their due execution by Olugbode family has not been proved.
Arguments:

On the first issue of jurisdiction, the substance of the arguments of the appellants is that, since the reliefs in the writ of summons and the averments in paragraphs 17 and 18 of the statement of claim and paragraph 5 of the plaintiffs’ reply to the statement of defence all stated the trespass to have been committed on or about 1984 and this action was filed on the 3/4/91 more than 7 years after the cause of action arose, the action is statute-barred, it having been brought outside the limitation period of six years as stipulated in section 4(1)(a) of the Limitation Law, Cap. 64 of the Laws of Oyo State, 1978. It was contended that the provision is mandatory and since it is a matter of jurisdiction cannot, by consent of the parties, be waived.

The appellants relied on Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122. With respect to the principle of continuing trespass, it was submitted that a defence properly raised and sustained can put a bar or defeat the right of the owner of such land or to complain of the continuing trespass. For this submission, they relied on Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) 38 at 61. Appellants referred again to sections 6(2) and 7(2) of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 and contended that the action was statute barred having been filed after 12 years of the existence of the cause of action.

With respect to the 2nd and 5th issues the appellants referred to paragraph 20 of the statement of defence and the assertion to the effect that the purported conveyance to the respondents’ father Lawanson – was void, same not having been executed by the head and principal members of the 9 branches of the said family and the respondents’ reply which failed to deny the said paragraph 20 and submitted that the failure to so deny was an admission.

He regard the evidence, appellants referred to the evidence of the 1st plaintiff who did not know who was head of the Olugbode family between 1959 and 1961, the fact that no member of the said Olugbode family was called and the fact that the vendors of exhibit B did not include the head of principal members of the family and the evidence of the DW2 and DW3 from the said Olugbode family and contended that execution of exhibit B was not proved. It was submitted, therefore, that the finding of the learned trial Judge about Busari Agboade Olugbode being the Mogaji of the Olugbode family when exhibit B was made was wrong and the case ought to have been dismissed.

On issues 3 and 4, it was contended that while the appellants’ possession of the land in dispute is clearly shown in both exhibits A and E, that the respondents’ are not shown even on their own plan. It was pointed out specifically that the house built by Lawanson or its location ought to have been shown in their plan exhibit A. It was further argued that the appellants proved valid sale of the land in dispute in 1956 under native law and custom. The appellants contended that since they proved exclusive possession of the land in dispute, there was nothing like concurrent possession. It was urged that the appeal be allowed.