Adetutu Adesanya V. Alhaji S. D. Aderonmu & Ors. (2000)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

The proceedings leading to this appeal were first initiated on the 14th day of February, 1984 in the High Court of Justice of Oyo State of Nigeria, holden at Ibadan. In that court, the plaintiff, Chief S. D. Akere, now deceased, instituted an action against the defendant claiming as follows:-

“(a) A declaration of title to a Customary Right of Occupancy over all that piece or parcel of farmland situated, lying and being at Apete Village lbadan- a place about 15 kilometres to Mapo and within the rural area of Akinyele Local Government Council.

(b) Two Thousand Naira (N2,000) general damages for continuing trespass committed and still being committed by the defendant on the said land.

(c) An order of injunction restraining the defendant, her servants, agents or any person claiming through or under her from committing further acts of trespass on the said land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses.

The plaintiff’s case as pleaded and testified to is based on sale under customary law. He purchased the land in dispute some time in 1971 from the Ayoade family through one Aderinola Ejide Ayoade, the then oldest member of the Ayoade family. Her ancestor, Akintunde was said to have acquired the land by first settlement after the Kiriji war.

Akintunde was survived by three children, namely, Ayoade, Iwintunde and Igbinwale. After the death of Akintunde, Ayoade as his eldest child succeeded him as the head of the Akintunde family and made maximum use of the land in dispute. Iwintunde and Igbinwale predeceased Ayoade without any child surviving either of them. Thus, the land became the absolute property of Ayoade. The said Ayoade on her death, was survived by only one child, Aderinola Ejide, who accordingly inherited the land in dispute but later sold it under customary law to the plaintiff. There was also the evidence of P.W4, Dauda Bello. He bought part of the land originally settled upon by Akintunde from one Lawani Lanlokun who was said to have purchased it from Ayoade. Aderinola Ejide died before the institution of this action. However, her son, Raimi Aiki, who testified as P.W.6 in the suit confirmed that his mother, Aderinola Ejide, sold part of the land originally settled upon by Akintunde and comprising the land in dispute to the plaintiff. P. W.6 explained that he joined in the execution of the agreement, Exhibit A, described as a purchase receipt in respect of this sale of the land in dispute by his mother, Aderinola Ejide to the plaintiff. The plaintiff bought the land in dispute for the sum of #1,250.00 and had since been in peaceable possession thereof through his caretaker, P.W.5. Some time in 1983, the defendant without the leave and/or licence of the plaintiff invaded the land in dispute and bulldozed it. She further erected a wall fence thereon and dug a foundation on the land preparatory to the erection of a building thereon. Despite repeated warnings, the defendant continued her acts of trespass on the land hence this action.

The defendant, for her part, claimed that she purchased the land in dispute some time in 1977 from the Akinbode family whose ancestor was said to have settled on the land before the Kiriji war. The traditional history of the land was related by D.W.1, Busari Adekunle, who traced how ownership of the land in dispute descended by inheritance from Akinbode down the line to one Lawani Ayoade. The defendant bought the land under customary law for the sum of N3,700.00 from Lawani Ayoade who was then the Mogaji and head of the Akinbode family. She duly paid the said purchase price and was issued with a receipt. She also went into possession of the land and dug a foundation preparatory to the erection of a building thereon. She had since applied for and was granted a certificate of statutory right of occupancy in respect of the land in dispute by the Governor of Oyo State.

At the conclusion of hearing, the learned trial Judge, Ademakinwa, J. after a meticulous review of the entire evidence on the 28th day of January, 1988 held as follows: –

“As things are, it is my view that the plaintiff’s claims fail in their entirety, but I am not convinced that the proper order to make in the circumstances wherein the plaintiff has substantially established his interest in the land but has only failed to properly identify the boundaries thereof is one of dismissal. I believe that an order of non-suit will be appropriate in the circumstances, but I would like to hear learned counsel on both sides in this regard.”

Having taken the addresses of counsel on the appropriate order to make, the learned trial Judge concluded thus:-

“I am convinced that an order of non-suit would be more appropriate in the circumstances so as not to permanently deprive the plaintiff of his established interest in the whole area claimed. The plaintiff is accordingly hereby non-suited in this case.”

It is evident that the learned trial Judge was obliged to non-suit the plaintiff for the sole reason that he considered the boundaries of the land in dispute not established. Said he:-