Alhaji Jimoh Odutola V. Seidu Aileru & Ors (1985)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C 

The appellant herein was the plaintiff at the Ijebu Ode High Court in suit No. HCJ/12/71. In that case the appellant had sued the defendants (respondents herein) claiming the following reliefs:

“(1) Declaration that the plaintiff is entitled to possession and occupation of that piece of land situate and lying at ONDO ROAD, IJEBU-ODE.

(2) 2,600pounds being special and general damages for trespass committed by the defendants to plaintiff’s property on the land in 1970 and 1971.

(3) Injunction to restrain the defendants, their agents or servants from disturbing the plaintiff’s possession and occupation of the land.”

Pleadings were ordered and were duly filed and delivered.

Both parties to the dispute (except the 6th and 7th defendants) claimed to be descendants of one Lusenbi, a woman, who was the original owner of what would appear to be a vast area of land, of which the land in dispute forms a portion.

In the High Court the plaintiff’s case was that their ancestor, Lusenbi, allotted the area in dispute to two of her children, Tulaja and Tufeya and that Tufeya occupied the said land exclusively in his lifetime. It was also his case that before Tufeya died; he handed over the same parcel of land to his son Tunuga, who, in turn, handed it over to his daughter Tubajo, who was his mother.

As to how he acquired possession of the land in dispute, he said that in 1956, some members of the family sold a large portion of the family land to his brother Chief T.A. Odutolas, which transaction led to a dispute within the family. He said that he initially gave his support to those who opposed the sale of the land to his brother and who, in fact, wanted to have the sale set aside.

His mother was, however, not happy with his stand in the dispute and she therefore promised that if he (the plaintiff) withdrew his support for those opposing the sale, she would yield over the land in dispute to him. He contended that it was in fulfilment of this promise that his mother handed over the land to him, at a family meeting, which was attended by some important members of the family and which meeting was presided over by the then head of the family-Ebofen Otulaja.

On the other hand, the defendants’ case, both in their pleadings and in their evidence, was that their ancestor, Lusenbi, never divided her land amongst her children as contended by the plaintiff. It was their case that with the exception of the portion sold to Chief T.A. Odutola in 1956 and the grant made to one Sanusi Otubanjo (otherwise known as Sanusi Doctor), Lusenbi family land had, up to 1966, been communally owned and used by the members of the family. It was in 1966 that what remained of the family land was divided into plots and allocated to various members of the family. They said that the plaintiff’s mother was alive at the time of this general allocation of the family land, and was fully aware of what was going on and yet she did not lay any claim to the land in dispute.

At the trial the appellant gave evidence and called twelve witnesses in support of his claim. For the defence, the 2nd, 3rd, 6th and 7th defendants gave evidence and six other witnesses were called. At the conclusion of the case the learned trial judge Ademola, J. (as he then was) meticulously evaluated all the evidence adduced, and came to the conclusion that the appellant had failed to prove his case, and so dismissed the claim in its entirety.

Dissatisfied with the judgment, the appellant appealed to the Court of Appeal (Ogunkeye, Akanbi, Uche Omo, JJ.C.A.) and in a lucid judgment delivered by Akanbi, J.C.A. on 27th January, 1981, that court dismissed his appeal. The appellant, still dissatisfied has now appealed to this Court.

Originally three grounds of appeal were filed, but at the hearing, only one of them was argued, and that was the second ground of appeal. That ground reads as follows: