Asiru Gbadamosi & Ors. V. Alhaji Salami A. Bello & Ors. (1985)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

The appellants were the defendants in the High Court of Oyo State and the respondents were the plaintiffs. The latter claimed (on their behalf and as representatives of the Ariori family):

(a) a declaration of customary title to a piece or parcel of land, lying siiuate and being at Ariori Compound Idi Aro Ibadan;

(b) N400.00 damages for acts of trespass being committed by the defendants, their servants and or agents; and

(c) perpetual injunction restraining the defendants from committing other acts of trespass.

The parcel of land (hereinafter called the land in dispute) was described in the statement of claim and is shown on plan (Exhibit A). The gist of the plaintiffs’ case is that their ancestor Ariori settled, many years ago, on the whole of the land verged red on exhibit A. Later the defendants’ ancestor called Alfa Abibu was granted the area verged green in Exhibit A. A drainage or trench called Kuwo was used as boundary between the families of the plaintiffs and the defendants. The areas alleged to be trespassed upon consisted of five separate houses which are variously edged blue in Exhibit A. These houses are owned by Tijani Olapade (2nd defendant), Madam Adunola, Raufu, Alhaji Suara and Olaleye.

The defendants’ case is that the defendants’ ancestor, one Adelere, was granted a large piece of land by Abayomi. The areas on which the houses in question were built are part of the grant by Abayomi to Adelore.

It is quite clear that there was conflict in the traditional evidence which the parties relied upon to show that their ancestors had been in possession of the areas in dispute as full owners.

The learned trial judge, relying on the decisions in Kojo II v Bonsie 1957 1 W.L.R. 1226 and Ekpo v Ita 11 N.L.R. 68, came to the conclusion that the onus was on the plaintiffs to show acts of ownership in recent times, which are numerous and positive to warrant the inference that they (the plaintiffs) were the exclusive owners of the areas of land in respect of which a declaration of title was claimed.

After carefully applying his mind to the weight of the traditional evidence adduced, the learned trial judge concluded that the Kuwo drainage or trench as shown on Exhibit A constitutes the boundary, between the plaintiff’s family and the appellant’s family. He therefore granted the declaration sought by the plaintiffs.

On the claim for trespass, the learned trial judge found that the houses erected by the defendants had been on the plaintiffs land for 12 years. He therefore held that the plaintiffs had acquiesced for too long in the defendants act, and that the claim for damages for trespass failed. Consequently the learned trial judge did not restrain Tijani Olapade (2nd defendant), Madam Adunola, Raufu, Alhaji Suara and Olaleye from making use of the structures or houses built on the plaintiffs’ land. However since the houses are scattered over the plaintiff’s land and there were open spaces between some of them, the learned trial judge restrained the defendants from (a) erecting any new structures on the plaintiffs’ land and (b) any further acts of selling, leasing, mortgaging or otherwise disposing of any land in the area in dispute.

The defendants unsuccessfully appealed against the decision of the learned trial judge to the Court of Appeal. They have now appealed further before us.

Four original grounds of appeal were filed and these read as follows:-

“1. The learned trial judge erred in law in holding that grounds 6 and 9 of the appeal are not related to each other, to make it expedient (or all of them to be argued together when the two grounds are distinct and