Chief D. B. Ajibulu V. Major General D. O. Ajayi (Rtd) (2003)

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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A. 

This is an appeal against the judgment of the High Court of Justice, Osun State, Osogbo Judicial Division, delivered on the 30th day of April, 1993. The respondent in this appeal instituted this action as suit No. HOS/12/97 against the appellant as defendant claiming according to the endorsement on the writ of summons and paragraph 21 of the amended statement of claim as follows:

(i) N500,000.00 (Five hundred thousand Naira) damages for trespass committed by the defendant, his agents or servants on the plaintiff’s land situate, lying and being at Dada Estate Egbedore Local Government Area of Osun State, covered by a deed of conveyance registered as No. 43 at page 43 in volume 1502 of the Lands Registry in the office at Ibadan.

(ii) Perpetual injunction restraining the defendant, his agents, servants or privy from committing any further trespass on the land.

Parties filed and exchanged pleadings. In the course of trial before the lower court parties adduced oral evidence in support of their pleadings and tendered plan and documents of title. It was the case of the respondent as plaintiff that he bought the land in dispute from Chief Timothy Dada now deceased in 1972. It was part of a wide expanse of land – known and referred to as Dada Estate. The land was surveyed in July, 1972 and was formally conveyed to the respondent by the vendor Chief Dada by deed on the 23rd of June, 1972 – with a survey plan No. WP 89/3/72 dated 19/9/72, attached to the deed of conveyance.

The deed of conveyance registered as No. 43 at page 43 in volume 1502 of the Lands Registry in the office at Ibadan was tendered as exhibit A by PW1. He occupied the land undisturbed until 1996, when he discovered that the appellant – the defendant before the trial court, trespassed on the land. The appellant also purchased a parcel of land from Chief Dada – the same vendor as the respondent near the land in dispute.

The deed of conveyance between Chief Dada and the appellant dated 19/2/73 and registered as No.9 at page 9 in volume 1462 of the Land Registry was tendered as exhibit B. In 1996, the respondent found an uncompleted building on his land. A composite plan showing the land in dispute was tendered as exh. C by the Deputy Surveyor General of Osun State. The appellant built a house on the land he bought from Chief Dada. In 1995, the land was acquired by the Osun State Government whereupon the house erected by the appellant on the land was consequently demolished – so as to give way for the Osogbo Western Bye-Pass Express Road. Having lost his land and house the appellant’s children moved him to the land in dispute in 1995. His son gave him an agreement transferring the land to him. The agreement the appellant claimed was given to him in 1978. The land granted to the appellant by his son was supposed to have been sold to them by Sapo family. The agreement of sale sought to be tendered as IDKI was later expunged from the records as inadmissible.

In a considered judgment of the learned trial Judge all the respondent’s claims were granted in its entirety vide pages 30-44 of the records. Being aggrieved by the judgment the appellant lodged an appeal to this court. He filed a notice of appeal with three grounds and later filed four additional grounds pursuant to an order of this honourable court granted on the 2nd of October, 2000. Parties settled records – conditions of appeal imposed and record of appeal was compiled.

Parties filed and exchanged briefs pursuant to the Court of Appeal Rules, 2002. At the time of the hearing of this appeal – the appellant relied on the brief filed on 7/6/2001 and the respondent on the brief filed on 21/5/2002. In the appellant’s brief two issues were distilled for determination as follows:

(i) Whether having regards to the facts and circumstances of this case, the respondent could be said to have discharged the burden of proof that should entitle him to succeed in a claim for trespass and injunction.

(ii) Whether the learned trial Judge gave adequate and or any consideration to the principle of Mogaji v. Odofin (1978) 4 SC 91.

The two issues flow from the seven grounds of appeal filed.

The respondent identified three issues for determination as follows:

(1) Whether having regards to the facts and circumstances of this case, the respondent established his title over the land in dispute.