Fagbemi Akano V. Moses Alabi Okunade & Ors (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

We allowed this appeal against the judgment of the Western State Court of Appeal on the 23rd day of February, 1978 and now give our reasons.

These proceedings were commenced in the High Court of the Western State at Abeokuta by Writ of Summons endorsed with the particulars of claim which reads:

(1) Declaration of title according to Native Law and Custom to the plaintiffs farmland lying and situate at Orile Ilugun, Abeokuta Province, Western Nigeria;

(2) Recovery of possession of the said farmland; and

(3) Mesne profits from latter part of 1959 up to the time of delivery up of possession.

Pleadings were ordered, filed and duly delivered and the matter came up for hearing before Adewale Thompson, J.

In a considered judgment, the learned trial Judge dismissed the claim for declaration of title, made an order for possession and allowed the claim for mesne profits in the sum of 270 pounds (N540.00). More particularly, the concluding paragraph of the said judgment reads:

“From the above, the remedy of declaration of title cannot enure for the benefit of the Plaintiff and that title is still in the community and it is not clear whether they have divested themselves of it. It seems to me however that the Plaintiff cannot be evicted because he had never committed any acts of customary misbehaviour. That situation might arise in future if the Plaintiff refuses to pay a new Bale on demand the confirmation fee of 32.10/.

It is therefore my judgment that the Plaitniff is entitled to possession of the land shown in the plan Exhibit A, edged red and which possession is granted to him forthwith. As regards the claim for mesne profits, there is evidence that Plaintiff makes no less than 20 pounds per month from the farm. It was pleaded that Plaintiff was evicted about 10 years ago but as there was no clear cut evidence as to the time plaintiff was evicted, I am fixing the time for the purpose of this head of claim at 25th November, 1966, the date of the writ of summons and award Plaintiff 5 pounds per month from November, 1966 to April, 1971 making a total of 270 pounds.

For the removal of doubt, the following are the final orders made in this action:

(1) plaintiff’s claim for declaration of title is dismissed;

(2) plaintiff is to recover possession forthwith of the land in dispute as shown in the plan Exhibit A edged red.

(3) plaintiff is awarded the sum of 270 pounds being mesne profits between November, 1966 and April, 1971 at 5 pounds per month.”