John Bankole & Ors. V. Mojidi Pelu & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

OMO J.S.C. 

This case on appeal was commenced twenty four years ago (1967) in the High Court of Lagos State, When the Plaintiffs/appellants, the Beku-Onimaba family of Igando village, sued the Osumba family of Ikotun village, claiming a declaration of title to part of their land called Moba, damages for trespass thereon by the defendants/ respondents and an injunction to restrain them from further trespass on the said land. The defendants/respondents vigorously denied these claims, asserting that the land claimed is part of their land called Mope.

Pleadings and plans were filed and exchanged by the parties. The plaintiffs/appellants produced survey plans to show the land in dispute (Exhibit A) and the whole of their land (Exhibit B),whilst the defendants/respondents tendered Exhibit G which cover not only the land in dispute but a larger parcel of land encompassing it which they claim belong to them. An identical plan tendered in a previous litigation was tendered by the plaintiffs/appellants, and admitted in evidence as Exhibit F. Hearing of this case in the High Court was unduly protracted, lasting 19 years, the actual trial spanning only 4 and a half years of this. At the trial, the High Court heard 17 witnesses and in a reserved judgment delivered on 22/6/86, dismissed the claims of the plaintiffs/appellants in their entirety. Against that judgments, the plaintiffs/appellants appealed to the Court of Appeal, their amended notice of appeal being dated 28/4/87. At the Court of Appeal, briefs were duly filed and oral argument proferred in support of their contentions by counsel. On 19/4/89, the Court of Appeal delivered its reserved judgment again dismissing the appeal of the plaintiffs/appellants and affirming the decision of the trial High Court with N350 costs in favour of the defendants/respondents. The present appeal to this court is against that judgment.

Before embarking on a consideration of the proceedings in, and issues for determination by this court, it will be useful to set out however briefly the main findings of the trial court and the court below which exercise will aid a better appreciation of the issues canvassed before us.

After hearing witnesses and considering exhibits, the trial High Court made the following findings of fact:-

(i) that although the plaintiffs pleaded that they have many tenants on the land in dispute none was shown on the land in dispute (Exhibit A).

(ii) that neither of the two witnesses whose farms were shown on Exhibit B was called to testify.

(iii) that the plaintiffs have no buildings on the land in dispute.

(iv) that Rufai and Tijani Ogunbewon, members of the plaintiffs’ family admitted in previous proceeding (Exhibit J refers) renting part of the land in dispute from and paying rents thereon to Mojidi Pelu – the 1st defendant. This is buttressed by receipts tendered in evidence as Exhibits M to M2.

(v) that the defendants story as to the name of the land (Mope/Imope) is preferred to that of the plaintiffs (Onimaba).

(vi) that even though P.W.1 and P.W.7 testified to having farms on the land in dispute before (presumably the dispute arose), not only were the sites of these previous farms not indicated on Exhibit A or B, but boundary witnesses called, did not testify in support of these claims.

(vii) that in respect of Exhibits D to D5 tendered as receipts issued to tenants of plaintiffs in respect of rent paid, evidence was not led to relate these documents to any particular land, nor were any of the servants called as witnesses; prominent among which is the present Bale of Ikotun-Kasunmu.

(viii) The defendants, on the other hand, have farms on the land, built houses thereon, have tenants who farm on the land, have juju shrines (Eyigba and Ogun) which they worship on the land in dispute.

(ix) that whilst D.W.5 and D.W.6 testified as tenants of the defendants, (Exhibits) M and M1 being admitted by D.W.6 as issued to him, D.W.7 defendants’ boundary man testified that the land in dispute is called Mope.