Liasu Adepoju V. Raji Oke. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C

This appeal was brought by the defendants against the judgment of the Court of Appeal. Ibadan Division which dismissed their appeal and a affirmed the decision of the High Court of Oyo, Osogbo Judicial Division, granting declaration of title, damages for trespass and injunction in favour of the plaintiff.

The plaintiff instituted the action for himself and on behalf of Alegbeleye family against 1st and 2nd defendants for themselves and on behalf of Ladumoye family and the 3rd and 4th defendants for themselves and on behalf of Abinusedun family.

The plaintiff’s claim against the defendants jointly and severally is for:-

1. “A declaration that the plaintiffs (sic) are the persons entitled to be granted title to statutory or customary right of occupancy in respect of all that piece or parcel of land situate lying and being at Gbonmi, Oshogbo.
2. The plaintiff claims against each of the defendants the sum or N500.00 being damages for trespass continued on the land in dispute which was in possession of the plaintiff when the defendants unlawfully entered the land in their possession in 1966.
3. An injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said parcel of land.”

The action was tried on pleadings filed by both parties following the order of the court of trial.

The plaintiff’s case was that the land in dispute originally belonged to Ataoja Matanmi who made a grant of it to the plaintiff’s ancestor called Ojo Alegbeleye. The land in dispute was said to be within the Oshogbo township walls and that the land within the town walls had been settled to belong to the Oba. It is the Oba that used to grant the area within the town walls to other people. The Ataoja Matanmi granted large parcel of land including the land in dispute to Ojo Alegbeleye. Ojo Alegbeleye was succeeded on the land by various heads of the family including Gbadamosi Olaniyan. It was the plaintiff’s case that each of these heads built houses on the land as well as farming the land and they planted economic trees thereon such as kola, coconut, cocoa and food crops. Grants were made of parts of the land to persons who were not members of Ategbeleye family while the family remained in possession of the area not granted.

Some of the grantees of the Alegbeleye family includes Orisabalayi the ancestor of Abinusedun family whose descendants are in possession of the areas not so granted as shown in Exhibit “8” (plaintiffs survey plan), some mechanics who built workshops on the land and pay rent for their holdings, the District Council and Nawarudeen for building schools and Asani who built a house on the portion granted to him. The parcels in dispute are marked “C’ and “D” and edged blue in Exhibit “8”. These are some parts of the entire area alleged to have originally belonged to the Alegbeleye family by virtue of that grant from Ataojo Matanmi.

The defendants’ case was that the land in dispute belonged to the 1st defendant’s family, Bale Gbonmi. It was the defendants’ case that the land in dispute belonged to Bale Ghonmi whose father settled on it and it was located in Gbonmi area. That Bale Gbonmi made grants of part of the land to Alegbeleye and the Abinusedun families (the 3rd and 4th defendants). It was also their case that the land in dispute was in Gbonmi area and also within the Oshogbo town walls though maintained that Gbonmi is a separate town from Oshogbo. They also claimed that it was Bale Gbonmi that made a grant of some portions of the land to the District Council and Nawarudeen to build schools and not the plaintiff’s family.

The learned trial Judge in a considered judgment granted all the reliefs claimed by the plaintiff, N1,000.00 damages for trespass was awarded against the 1st and 2nd defendants and an order of injunction was made against all the defendants. The defendants were not satisfied with the judgment of the learned trial Judge and appealed to the Court of Appeal, Ibadan Division. That appeal was dismissed and they further appealed to this court.

Briefs of argument were filed on behalf of the parties. From the grounds of appeal filed, the following issues were formulated in the appellants’ brief for determination in the appeal:

“(1) (a) What is continuing trespass in law

(b) Is there a continuing trespass (technically so-called) where ‘A’ built 5 houses between 1966 or 1969 on “B’s’ land’

(c) Can trespass committed in 1966 be continuing trespass for an act of building done in June, 1965

(2) Have the plaintiffs/respondents discharged the onus placed on them by law to prove with preponderance of evidence and with certainty;