O. Ogunde Vs Oseni Ojomu (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C.

This is an appeal from the judgment of the High Court of Lagos in suit No. LD/105/67 wherein the claim of the plaintiff, herein respondent, against the defendant, now appellant, was for 500pounds damages for trespass committed on his land situate in Aiyelero Street, at Iwaya, Yaba; and a perpetual injunction.

In his amended statement of claim filed and delivered in obedience to an order of court in that behalf, the plaintiff averred in effect and in so far as it is relevant to this appeal, that the land, the subject matter of the action and on which the defendant committed acts of trespass, was until he was let into possession thereof a portion of an area of land now known as Pedro village, originally granted absolutely as farm land to one Pachecco pedro, alias Daddy Pedro, in 1861; that since the said grant, Pachecco Pedro and his family and descendants have been exercising undisturbed all rights of ownership in and over the whole of the land so granted, including the portion in dispute, until he was let into possession of the said portion; that in 1967 after he had commenced building therein the defendant, his servants and agents, without his leave or licence, broke and entered upon the said portion of land and therefrom dug up and removed his survey pillars and destroyed the structure already erected thereon by him, whereby he suffered damage.

The defendant in his statement of defence traversed generally the relevant averments contained in the plaintiff’s statement of claim, and, particularly, alleged that the land in dispute “forms part of a large area of land which from time immemorial belongs under native law and custom to the Oloto Chieftaincy Family” who “have from time immemorial been in undisturbed and uninterrupted possession” thereof and have exercised all rights of ownership thereon’ and that he became the owner in possession of the portion in dispute by reason of his acquisition of the same in fee simple, free from encumbrances from the Oloto Chieftaincy Family aforesaid in 1964 as evidenced by a conveyance in his favour dated 16th August, 1965, and registered as No.5 at page 5 in Volume 1245 at the Registry of Lands in Lagos. The defendant, however, admitted that “in December, 1966 the plaintiff entered on to the said land and the defendant sent him out of it” but averred further: “the defendant has remained in undisturbed possession of the said hereditament ever since.”

On the pleadings, such as they were, it was clear that although the main claim of the plaintiff was grounded in trespass which is an action founded on possession, his claim to the anciliary relief of a perpetual injunction postulates the vital questions of title and puts the same in issue. Indeed, the defendant based his right to the possession of the land in dispute on a deed of conveyance by virtue of which the land was granted to him by the Oloto Chieftaincy Family and thereby rooted his title in the Oloto Chieftaincy family.

In the course of the trial before Adefarasin, J., it emerged from the evidence called in support of the plaintiff’s case, that the plaintiff himself was let into possession of the portion in dispute by the family of Pachecco Pedro and that Pachecco Pedro’s root of title was also traceable to the Oloto Chieftaincy Family, the evidence being that the land in dispute originally formed a small portion of a large area of what used to be farmland
in Iwaya, Yaba, originally granted by the Oloto Chieftaincy Family absolutely to Pachecco Pedro in or about 1861 and that since the said grant, different portions of the said land have from time to time been granted
by Pachecco Pedro and his family to a number of other persons without any objection by the Oloto Chieftaincy family.

It was also common ground among leading members of the Oloto Chieftaincy family, some of whom testified for the plaintiff and some for the defendant, which is not uncommon in cases of this kind, that an area of land in Iwaya, Yaba, was in fact granted to Pachecco Pedro by the Oloto Chieftaincy Family. They, however, disagreed among themselves as to whether or not the particular portion in dispute was included in the area so granted. Thus, in essence, the dispute shifted from the plaintiff, as it were, who never in any case laid claim to the title to the land in dispute, to the family of Pachecco Pedro, the original grantees of the land. In short, it became a three corner contest. For the plaintiff to succeed therefore in his action of trespass and injunction the issue of title which looms large throughout the proceedings required to be investigated and ascertained first. But the family of Pachecco Pedro were not directly a party to the suit although, like members of the Oloto Chieftaincy Family, some of them testified in favour of and supported the plaintiff’s claim.

The learned trial Judge, after due hearing of relevant evidence and with the consent of both counsel and parties to the action, inspected the land in dispute in the presence of both parties, their counsel and their witnesses who gave evidence in the case during the trial. Thereafter, proceedings were resumed in court when both counsel addressed the court. The learned trial Judge then took time to consider his judgment in the case. He reviewed the evidence in the case in his judgment and came to the conclusion that the piece of land in dispute between the parties was in the possession of the plaintiff and that it was in his possession when the defendant together with other persons entered the land and demolished part of the structure which the plaintiff was trying to erect. He rejected the evidence given in favour of the defendant and consequently entered judgment for the plaintiff and awarded him the sum of 80pounds as general damages with costs. He, however, declined to decree the injunction sought on the ground that the plaintiff did not make out a case entitling him to such a relief.

The defendant is dissatisfied with the judgment and has therefore brought this appeal. In all, seven grounds of appeal were filed. They are as follows:

“1.    Judgment is against the weight of evidence.

2.     The learned trial Judge erred in law and on the facts in failing to observe that having regard to the evidence before him the crucial issue in this case is whether the plaintiff or the defendant has established a better title to the land in dispute especially having regard to the fact that the land was bush land and had not even been surveyed by the plaintiff at the time he commenced building thereon.

3.     The learned trial Judge erred in law and on the facts in deciding that the plaintiff was in possession of the land in dispute when, on the evidence before him, title to the land was clearly vested in the defendant.

4.     The learned trial Judge misdirected himself in law in holding as follows:

(a)    “The truth is that the Oloto Chieftaincy Family very well knew that it had no right to deal with the land having previously divested itself of the interest in the land in favour of Pachecco Pedro.”