Ojo Adebayo Vs Mrs. F. Ighodalo (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

The Appellant as plaintiff in the Ibadan High Court for himself and on behalf of Banjoko Family claimed damages for trespass and perpetual injunction against the Defendant/Respondent, her agents, servants and/or privies in respect of their land at Olomi Area Olojuoro Road, Ibadan, and for perpetual injunction restraining her from further acts of trespass.

Pleadings were ordered, filed and exchanged.

The plaintiff’s case on the pleadings was that his family owned the land in dispute through settlement by one Ojo, his ancestor after the Jalumi War. The same pleadings averred that the land in dispute formed only a portion of land shared between two brothers, Ojo and Onikeola as farmland, popularly called Banjoko. In his testimony, however, plaintiff said that that piece of land was called Elewu and that his grandfather Ojo, settled on the land in dispute during and after the Jalumi War as pleaded. In his evidence in support of the plaintiff’s case, 2nd P.W. Yesufu Onikeola, said that the plaintiff’s grandfather was Odewale and not Ojo as pleaded and finally that Onikeola, his grandfather, was the original owner of the land in dispute and not Ojo as pleaded.

The plaintiff also finally claimed in his pleadings and testified in support thereof that his family had been in possession of the land in dispute through various acts, mostly farming, but further still by granting a portion of the land to one Raji Ogundiran who even though died a long time ago and was unknown to him, he still allowed his descendants to remain on the land as customary tenants. He called four of their boundary men who supported his case. The cause of the dispute in the instant case was the complaint of the plaintiff that the defendant had trespassed on the land in dispute; there having been an earlier trespass some fifteen years before, leading to the challenge of the defendant with a fight ensuing that culminated in the prosecution and conviction of two persons from both sides.

The defendant on the other hand, joined issues with the plaintiff in her Statement of Defence wherein she pleaded by tracing her root of title by purchase in 1960 from Akatapa Family whose title was by settlement over 100 years ago. She also claimed to have been farming on the land in dispute for several years; that she purchased several different portions of land at different times and supported them by conveyances vide Exhibits “A”, “C2” and “C1” respectively.

In a well considered judgment Adekola, J., on 20th June, 1985, dismissed the plaintiff’s claims in their entirety. The plaintiff being dissatisfied with the said judgment appealed to the Ibadan Division of the Court of Appeal which also on 18th July, 1988, in affirming the trial court’s decision held, inter alia, thus:

“The traditional evidence led in this case clearly appears to be completely unsatisfactory for any reasonable tribunal to have said that the burden of proof had been discharged. Issues (i) and (ii) posed by the learned counsel for the Appellant above must therefore be answered in the negative, the Appellants did not proof their title to the land in dispute by traditional evidence nor did they prove that they were in possession of the land. This appeal has undoubtedly come to an end and after arriving at those conclusions as I have done.”

Being further aggrieved by this decision the plaintiff has now appealed to this court, having obtained leave to do so on issues of fact on the 18th of October, 1988, premised on the six grounds of appeal earlier filed attacking the decision. The parties exchanged briefs of argument in accordance with the rules of court. Two issues were submitted at the plaintiff’s instance – the second of which has been subdivided into two – for our determination thus:

“(i) Having regard to the finding that the Appellant’s ancestor Ojo was the original owner of the land, was the Court of Appeal entitled to hold that the traditional evidence of the Appellant was unsatisfactory .

(ii) Did the fact that the Respondent was able to prove purchase from the Akatapa family amount to proof which could defeat the Appellant’s traditional history”

The two sub-issues of issue (ii) above are renumbered by me as follows:-

“(iii) Did the Appellant need to prove any acts of possession, and did they prove sufficiently such acts”

(iv) Were the acts of possession attested by the Respondent and her witnesses of any probative value”