Suberu Giwa & Anor V. Muraina Akinlabi & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A (Delivering the Leading Judgment)

The appeal is against the judgment of the High Court of Oyo State, presided over by M.A. Owoade J, (as he then was) who entered judgment for the Respondents for trespass and injunction, as plaintiffs, in terms of paragraph 21 of their statement of claim.

The Respondents as plaintiffs claimed against the appellants in a representative capacity as defendants as follows:-

(1) N50,000 damages for trespass committed and still being committed by the defendants on the plaintiffs property situate, lying and being on Agidi Family land at Itutaba, more particularly delineated in the plan to be filed hereafter.

(2) INJUNCTION restraining the defendants by themselves, their agents, servants and or privies or otherwise howsoever from committing further acts of trespass on the land.

Dissatisfied with the judgment the then defendants appealed to this Court vide their Notice of appeal dated 26th May, 2005 containing six (6) grounds of appeal, pages 88-90 of the records of appeal.

The background facts on the appellants’ side are that, the plaintiffs instituted this action on behalf of Agidi Family while the defendants defended it on behalf of Amulegbosan family. Fasasi Giwa who died in course of the trial was substituted by Suberu Giwa now 1st appellant.

The plaintiffs’ case is that the land in dispute belongs to their ancestor Agidi, they claimed their ancestor named Agidi first settled at Oje with Dele but, after consulting Ifa Oracle as to where they were to stay, the Oracle revealed that both Agidi and Dele could not stay together, therefore, while Dele stayed at Oje, Agidi moved further.

The plaintiffs were alleged to have pleaded and given evidence to the effect that their family (Agidi Family) granted the late 1st defendant (Fasasi Giwa) permission to use a stretch of Agidi family land to build a shop. The plaintiffs contended that the defendants’ father was given a piece of land on which he built houses which protruded into the plaintiffs’ land but which they allowed as neighbours.

The plaintiffs instituted this action alleging trespass on portions of the land which they made out they allowed Fasasi Giwa to build shops on and the portion of the land on which the defendants’ family house protruded into plaintiffs land which they said they allowed as good neighbours.

On the defendants’ part, the defendants traced their title to the land in dispute to Dele who granted same to their father named Lawani.

The plaintiffs made out that their father came to Ibadan from Ile-Ogbo near Iwo, and first lived with Akinwumi at Oke Offa and later with one Alfa at Abonde compound when the said Alfa’s house became congested he obtained a grant of land from Dele where the defendants’ family compound was built, called Amulegbosan Family Compound.

The defendants made out that it was the same Dele who granted land to them that granted land to the plaintiffs’ father on which their family compound was built. The defendants contended that the former grantee of the land on which the plaintiffs had their family compound was one Alfa who renounced his grant and vacated the land when Alfa predicted that a legless demon inhabiting the land rolling and recycling thereon would cause mass deaths amongst the occupants of the land.

On the part of the respondents as plaintiffs, they took out the action against the appellants and made out their ancestor, Agidi, migrated from Ijagbo to Ibadan and first settled at Mapo/Oja’ba but later moved away from Mapo/Oja’ba to Oje and later moved further to Itutaba and settled. The land in dispute is said to be at Itutaba. The identity of the land was shown vide Exhibit P1 (Survey plan prepared by the Respondents).