Yesufu Latinwo & Ors v. Busari Ajao & Anor (1973)

FATAYI-WILLIAMS, J.S.C. 

 In the Ibadan High Court in Suit No. 1/53/69, the plaintiffs claimed against the defendants the sum of 200(pounds) as damages for trespass committed by the defendants on the plaintiffs’ land. They also asked for perpetual injunction restraining the defendants and their servants or agents from committing any further act of trespass on the said land.

The plaintiffs based their claim on a grant to their ancestor,Oni Olodo, by one Onidewure. Apparently Onidewure granted Oni Olodo the land through the intervention of the mother of one Adeipo. After the grant, Oni Olodo and his two brothers Abioye, and Adetoke built houses on the land. On their death, the land devolved on Salami Amoo, the 2nd plaintiff, who is now the head of the Oni Olodo family.

For their part, the defendants while admitting that the 1st plaintiff is a grandson of Onidewure, denied that Abioye, Adetoke and the 2nd plaintiff are in any way related to Oni Olodo. Their case is that the land in dispute originally belonged to one Adeipo who put his brother Ojo and his mother on the land. Ojo had four sons the eldest of whom is called Oni. The others are Ola, Otunia and Oyewole. After the death of Ojo, Oni became the head of the family. Oni built a well on the land and neighbours used to come to draw water from the well. As a result, the compound became popular so much that Oni became known as Oni Olodo and the compound, which is the land now in dispute, as the Oni Olodo compound. The 3rd defendant testified that he is one of the direct children of Adeipo and that he and the other children of Adeipo are the owners of the land in dispute. He did say, however, that Sanusi Adeyemo (2nd defendant) is not related to Adeipo. He also admitted that the Kudeti Stream is the boundary between Adeipo family land and the Onidewure land.

The learned trial Judge, after considering the evidence adduced before him preferred the plaintiffs’ version to that of the defendants and found as follows:-

“I have given due consideration to all the evidence led in court and I would say that I am more impressed by the plaintiffs’ story and I accept it. I believe also the evidence of the 3rd and 4th plaintiffs’ witnesses that the land in dispute originally belonged to the Onidewure’s family and that this family granted the land in dispute, to the ancestors of the plaintiffs, Oni Olodo. I am also satisfied that since the grant was made, the plaintiffs have been in peaceful possession of the land and have exercised acts of ownership on it by building their personal houses and making various grants to other persons.

I find it difficult to place any reliance on the defendants’ story. In the first place, they claimed that the land in dispute belonged to Adeipo their original ancestor but there was no averment in the Statement of Defence as to Adeipo’s root of title.
The third defendant in his evidence said that Adeipo settled on the land first, but he gave no evidence as to where Adeipo came from, what he was doing before he came there and how he came to settle on the land. In the second place, the defendants claimed that Oni Olodo the ancestor of the plaintiffs was a child of Ojo the brother of Adeipo who according to them originally settled on the land in dispute. If this were so, one would have thought that the defence would resist the claim on the ground that the land in dispute belongs jointly to the two parties, and both being entitled to possession one of them cannot be liable in trespass to the other. But the case put forward by the defendants was that they were exclusively entitled to the land in dispute.”

Earlier, the plaintiffs had averred in paragraphs 20-23 of their statement of claim as follows:-

“20. In 1954, Oyekan, the then Mogaji Onidewure sued Adepoju, the then Mogaji Adeipo in suit 27/54 at the Native Lands court, Ibadan, on a larger portion of land including the land in dispute and he got judgment.

21. The defendant in the said suit appealed to the Judicial Native Court of Appeal as suit 120/54 and his appeal was allowed.

22. The plaintiff in the said suit – Oyekan Mogaji Onidewure – was dissatisfied with the judgment of the Appeal court referred to in paragraph 21 above and he appealed to the High Court in 1954 in suit No. 1/45A/54 and his appeal was allowed. The judgment of the Native Lands Court was restored.

23. The plaintiffs will rely on the above judgments during trial.”

The 3rd defendant testified in respect of this averment by the plaintiffs as follows:-

“I know of the action between the Onidewure family and the Adeipo family.

The action was commenced in the native court, and I gave evidence during the trial. The matter eventually came to the High Court Ibadan but I did not give evidence during that trial.”