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.”

With respect to this case to which both parties had referred,the learned trial Judge observed as follows:-

‘In their statement of claim, the plaintiffs pleaded that their grantor the Onidewure had got judgment on the defendants’ family over a large piece of land which includes the present land in dispute. I regret, however, that the plaintiffs did not tender any certified true copy of the said judgment and it was left for the defendants to produce this judgment which was admitted as Exhibits ‘B’.

But in my view judgment is of little assistance to me since the plan of the land then in dispute was not produced although one was used in the case. I am therefore not in a position to say whether the present land in dispute is part of the land upon which the judgment Ex. ‘B’ was given or not.”

The learned trial Judge then gave judgment for the plaintiffs both as to the claim for damages for trespass and also as to the injunction sought.

Being dissatisfied with the judgment, the defendants appealed to the Western State Court of Appeal. Four grounds of appeal were argued but the only ground which the court found to be of any substance is ground two which reads –

“The learned trial Judge erred in law in not dismissing the plaintiffs’ claims when they failed to establish a material averment in their pleadings,viz: that the Onidewure family had obtained judgment against the Adeipo family in suit I/54A/54 over a large area of land including the land in dispute – thus allowing the plaintiffs to set up a different case.”

In dealing with this ground of appeal, the Court of Appeal found as follows:-

“In the appeal now before us it is common ground that the Kudeti Stream is the boundary between Oni Olodo and Adeipo Compounds. Defendants are claiming that Oni Olodo was their relation and that the compound belongs to them. The judgment Ex.’B1′ found that Oni Olodo was a relation of Adeipo and that it was through Adeipo that Oni Olodo was made to settle in the area now known as Oni Olodo compound. The case for the plaintiffs in the appeal now before us is almost identical to that of Onidewure Ex. ‘B1’, except that in Onidewure’s case the court found that Oni Olodo and Adeipo were relations.

The judgment Ex. ‘B1′, in relation to this case decided that Oni Olodo compound was given to Oni through Adeipo which is very similar to plaintiffs’ case, whereas the defendants’ case is that the compound belonged to Adeipo. The judgment Ex. ‘B1′, also decided that the defendants’ ancestor’s compound is on the other side of Kudeti Stream and that they had no land throughout the length and breadth of the side of the stream where Oni Olodo compound is situated. This is borne out by Ex. ‘A’ the plan tendered in the case. The judgment Ex. ‘B1’, had not been set aside on appeal and it binds the defendants. Ex. ‘B1’, is sufficient answer to the defendant’s defence. It is to be observed that Ex. ‘B1′, contrary to the view held by the defence, strengthens the plaintiffs’ case.”

The Western State Court of Appeal thereupon dismissed the appeal.

At the hearing of the further appeal to this court against that judgment, Mr. Chukwura, who appeared for the defendants/appellants was granted leave to adduce new evidence by tendering the actual survey plan marked Ex. ‘A’ in suit No. I/54A/54 (Ex.’B1′). It must be pointed out that although the said survey plan was not before it at the hearing of the appeal, the Western State Court of Appeal, as can be seen from the above extract from the court’s judgment, referred to it as if it had been so tendered. After granting Mr. Chukwura’s application, the survey plan (No. CW44/54 of 25th May, 1954), partly because the judgment of the High Court in Ex. ‘B1’ was based on it, and partly because it had a significant bearing on the decision of the Western State Court of Appeal in the instant case, was admitted in evidence with the consent of both parties and remarked Ex. “C”.

The two grounds of appeal argued before us by Mr.Chukwura read –

“1. The Court of Appeal erred in law in its application of the decision in Chief Sokpui II v. Chief Tay Agbozo III (1951) 13 WACA 241 and Ebilie v. Onwugbona (unreported) FSC 124/62 decided on June 21, 1963 – the plan on which a judgment is based being necessary for the purpose of showing and identifying the area of land to which the judgment relates: and in this case the plan Ex. ‘A’ used in the suit of which Exhibit ‘B1’ is the judgment clearly exercised and excluded the land in dispute herein from the judgment for declaration and injunction there granted.

2.  The land in dispute in this case edged RED in plan No. LL5290 tendered in the court of first instance being the same land edged GREEN in the plan Ex. ‘A’ in suit No. 1/45A/54 of which Exhibit ‘B’ is the judgment, wherein it was held-

‘The area originally given the defendant respondent is edged green in the plan filed in court and marked Ex. ‘A’,the Court of Appeal erred in law and misdirected itself when it held-

The judgment Ex. B1 also decided that the defendants’ ancestor’s compound is on the other side of Kudeti Stream and that they had no land throughout the length and width of the side of the stream where Oni Olodo compound is situated.’

In support of his ground of appeal, Mr. Chukwura referred us to part of the testimony of one Oyedeji Ayinia, a grandson of Onidewure, who gave evidence for the plaintiff in suit No. I/45A/54 (Ex. ‘B’) which reads-

“His real name was Ogunlola; Onidewure was his title. My father Lanipekun was his son. When Ogunlola came to Ibadan, like other warriors, he took a virgin piece of land near Kudeti and settled there. Nobody was on the land. He later gave land to those who came after him to settle on. One of them was called Apete, another was Odedeyi Oke;also Adeipo, the ancestor of the present defendant.
Adeipo settled his people on the land given him.
One of the men he settled there was called Oni Olodo. Adeipo himself settled on the other side of the Kudeti stream. That land is not our own land.
He merely came and asked for land from us on this side of the stream for his followers as he had no enough land where he settled. Oni and these people with him built a compound in the land given him. About four of them were living in the compound. That compound is known as Olodo’s compound.

My ancestor had settled on his land and Adeipo has settled on the other side of the stream long before the latter came to ask for land for Oni.”
Mr. Chukwura also referred us to the findings of the trial Judge on the totality of the evidence adduced before him and argued that the plan (Ex. ‘C’) tendered in that case is crucial to the plaintiffs/respondents’ claim in the case in hand. He then submitted that the issue of who owned the land now in dispute had been decided in that earlier case.

The contention of Mr. Falade who appeared for the plaintiffs/respondents was that the issue had not been decided and that the learned trial Judge in the present case was right in making the findings of fact and holding as he did.

No doubt, because of the above testimony of Ayinia that Adeipo himself settled on one side of the Kudeti stream while he settled his people (who included Oni Olodo) on the other side of the stream on the land given by Onidewure (also known as Ogunlola) out of his own (that is, Onidewure’s) land on that side – which the learned trial Judge (Ademola CJ., West, as he then was) in that case accepted, the court in the judgment Ex. ‘B1′ upheld the claim of the Onidewure family against the Adeipo family and found as follows:

“I find that the defendant respondent and his people have gone far beyond land originally given to their ancestor by the plaintiff appellants’ ancestor. That the plaintiff appellant and his people have allowed some members of the defendant respondent’s to farm on portion of the land not granted to them owing to the relationship between the two families but have not at any time, made grants of that land to them for building purposes or any other purpose. The area originally given to the defendant respondent is edged green in the plan filed in court and marked Ex. ‘A’.

I enter judgment for the plaintiff appellant for the land claimed edged crimson in the plan Ex.’A’. Injunction is hereby granted against the defendant respondent, his agents, servants or workmen from entering that portion of the land “without the permission of the plaintiff appellant.”

A close look at the area edged crimson in the plan Ex. “A” in suit No. 1/45A/54 and now marked Ex. “C” in the case in hand shows that the area edged green in the said plan is excluded. As a matter of fact, it is stated in the plan (Ex. “C”) that this area edged green is the original area “given to Adeipo family by the plaintiff (that is, the Mogaji of the Onidewure family). This same area edged green was found by the leaned trial, judge in his judgment in that case (see Ex. ‘B1’) to have been given to Adeipo by Onidewure,the original owner.

A comparison of this land edged green in the plan Ex. ‘C’ tendered in that earlier case with that in dispute in the case in hand (edged red in the plan Ex. ‘A’) shows that the two pieces of land are more or less the same. Therefore, in view of the finding of the learned trial Judge in Ex. ‘B1’ that the area originally given to Adeipo is that area edged green in the plan now marked Ex.”C”, it is not now open to the learned trial Judge in the case in hand, since that earlier judgment is still subsisting, to make new findings of fact and thus hold that the same land was originally given by Onidewure to Oni Olodo. If he had compared the plan (Ex. ‘C’ on which the judgment in Ex. ‘B1’ was based with the plan Ex. ‘A’) in the case before him he would have realised that that issue had been decided as far back as 22nd November, 1956 in suit I/45A/54 in which a member of the grantor’s family (Oyedeji Ayinia) testified to the effect that land was granted on both sides of the Kudeti stream to Adeipo.

It will also be recalled that the 1st plaintiff/respondent in the case in hand (Busari Ajao), whose evidence the learned trial Judge believed, testified that the defendants/appellants were members of the Adeipo family. This witness was also aware of the earlier proceedings where the land edged green in Ex. ‘C’ was found to belong to the Adeipo family because he testified about these proceedings as follows:-

“There was a dispute which led to a court action between Onidewure family and Adeipo family over a marshy portion of land near the Kudeti stream.
The marshy portion of land which was in dispute is between the Kudeti stream and Oni Olodo land.
The case was in court about twelve years ago. I was present in court when the case was decided and judgment was given in favour of the Onidewure family.”

Salami Amoo (2nd plaintiff/respondent) also confirmed that the defendants/appellants are members of the Adeipo family and that the action was brought against them as members of that family. He also admitted that he knew about the earlier case, that he “was always in court during the hearing of the case until it was decided,” and that judgment was given in favour of the Onidewure family.

In view of all the findings of fact in the judgment (Ex. ‘B1’) and the admission of the representatives of the Oni Olodo family in the present case that they knew about that case, not to mention the particular finding that the land edged green in that case (which is more or less the same as the one in dispute in the present case) belongs to the Adeipo family, it seems to us that the learned trial Judge was in error in holding that the land in dispute is the property of the members of the family of Oni Olodo and that the defendants/appellants, who are members of the Adeipo family, had trespassed on the said land. We do not think it is open to him to make these new findings of fact. The Western State Court of Appeal was also in error in confirming these findings. For these reasons, the judgment cannot be allowed to stand.

The appeal is therefore allowed and the judgment of both the Ibadan High Court and the Western State Court of Appeal, including the respective order as to costs made in each court, are set aside. The plaintiffs claim in suit No. 1/53/69 is accordingly dismissed with costs assessed in the High Court at 150 Naira, in the Western State Court of Appeal at 120 Naira, and in this court at 133 Naira.

SC.261/1972