DAVID OYE OLAGBEMIRO VS OBA OLADUNNI AJAGUNBADE III
(1990) LCN/2432(SC)
In the Supreme Court of Nigeria
Friday, May 4, 1990
Case Number: SC. 178/1988
JUSTICES:
M. BELLO – JUSTICE, SUPREME COURT
A.O. OBASEKI – JUSTICE, SUPREME COURT
A. NNAMANI – JUSTICE, SUPREME COURT
M.L. UWAIS – JUSTICE, SUPREME COURT
A.G. KARIBI-WHYTE – JUSTICE, SUPREME COURT
S. KAWU – JUSTICE, SUPREME COURT
A.B. WALI – JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
DAVID OYE OLAGBEMIRO
AND
RESPONDENTS
OBA OLADUNNI AJAGUNGBADE III OGBOMOSHO LOCAL GOVERNMENT
RATIO
ON TRESPASS
It is trite law that trespass is a wrong committed against a person who is in exclusive possession of the land trespassed onto: PER BELLO, JSC
BELLO. C.J.N. (Delivering the Judgment by the Court) The Appellant was the plaintiff in the High Court, Oshogbo, where he claimed against the 1st Respondent: “1. A DECLARATION of title in fee simple or alternatively under A native law and custom to all that piece or parcel of land situate being and lying at LAOYE STREET MASIFA, OGBOMOSHO in Oyo State of Nigeria and covered by a Deed of Conveyance dated the 30th January, 1973, and registered as No. 25 at page 25 in volume 1452 of the lands registry in the office at Ibadan and plan No. OB 2705 dated 8th February, 1977. 2. N5,000 being damages for trespass committed by the defendant, his agents or servants at various times in 1974 on the said land. 3. PERPETUAL INJUNCTION restraining the defendant, his agents or servants from committing further acts of trespass. Annual rental value – N200.00.” At its instance, the 2nd respondent was joined as the 2nd defendant in the suit. The plaintiff averred in his pleadings that the land in dispute forms a portion of a large track of land belonging absolutely since very many years ago to Layode Chieftaincy family who are the original owners; that the said family had exercised full rights of ownership on the land in dispute before the family sold and conveyed it to the plaintiff. The plaintiff further averred p that after he had purchased it in 1973, he erected sign board thereon, built a block wall fence around it and deposited sand and some blocks on it; that since April, 1976, the 1st defendant, his agents and servants have been trespassing onto the land in dispute and that after the institution of this suit the 1st defendant and his agents uprooted and removed the sign board of the plaintiff. In anticipation of the defence of the 1st defendant the plaintiff pleaded in paragraph 12 of his Statement of Claim: “12. The plaintiff avers that the defendant bought a different piece or parcel of land (not far from the one in dispute) from the same family, of LAYODE CHIEFTAINCY FAMILY. The said land which is smaller than plaintiff’s land (i.e. land in dispute) is situate, lying and being behind Oshogbo District Council Rest House which is not far from the land in dispute” The gravamen of the defence of the 1st defendant is that the land in dispute belongs to the Shoun of Ogbomosho under native law and custom from time immemorial by settlement. It is pertinent to set out his defence in extenso. After denying that the Layode family was the original owners of the land, the Amended Statement of Defence continues: “3. That 1st defendant by virtue of being the Shoun of Ogbomosho is the head of the entire family of Shoun of Ogbomosho under native law and custom, and the successor-in-title to the Shoun’s land including the land in dispute. 4. Under native law and custom the land was vested in the first Shoun of Ogbomosho (Ogunlola) by settlement and occupation and in the successive Shouns who succeeded him after his death. 5. The Layode family referred to in paragraph 4 of the statement of claim is a sub-section of Odunaro section of Shoun of Ogbomosho family and has no exclusive right of ownership to the land in dispute. 6. It was the successive Shoun of Ogbomosho that exercised acts of ownership on the land in dispute and the land adjacent thereto. 7. The land now in dispute forms part of the land which the late Oba Olanipekun Laoye II as Shoun of Ogbomosho granted to the Ogbomosho Muslims for the building of the Ansar-Ud-deen School, Masifa, Ogbomosho, sometime in 1951. The grant was made under native law and custom. 8. The said land in dispute is part and parcel of land granted later by late Oba Olatunji Elepo II as Shoun of Ogbomosho to Oghomosho Local Government Council for the use of the Ogbomosho Community in 1954 out of the large piece of land granted by his Predecessor to the Muslims in Paragraph 7 above. 9. The said Oghomosho Local Government Council used the land for its Local Government Police Barracks about 1954 until 1967. 10. The buildings erected by the Ogbomosho Local Government Council on the part of the land granted to it by the late Oba Olatunji Elepo II as Shoun of Ogbomosho later housed the Osbun North West Divisional Office and at present it houses the Health Department of the Oghomosho Local Government Council, shown on the survey plan filed by the 1st defendant as “Health Office.” 11. (a) The land now claimed by the Plaintiff was the parade ground of the said Ogbomosho Local Government Police and the council planted banana grass on the land which can still be found on the land in dispute. (b) The representatives of all the sections of the Shoun family including members of Layode family held meetings in 1972 in order to convey to the 2nd defendant the several pieces of lands already made available to the council for the use of the community including the land now in dispute. The 2nd defendant shall at the trial rely on the minutes of the said meetings, and particularly minute of meetings held on 11/12/72, 24/8/72 and 7/9/72. The representatives of all the sections of the Shoun family including members of Layode section held meetings in 1972 in order to convey the land in dispute. 12. That Ogbomosho Local Government Council demarcated the extent of the land granted to it by Shoun of Ogbomosho for the use of the community in 1954 by a trench dug and cemented along the land and part of which is shown by two black un-broken lines on the Eastern side of survey plan filed by the plaintiff in this case and shown more extensively on the Plan filed by the defendant. 13. About 1969 the Local Government Police system was abolished by the Federal Military Government of Nigeria and the said land was in disuse but the staff of the Local Government were maintaining the land by cutting grass and cleaning its drains. 14. That Plaintiff unlawfully entered upon the land in dispute in 1973 when Oba Ajiboye Itabiyi II my immediate predecessor in office was Shoun of Ogbomosho. 15. When the said Shoun Oba Ajiboye Itabiyi II challenged him, the plaintiff left the land and begged the said Shoun to grant him land in consideration of the sum of N3,000.00 which the plaintiff offered to Oba Itabiyi II. The late Oba Itabiyi refused to do so. 16. Soon after that the late Oba Itabiyi II fell sick and was admitted to the Hospital and dies a few months later. 17. Soon after the death of Oba Itabiyi and before a new Shoun was selected and installed the plaintiff entered upon the land and erected the wall fence and was challenged by the Officer of the Ogbomosho Local Government Council in charge of land. His surveyor was also challenged when he was surveying the land. 18. As soon as the 1st defendant became the Shoun of Ogbomosho he warned the plaintiff from going on to the land in dispute. 19. The plaintiff enlisted the assistance of some personalities in town including Chief Garuba Oyelude Jagun of Ogbomosho to beg him and grant him the land in consideration of sum of money which the Plaintiff was prepared to offer to the 1st defendant. The 1st defendant refused the offer and refused to grant the land to the plaintiff. 20. The plaintiff started to deposit sand on the land in dispute about September, 1976, and the 1st defendant warned the plaintiff both verbally and in writing. The Plaintiff did not any time have his sign board on the land. 21. In reply to paragraph 9 and 10 of the Statement of Claim the 1st defendant contends that he asked his servants as of his right the beneficial owner of the land. The 1st defendant further avers that it is the Plaintiff that is a trespasser on the land. 22. (a) That according to native law and custom any part of Shoun of Ogbomosho land granted to any person or group of persons becomes a stool land and any right or reversionary interest accruing from it accrues to the incumbent of the stool of Shoun of Oghomosho. Hence, the Hausa Community pay homage to Shoun annually in respect of Sabo settlement granted to Oba Sabi near the land in dispute for the use of Hausa community by Oba Oyewumi Ajagungbade II. (b) The land of the Saint David’s Anglican Church, Sabo, Ogbomosho which is not far from the land in dispute was granted to it by Shoun Laoye in 1890 and was conveyed to the Church later by another succeeding Shoun together with heads of all sections of the family.
The 1st defendant will rely on the deed of conveyance registered as No. 5 Page 5 in volume IIII of the Lands Registry, Ibadan. 23. The Shoun received the rent in respect of the Baptist Hospital land and the Baptist Centre granted to the Baptist Mission for use at Ogbomosho. The Shoun granted five separate pieces of land near the land in dispute to the Nigerian Tobacco Company Limited and it is any reigning Shoun that receives the rents in respect of the holdings.” In paragraph 25, he pleaded thus: “25. The 1st defendant denies paragraph 12 of the Statement of Claim and in reply to the same the 1st defendant says that the land on which he has his private house is adjacent to the Muslim Community praying ground and it is over a kilometer from the land in dispute.” Thereafter, the 1st defendant counter-claimed the whole area verged Red on his survey plan LL-8110 which included the land in dispute, sought perpetual injunction restraining the plaintiff, his servants or agents from committing further acts of trespass and N8,000 as damages for trespass. In its pleadings, after having denied that the Layode family was the original owner of the land in dispute, the 2nd defendant averred that the land belongs to Shoun of Ogbomosho by settlement and occupation from time immemorial; that in 1954 the late Shoun Oba Olatunji Elepo II granted the land to the 2nd defendant and since then the 2nd defendant has been in lawful occupation and possession by using it as a barrack and parade ground for the Local Government Police; that when the said Police was abolished in 1967 the 2nd defendant continued to maintain the land; that the plaintiff entered the land in 1973 but left after the 2nd defendant had challenged him; again when he re-appeared on the land in 1976 and started to deposit sand and gravel, the 2nd defendant warned him in writing. I consider it necessary to set out in full the Reply and Defence to counter-claim of the plaintiff. They are in these terms: “2. As to paragraphs 3, 5, 6 and 22 of the Defence the plaintiff says as follows:- (1) That the five ruling houses or families (Layode; Gbagun; Oyewumi, Bolanta, Aburumake (or Itabiyi) in Ogbomosho have different tracts of land situate and being at Ogbomosho. (2) That the defendant has bought several parcels of land from Layode and Obagun families. In this connection the Plaintiff will rely on the following Deeds of Conveyance registered in the land Registry Ibadan as No. 21 page 21 Volume 1135; No. 38 Volume 941; No. 41 page 41 Volume 1183; No. 51 page 51 Volume 1112. (3) That the Layode family has also sold several other plots to other persons in Ogbomosho. In this connection, the Plaintiff will rely on the following Deeds of Conveyance registered in the Lands Registry Ibadan as No.9 page 9 Volume 989 No. 6 Page 6 Volume 298; No. 20 Page 20 Volume 731. (4) On some occasions, Layode family has granted parcels of land in Ogbomosho to various Governments and Institutions (Public and Private). In this connection, the Plaintiff will rely on the Deed of Conveyance dated 23rd of March, 1973 between the then Western State Government and Layode family and registered in the Lands Registry as No. 12 Page 12 in Volume 1449. (5) That the land in dispute said to be the property of the Plaintiff has been acknowledged by the then Divisional Office of the Oshun North-West Division Ogbomosho in its letter dated the 20th March, 1973 to the Secretary, District Council Ogbomosho. (6) That the Oshun North-West Division and all the official Bodies of both the former Western State and the present Oyo State have always recognised Layode Ruling House or family as a Distinct Ruling House or Family. In this connection the Plaintiff will rely on a letter dated the 3rd of November, 1969 from the Oshun North-West Division to Mogaji of the Layode Ruling House and others on the ‘Acquisition of land for the proposed Veterinary Control Pest and Cattle Market Ogbomosho.’ Defence to Counter-Claim 3. As to the Counter-claim, the Plaintiff will contend at the trial that the subject matter in the
