Supreme Court endorses joint ownership in Osun land dispute
Believed to be his property, Mallam Saliu Ajagbe, who later became respondent before the Supreme Court had on July 3, 1996, sued Alhaji Mohammed Buhari Awodi and Alfa Idris Amao at the Upper Area Court I, Ilorin claiming declaration that their family in Ara Village, Kwara State Polytechnics Permanent site Area near Ilorin are the customary holders/owners and possessors of all the parcel of land stretching from Ara Village to Odogori, having an area of 133.267 hectares – part of which the defendant has trespassed upon particularly around Gaa Area Ile-Oganga River.
He also asked for declaration that the sale and allocation of some other parts to people – whose names were yet to be known to the plaintiffs without the prior consent and approval of the plaintiffs was null and void, while a sum of five thousand naira (N5,000) was requested as general damage against the defendant for an alleged trespass committed on the disputed land.
He was accused to have illegally sold parts of the lands and plucked the locust beans of the plaintiffs on parts of the aforesaid land. To preserve the res, the plaintiff prayed for an order of perpetual injunction against the defendant, restraining him, his servants, agents or privies or his heirs from entering any part of the aforesaid plaintiffs’ land.
In reaction, the appellants as defendants denied the claim of the plaintiffs and filed a counter claim on behalf of themselves and Ogbanga family as follows, the court to declare that their family was the owners of the piece or parcel of land situate and being at Ara Village bounded by Liman, Gaa Abubu, Odo Gori Ogangan, Ologbojo and Magaji Opoopo respectively. While a sum of N10,000.00 was pressed against the plaintiff in respect of the aforesaid piece or parcel of land for allegedly trespassing on the controversial land, the defendants also asked the court to make an order of perpetual injunction restraining the plaintiff either by himself, his servants, agents, privies or any person or persons howsoever from trespassing or committing further act(s) of trespass on the defendants’ family land above described.
After hearing evidence from both parties for and against their respective claims and counter-claims, the trial Upper Area Court held: “In our view in the faces of acts of ownership exercised by both parties as highlighted above in the evidence of the parties in the open court and during the visit to the locus and especially as pointed to us by the DW III which both parties agreed with him, we believe that each of the party has been exercising acts of ownership which spanned for a long time. We hold that both parties have established before the court act of ownership and user of the land in disputes, even though the story of the plaintiff on the traditional history is more convincing than that of the defendant.”
The court continued: “And also since the plaintiffs claimed and the defendants counterclaimed, the burden is squarely on both sides to adduce credible evidence in support of that title … since the plaintiffs are claiming the whole Ara and the defendants are claiming part thereof, we hold that from the totality of the evidence before us, both parties have pieces or parcel of land at Ara.
“We therefore hold that from the totality of the evidence before us, and what was shown to us at the locus, and having regard to the findings in this case reached on the balance of probability, we believe that both parties in this case have land at Ara. “The trial court then held that both the claim and counter claim succeeded in part.”
Unsatisfied with the decision of the Upper Area Court, the appellants filed an appeal to the appellate session of the High Court of Kwara State, Ilorin. Just like the appellants, the respondents were also dissatisfied with the said judgment and also cross-appealed.
In its judgment, the appellate High Court held: “It was because none of the parties disputed each other’s claim as shown by the boundaries that made the court to draw up a sketch map showing each party’s claim as limited by the accepted boundaries.
“We agree therefore that the court was justified in awarding each proved portion of the land to each party … and since the two parties agreed to the boundaries shown to the court during the visit to the locus in quo, each party was entitled to a declaration in respect of the parcel falling within his own boundary. The respondents/counter claimants could not ask for a declaration in respect of the whole parcel of land. They are only entitled to the portion established by evidence and which falls within their own boundaries…”
Again, the appellants were dissatisfied with the judgment of the High Court and they further appealed to the Court of Appeal, which upheld the judgment of the two previous courts on issue of long possession but set aside their findings on traditional history. The respondents also cross-appealed. The lower court also found no merit in the cross appeal.
Both the appeal and the cross appeal were dismissed. Being dissatisfied with the judgment of the lower court, the appellants further appealed to the apex’s court. The said notice had three grounds of appeal out of which the appellants distilled two issues for determination. They include whether upon failure of the plaintiff who relied on traditional history to establish his title, reliance could be placed on act of possession; and whether the court could grant a relief not claimed by both parties.
On his part, the respondent decoded two issues for the determination, which are whether it was just and right for the lower court to interfere with the concurrent findings of fact of the two courts below on the issue of prove of title by traditional history on the one hand and thereafter uphold another concurrent findings of fact of the same court as regards prove of title by acts of ownership and long possession on the other hand.
In addition, he wanted the court to determine whether in view of the claim and counter claim of the parties to the land in dispute, the concurrent decision of the three courts below in awarding same to each party to the extent of what was proved could be faulted on grounds of not being solicited for. In its verdict, the Supreme Court dismissed the suit for lack of merit.
The apex’s court rather upheld the decision of the Court of Appeal, which endorsed the decision of the appellate High Court and the Upper Area Court, Ilorin. But for reason of peaceful co-existence of these two neighbours, their lordships John Fabiyi, Suleiman Galadima, Bode Rhodes-Vivour, Nwali Ngwuta And John Okoro concluded that both parties to bear their respective costs.
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