OYEBANJI V. OKUNOLA & ANOR.

• Pages: 127-129

OYEBANJI V. OKUNOLA & ANOR.

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As a result the appeal is dismissed as regards liability but the total damages

awarded are reduced to £463. The order for costs in the High Court will remain

unaltered, and as both parties have succeeded to some extent in this court there

will be no order for costs of the appeal.

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Appeal dismissed as regards

liability: Total damages reduced.

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OYEBANJI V. OKUNOLA & ANOR.

JOSEPH ATOYEBI OYEBANJI

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V

BASHIRU OKUNOLA & ANOTHEF

SUPREME COURT, NIGERIA

BRETT,

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J.S.C.

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COKER,

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J.S.C.

LEWIS,

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J.S.C.

17th May, 1968.

APPELLANT

RESPONDENT

SUIT NO. SC 21/1966

Tort - Trespass - Action by person in possession - Onus on plaintiff to prove

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possession - Land Law - Lana' properly of "A" family, described as B's land

and conveyed as such - 'B' a member of 'A' family - Effect of land being

conveyed solely by B.

ISSUES:

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1. Whether a plaintiff in action for :respass has to have been in possession of the

land at the time of the trespass.

2.

Whether proof of good title is required to maintain an action in trespass to land.

3.

Where a member of a family conveys family land as his personal property, does

the purchaser obtain good title to the land.

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FACTS:

The appellant was plaintiff in the High Court Ikeja in an action in which he sued

the respondents for damages for trespass on a piece of land and for injunction.

The respondents denied that the appellant was in possession of the land in dis-

pute. The High Court found as a fact that the appellant was not in possession of

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it. Moreover the appellant admitted that the original true owners of the land were

Ojomo Eyisha Family. But in the conveyance on which he relied as vesting title in

him, the land was described as belonging to Aboki Bada (a member of Ojomo

Eyisha Family) and Aboki Bada conveyed it as belonging to him personally. The

High Court dismissed the claim. Plaintiff appealed to the Supreme Court.

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HELD:

1.

A plaintiff in an action of trespa

s

s to land in order to succeed must be one who

was in possession of the land at the time of the trespass complained of or who

is deemed to have been in such possession at such time.

2.

In the course of the trial, the title of the plaintiff was put in issue, and, if it was

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established that his title to the land was good, he would be entitled by his entry

on the land to maintain an action for trespass by relation.

3.

In the course of his own evidence, appellant admitted that the true owners of

the land were the Ojomo Eyisha Family: it is inconceivable that Kasunmu

Fagbayi Aboki Bada could have validly conveyed Ojomo Eyisha Family land