CHIEF OYELAKIN BALOGUN & 2 ORS (APPELLANT)
v.
OLADOSU AKANJI AND ANOR (RESPONDENT)
(1988) All N.L.R. 188
Division: Supreme Court of Nigeria
Date of Judgment: February, 12, 1988
Case Number: (SC94/1986)
Before: Nnamani, Uwais, Oputa, Wali, Craig; JJ.S.C
The respondents were the plaintiffs in a suit which they instituted against the appellants as the defendants in the High Court of Oyo state, holden at Ibadan. The plaintiffs' claims (as per their writ of summons) were jointly and severally against the defendants as follows:-declaration of statutory right of occupancy to all that piece and parcel of land situate, lying and being at Olunloyo near Akanran road Ibadan; N5,000.00 general damages for trespass; and perpetual injunction restraining the defendants, their servants or agents from further trespass to the land and Annual rental value of N300.00.
Pleadings were filed and exchanged between the parties, except that the 2nd defendant-Ganiyu Kolapo Adigun neither file a statement of defence nor put up appearance at the hearing of the suit.
The plaintiffs case was that the land in dispute which was verged red in plan OG 477/80 which was admitted in evidence as exhibit A was settled on by their ancestor, one Ojo sango, after the kiriji war which affected Ibadan. It was claimed that Ojo Sango came to the land in dispute together with his two brothers-Abidogun and Sangotayo. They settled on and used the land. On their death, they were succeeded on the land in dispute by the Children of Sangotayo who were in turn succeeded by their own children (that is the grandchildren of Sangotayo). The plaintiffs are the grandchildren of Sangotayo.
On the other hand, the case for the 1st and 3rd defendants though similar were different. The case for the 1st defendant was that an area of land in dispute which was verged green in Exhibit A was settled upon by conquest by one Bamimeke Akani, who was a warrior during the reign of Bashorun Oluyole who ruled Ibadan from 1820 to 1850. When Bamimeke Akanbi died, he was succeeded on the land by members of his family. The 1st defendant claimed title of the piece of land verged green in Exhibit A through the family of Bamimeke Akanbi.
The case for the 3rd defendants was that a piece of land which is part of the land in dispute and which was verged yellow in Exhibit A was first acquired jointly by Ogunfalu and Bamimeke by settlement and occupation under Yoruba Native law and custom. The acquisition took place during the reign of Bashorum Oluyole Ogunfalu and Bamimeke were succeeded on the piece of land in question by their children who had been in undisturbed possession. The children had sold portions of the land to various people including the mother of the 3rd defendant called Fehintola. On her death, Fehintola was succeeded on the land by her three children, one of whom is the 3rd defendant. The 3rd defendant sold a portion of the land they inherited to the 2nd defendant who did not contest the plaintiffs' claims.
The parties called witnesses and the trial judge held that the plaintiffs have not shown such exclusive possession as would lend aid to the evidence that Ojo Sango was the owner of the land. The court was however satisfied that the plaintiffs ancestors owned some undefined part of the land in dispute. The court held that since the plaintiffs have failed to prove exclusive possession of the entire land, or could not find trespass proved. The court therefore dismissed the plaintiffs claim for trespass and non - suit the plaintiffs claim for declaration and injunction.
Both the plaintiffs and the defendants felt aggrieved by the decision of the trial judge. They therefore appealed and cross appealed to the court of Appeal. The Court of Appeal dismissed the cross-appeal and allowed the appeal of the plaintiffs, granted a declaration of the statutory right of occupancy sought by the plaintiffs awarded damages against the defendants for trespass and ordered an injunction restraining the defendants, their servants and agents from further act of trespass to the land.
It is against that decision that the 1st defendant has appealed to the Supreme Court.
HELD:-
(1) As the evidence of the traditional history of the defence was inconsistent and conflicting, and no boundary men were called by them; the trial judge should have believed the traditional evidence of the plaintiffs since in his words "their assertion that the land in dispute belonged to Ojo Sango remained unshaken in cross-examination" of their boundary men.
(2) By the acceptance of their traditional evidence, it was enough for their claim for declaration to be granted. It was not therefore necessary for the trial judge to look for evidence of exclusive possession of the land in dispute before the declaration sought by the plaintiffs could be granted.
(3) Once it has been established that the plaintiffs had better title to the land in dispute and the defendants were on the land without the permission of the plaintiffs, then the claim by the plaintiffs for trespass against the defendants have been established and ought to have been granted.
(4) In the light of the foregoing, there is no doubt that the learned trial Judge did not evaluate the evidence before him properly and that occasioned miscarriage of Justice. The Court of Appeal had, in my opinion acted rightly in re-evaluating the evidence and coming to the conclusion which it did.
(5) The Court of Appeal merely put together under one head a precise of all the grounds of appeal and cross-appeal that raised the same points. And in dealing with the issues, it recognised that some of them were very wide. In fulfilling it pledge to deal with the most relevant ones, it extensively dealt with the findings made by the trial judge. I see no miscarriage of justice which has been occasioned as a result of the exercise.
Appeal dismissed
Mr Y.A. Agbege for the Appellants
Mr J. O. A. Ajakaiye for the Respondents
Cases Referred to:-
(1) Ajadi v. Olanrewoyu (1969)
(2) Akinola v. Oluwa (1962) All NLR Vol 1 Part 2 at p 227
(3) Ebba v. Ogodo (1984) 4SC 86 at p 98
(4) Idudun v. Okumagba (1976) 1 NMLR 200 at p 210
(5) Wolucham & Anor. v. Simon Gudi (1981) 5 S.C 319.
Uwais, JSC. In this appeal the respondents were the plaintiffs in a suit which they instituted against the appellants as defendants in the High Court of Oyo State, holden at Ibadan. The plaintiffs' claims (as per their writ of summons) were jointly and severally against the defendants as follows-
"(a) Declaration of statutory right of occupancy to all that piece and parcel of land situate lying and being at Olunloyo near Akanran Road, Ibadan bounded by Alawaye land, Allen land, Agbongbon land, Abegunde land and Bode Asha land respectively.
(b) N5,000.00 general damages for trespass
(c) Perpetual injunction restraining the Defendants, their servants, agents and privies from further trespass to the land. Annual rental value N300.00."
Pleadings were filed and exchanged between the parties, except that the 2nd defendant-Ganiyu Kolapo Adigun neither filed a statement of defence nor put up appearance at the hearing of the suit.
The plaintiffs' case was that the land in dispute, which was verged red in plan OG 477/80 which was put in evidence as exhibit A, was settled on by their ancestor, one Ojo Sango, after the Kiriji War which affected Ibadan. It was claimed that Ojo Sango came to the land in dispute together with his two brothers-Abidogun and Sangotayo. They settled on and used the land. On their death, they were succeeded on the land in dispute by the children of Sangotayo, who were in turn succeeded by their own children (that is the grandchildren of Sangotayo). The plaintiffs are the grandchildren of Sangotayo.
On the other hand, the case for the 1st and 3rd defendants, though similar, were different. The case for the 1st defendant was that an area of the land in dispute which was verged green in exhibit A was settled upon by conquest by one Bamimeke Akanbi, who was a warrior during the reign of Bashorun Oluyole who ruled Ibadan from 1820 to 1850. When Bamimeke Akanbi died, he was succeeded on the land by members of his family. 1st defendant claimed title of the piece of land verged green in exhibit A through the family of Bamimeke Akanbi.
The case for the 3rd appellant was that a piece of land, which is part of the land in dispute and which was verged yellow in exhibit A, was first acquired jointly by Ogunfalu and Bamimeke by settlement and occupation under Yoruba native Law and Custom. The acquisition took place during the reign of Bashorun Oluyole. Ogunfalu and Bamimeke were succeeded on the piece of land in question by their children who had been in undisturbed possession. The children had sold portions of the land to various people including the mother of the 3rd defendant, called Fehintola. On her death, Fehintola was succeeded on the land by her three children, one of whom, is the 3rd defendant. The 3rd defendant sold a portion of the land they inherited to the 2nd defendant, who did not contest the plaintiffs' claims.
The parties called witnesses and in his judgment, the learned trial Judge observed as follows-
"I now turn to the evidence. I am not going to repeat what each witness said. Suffice it to say that I have carefully considered their evidence. The evidence called by the plaintiffs in relation to the acquisition of the land by Ojo Sango is very much in line with their pleadings. The same can be said of the evidence called by the defendants."
Now let us examine the pleadings in order to see the salient averments said to have been supported by the evidence adduced by the parties. The plaintiffs in paragraphs 3 to 18 inclusive and paragraph 20 of their statement of claim aver as follows-
"3. The land in dispute is shown on plan No. OG 477/80 dated 16th July, 1980 made by Chief S. Akin Ogunbiyi, Licensed Surveyor and is therein edged Red.
4. The land in dispute which was a virgin land was settled upon by Ojo Sango after the Kiriji war and Ojo Sango lived and farmed thereon with his two brothers Abidogun and Sangotayo.
5. Ojo Sango, Abidogun and Sangotayo were the children of ANIKU.
6. Ojo Sango had 8 children namely: Jariogbe, Durowoju, Adeniji, Ajayi, Adedigba, Akande, Idowu and Adeyemo.
7. Ojo Sango during his life time built a hut on the land in dispute where he lived and farmed but the hut is now in ruin.
8. Ojo Sango planted many crops thereon among which were Coca, Kolanuts, Palm trees, Oranges, Agbalumo fruits and all kinds of cash crops.
9. Ojo Sango died several years ago and he was succeeded in the use and management of the farm land in dispute by Abidogun his brother who in turn made some additions to the crops planted by Ojo Sango on the farm land in dispute.
10. When Abidogun died his brother Sangotayo again succeeded to the use and management of the farm land in dispute as did his predecessors in title.
11. Since the death of Sangotayo, Jariogbe, Durowoju, Adeniji, Adedigba at one time or the other have each in succession used and managed the farm land in dispute for the family.
12. Not long ago Adedigba who was the last principal member of Ojo Sango to use the land in dispute died and the 1st Plaintiff came down from Ile-Ife to join the 2nd Plaintiff, the son of Adedigba in the management of the farm land in dispute.
13. A few years ago the Plaintiffs family were challenged by the 1st Defendant who claimed that one AIBINU sold part of the land in dispute to him and invited the Plaintiffs to his office for negotiation and settlement.
14. The Plaintiffs refused to negotiate on any ground in the disposition of their family land as they were not prepared to sell their family land to any-one.
15. The 1st Defendant has since continued to harass the Plaintiffs and other members of their family with Police over the said piece and parcel of land in dispute.
16. Since the harassment of the Plaintiffs the 1st Defendant has on several occasions trespassed on the land by surveying it and planting pillars therein which activities the Plaintiffs have persistently resisted.
17. Sometime in 1978 the 2nd Defendant trespassed on a portion of the land in dispute and when he was challenged, he claimed that the 3rd Defendant sold it to him, and he is now erecting a hut thereon.
18. The 3rd Defendant claimed she owned the land in dispute and as such she disposed part of it to the 2nd Defendant."
"20. The area trespassed upon by the defendants is shown on plan No OG/477/80 dated 16th July, 1980 filed in this suit."
In paragraphs 4, 6 to 20 inclusive of his Amended statement of Defence the 1st defendant alleged-
"4. The 1st Defendant avers that the area verged green was settled upon by conquest by a warrior-Bamimeke Akanbi, during the reign of Basorun Oluyole who ruled Ibadan from 1820 to 1850."
"6. The 1st Defendant will contend at the trial, that giriji (sic) War was fought at Igbajo and will rely on Suit No. 1/288/72-R. Onajobi & 1 other versus Bello Olanipekun and 2 others and on documents concerning the commencement, continuance and termination of Kiriji War; especially the treaty of 4th June, 1886.
7. The 1st Defendant avers that Bamimeke, Allen, Agbongbon, Awopegba, Ogunfaolu and Abogunde who are the boundarymen of the land in dispute and Obisesan alias Aperin, Oderinlo and Ogundepo and others were ordered by Basorun Oluyole to expel the Ijebus who originally settled on the parcel of land starting from Aperin junction in Ibadan Municipality down to River Osun about thirty kilometres from Ibadan in Oluyole local Government Area.
8. The 1st Defendant avers that as a result of the order by Oluyole, the said Warriors drove away and expelled the Ijebus and have since been confined to River Osun.
9. Bamimeke and others thereby settled by conquest on their holdings.
10. Bamimeke remained in an undisturbed possession until his death and the land became Bamimeke family land after Bamimeke's death many years ago.
11. The 1st Defendant avers that the economic trees on the land in dispute were planted at various times tenants who were allowed to farm thereon, especially, Adebisi Abegunde, and his late father.
12. The 1st Defendant avers that the ancestor of the plaintiffs was a MERE Sango priest and the ruined hut belonged to Ogunfaolu, who was the overlord of Ojo Sango and he was only farming on the land at the pleasure of Ogunfaolu, since he was just a customary tenant with all the incidents of customary tenancy. Ogunfaolu and Bamimeke were brothers.
13. The 1st Defendant avers that Bamimeke family in exercising their right of ownership sold their family property to the first defendant in 1970 under native law and custom in the presence of the following witnesses:-
(i) LATE LADEJO ALAGEE
(ii) LATE LAYIWOLA AFIKODE
The receipt of the purchase price was later acknowledged in a document dated 10th October, 1974.
14. The 1st Defendant immediately took up possession and started exercising acts of ownership.
15. In 1976, a deed of conveyance registered as No.45 at Page 45 in Volume 1988 in the Lands Registry, Ibadan, was executed in favour of the 1st Defendant.
16. In Suit No. CV/85/74-Chief Oyelakin Balogun versus Wahabi Asamu Ayorinde, the 1st Defendant successfully sued W.A. Ayorinde, who is nephew to the 2nd Plaintiff. At the trial of the said case, the said Ayorinde claimed that he purchased part of the land in dispute from AIBINU in 1971, a year after Bamimeke family had sold the whole land to the 1st defendant without Aibinu who was then sick. Having realised that the whole family had sold their interest to the 1st Defendant in 1970, Aibinu refunded ten pounds (N20.00) paid by Ayorinde under native law and custom.
17. The said transaction which was under native law and custom was witnesses by:-
(i) MORENIKE ANIKE (the elder sister of 2nd Plaintiff).
(ii) LASISI AKANO (son-in-law of Morenike Anike). The name of Morenike's Daughter who is married to Lasisi Akano is MOLETE.
18. In consequence of the said sale under native law and custom a document in which Aibinu acknowledged the receipt of the purchase price was thumb printed on the 12th day of November, 1971.
19. In the aforesaid document, the boundarymen were described as follows:-
(i) MR. OBAFEBO
(ii) MR. SALAWU FARM
(iii) A STREAM
20. The 1st Defendant will contend at the trial, that Obafebo mentioned in the document was a child of Fehintola who bought the property from Ogunyinka Ogunfaolu. He will contend further that Salawu Farm meant Salawu or Sunmonu Alawaye's farmland and that the stream referred to is the stream shown on the plan filed by the plaintiffs."
For her part, the 3rd defendant pleaded as follows in paragraphs 3 to 14 of her statement of Defence-
"3. Ogunfelu and Bamimeke jointly acquired by settlement and occupation under Yoruba Native Law and Custom the land in dispute (verged "Red" in the Survey Plan attached to Statement of claim) situate at Olunloyo on Akanran Road, Ibadan during the reign of Bashorun Oluyole that is 100 years ago.
4. Ogunfalu and Bamimeke were brothers of full blood.
5. During the life-time of Ogunfalu and Bamimeke, they exercised acts of ownership undisturbed on the land in dispute by planting Cocoa, Palm Trees, Kolanuts, Oranges and vegetables.
6. After the death of Ogunfalu and Bamimeke, they were survived by children including Ogunyinka and Akinola.
7. The children of Ogunfalu and Bamimeke had been in undisturbed possession and exercising acts of ownership undisturbed by planting and reaping various crops like Cocoa, Palm trees, Kolanuts on the land in dispute.
8. The children of Ogunfalu and Bamimeke have sold portions of the land in dispute to various people including the 3rd defendant's mother called Fehintola for the sum of N20.00 in the presence of witnesses.
9. Madam Fehintola has been in undisturbed possession of the land in dispute by planting oranges, Kolanuts, Coffee and maize since the reign of Oba Abasi Aleshinloye of Ibadan.
10. After the death of Fehintola she was survived by the following children namely:-Oguntoyinbo, Ayoola and the 3rd defendant.
11. Oguntoyinbo, Ayoola and the 3rd defendant has (sic) also been reaping and planting oranges, Kolanuts, Coffee and maize on the land in dispute undisturbed.
12. Over 5 years ago, Oguntoyibo, Ayoola and the 3rd defendant in the presence of witnesses sold a portion of the land in dispute to the 2nd defendant for the sum of N300.00 (Three hundred Naira) and who had since erected a building on the land in dispute undisturbed.
13. Over four years ago, the 3rd defendant also sold a portion of the land in dispute to Chief Awotunde.
14. Chief Awotunde has already sold portion of the land in dispute to various people who had erected foundation structures on the land in dispute before this was commenced."
With regard to the evidence of boundarymen called by the plaintiffs, the learned trial Judge found as follows-
"It is significant that all surrounding boundarymen testified for the plaintiffs to the effect that the land in dispute belonged to the plaintiffs' ancestor Ojo Sango. In land matters such as this the evidence of boundarymen should be carefully regarded. While the court will not abdicate its judicial function to boundarymen by accepting their evidence without evaluation and without weighing it along with the rest of the evidence it is manifest that where other facts do not detract from the weight of evidence of boundarymen which is clear and cogent, the evidence of boundarymen carries much weight.
In the instance case Alimi Adisa (2nd P.W.) from Agbongbon family, Lasisi Asa (3rd P.W.) from Bode Asa family, Akinloye Amole (4th P.W.) from Allen family and Popoola Abegunde (6th P.W.) from Abegunde family all gave evidence supporting the plaintiffs' case. Although their evidence as to acts of ownership is rather paltry their assertion that the land in dispute belonged to Ojo Sango remained unshaken in cross-examination. I cannot reject their evidence unless there is anything on the totality of the evidence which makes it unsafe to rely on their evidence." (underlining mine)
The 1st and 3rd defendants did not call their boundarymen as witnesses but led evidence to establish their acts of possession. Learned trial judge held that Ojo Sango built a house or hut on the land in dispute and that he was not a tenant on the land. He made the following direct findings of fact
"The picture which has emerged from the totality of the evidence and which I find as of fact is that (1) Ojo Sango is reputed in the neighbourhood to own the land in dispute and built a hut thereon; (2) Ojo Sango used the land and built a hut thereon: (3) But, Akinola the son of Bamimeke; and Madam Fehintola, the mother of the 3rd defendant, were also present on the land in circumstances which the plaintiffs have not pleaded and which I am constrained therefore to hold are not by grant of the plaintiff's family."
Learned trial judge then concluded his judgement thus-
"The plaintiffs have not shown such exclusive possession as would lend aid to the evidence that Ojo Sango was the owner of the land. I do not find much to choose from between the rival and conflicting evidence of tradition led by the parties. I am however satisfied that the plaintiffs' ancestor owned some yet undefined part of the land in dispute.
Since the plaintiffs have failed to prove exclusive possession of the entire land I cannot find trespass proved. Since, also, the plaintiffs are certainly not in possession of the entire land I do not think it is fit to order an injunction which will cover the entire land."
... In view of the findings I have I made above, I do not think an outright dismissal of the plaintiffs' case will be appropriate
... In the result, I dismiss the plaintiffs' claim for trespass and non-suit the plaintiffs on their claim for declaration and injunction." (underlining mine)
Both the plaintiffs and the defendants felt aggrieved by the decision of the trial judge. They, therefore, appealed and cross-appealed to the Court of Appeal. That Court (Uche-Omo, Omololu-Thomas and Onu JJ.C.A.) found as follows-
1. That learned trial Judge was wrong when "after the finding of fact in support of the appellants' (plaintiff's) traditional history, the trial judge proceeded to consider as against the appellants traditional evidence and acts of possession, the acts of ownership alleged by the respondents (defendants); and in the process concluded that the appellants have not shown such exclusive possession as would lend aid to the evidence of boundarymen to make him safely find on their evidence that Ojo Sango was the owner of the land, even after holding that the appellant can succeed on traditional evidence alone."
2. That 3rd defendant gave evidence concerning a piece of land which was not the same as the land in dispute and therefore the testimony of 2nd plaintiff which learned trial Judge found to have "tended to support" the case of the 3rd defendant did not do so.
3. That "the 1st and 3rd respondents (defendants) filed separate pleadings and presented distinct and separate defences to the action, and the trial judge was wrong, to have evaluated their evidence together. The appellants' (plaintiffs') case would have been better appreciated if he had considered the defences separately as indicated by the pleadings. By his failure to do so he had admitted and made use of inadmissible evidence and had misdirected himself in such a manner as to occasion a miscarriage of justice."
4. That the cases of the 1st and 3rd defendants "viciously conflict and are irreconcilable. The traditional evidence from both are either jointly or severally thus irreconcilable. The trial judge made no effort to reconcile the contradictions, while the appellants' (plaintiffs') traditional evidence remained firm."
5. That the evidence adduced by the plaintiffs was "clear as to the area they claimed and the area trespassed upon.
The learned Justices of the Court of Appeal then held as follows-
"While it is the law that a plaintiff must rely on the strength of his own case and not the weakness of his opponent's case, the determination of the issues could have been preceded by a resolution of the conflicting evidence and issues on the basis of a proper evaluation of all the evidence; in which case the trial Judge would have experienced no difficulty in holding that the traditional evidence of the appellants (which is clear and cogent) is compelling and more probable. It can therefore be said that had he properly evaluated all the evidence before him and drawn the proper inferences he would have come to a different conclusion, as contended by the appellants' Counsel."
They therefore dismissed the cross-appeal. The appeal was allowed in the following terms-"Consequently, this appeal must be allowed.
The judgment of the High Court is therefore set aside, and in its place is substituted a Declaration of the Statutory Right of Occupancy sought in respect of the land in dispute, as claimed, with an award of nominal damages of N50 against each respondent and the 2nd defendant for trespass; and there will be order for an injunction restraining them, their servants, agents and privies, from further acts of trespass to the land.
The appellants are entitled to costs in the High Court assessed at N250, and in this Court assessed at N200 only, against the respondents and the 2nd defendant, jointly and severally."
It is against that decision that 1st defendant has appealed to this Court. Nine grounds of appeal were filed by the appellant and four issues for our determination were formulated in the a