Mogaji Lasisi Atanda & Others v Salami Ajani & Others (SC 197/1987) [1989] NGSC 19 (20 July 1989)

In The Supreme Court of Nigeria

On Friday, the 21st day of July 1989

SC 197/1987


Mogaji Lasisi Atanda        .......                          Applicants

Alhaja Sifawu Ateju

Yesau Akanji

Jimoh Adisa

(For themselves and Adenko Aje Ojoku Family)


Salami Ajani                 .......            Respondents

Tijani Akarimu Iyanda

Alimi Adio

Oseni Taiwo


Judgement of the Court

Delivered by

Craig. J.S.C. 

The plaintiffs claims in the High Court of Oyo State, holden at Ibadan were for:

1.     Declaration of title according to Native Law and Custom to a piece or parcel of land situate at Isale Oje, Ibadan in Oyo State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed in the action.

2.     N 250.00 being general damages for trespass committed by the defendants, their servants or/and agents on the said land on or about July, 1972.

3.     Injunction to restrain the defendants, their servant or/and agents from entering or committing further trespass on the said land.

Pleadings were filed and exchanged, and at the end of that exercise, the matter proceeded to trial before Ayorinde, J. After hearing evidence, the learned Judge held that both parties had a "semblance of title" to the land surrounding the land in dispute, but he dismissed the plaintiffs' claims because

they have not adduced convincing evidence of ownership to the whole area of land in dispute to the exclusion of others…..

The trial Judge also held that the plaintiffs had failed to prove the identity of the land in dispute with certainty

The plaintiffs were dissatisfied with that judgment and appealed to the Court of Appeal, Ibadan.

That court, after hearing arguments dismissed the appeal and affirmed the judgment of the trial court. This is a further appeal against the decision of the lower court.


In this Court, the plaintiffs/appellants have lodged five original grounds of appeal, which I find to be extremely prolix, and I do not intend to reproduce them. However, these grounds appear to have been admirably incorporated in the five additional grounds of appeal which were filed and argued with the leave of this Honourable court. Those grounds are much more succinct and are as follows:


(1)    The learned Justice of Appeal who delivered the lead judgment concurred in by the other Justices of the Court of Appeal, erred in law by holding at page 149 lines 3 to 6 of the Record that "the respondents joined issue with the appellants on the question of possession vide evidence of 1st D.W. and D.W.3," and thus came to a wrong decision in the case.


Particulars of Error:


(a)     It is the principle of the rules of practice and procedure that issues are joined on the pleadings and not on the evidence adduced on behalf of the Defendants. The formulation of issues by a trial court, not based on the pleadings filed by the parties in a case may invalidate the judgment as laid down in the case of Veronica Graham & Ors. p. Lawrence Esumai & Ors. (1984)11 S.C. 123.


(b)     The Appellants having established that their title originated from a rightful owner, namely, Balogun Oderinlo, the question of possession ceases to be a relevant issue in the case and it is a relevant issue only where the evidence of ownership is inconclusive as laid down in the case of Mumuni Abdulai v. Ramotu Manue (1944) 10 WACA 172.


2.     The said learned Justices of Appeal erred in law when, without or any due consideration, they upheld the learned trial Judge's dismissal of the Plaintiffs' claims after the learned trial Judge had found, as admitted by the Defendants' witnesses that the original owner of the land in dispute was Balogun Oderinlo from whom they, the Appellants, claimed to have derived their title to the land as opposed to Delesolu from whom the Respondents claimed to have derived their own title.


Particulars of Error:


(a)    The learned Justices of Appeal merely recited the arguments of the Appellants at Pages 146 to 148 of the Record and summarily dismissed them without due consideration.


3.     The learned Justices of Appeal erred in law in holding at Page 148 line 30 to 34 of the Record thus:-


having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership.


whereas in a case of this nature in which the Appellants established their Succession to the land through an admitted lawful set-tier-owner of the land. The onus lay on the Respondents to dislodge that ownership by cogent evidence as laid down in Ricketts v. Shote (1960) L.L.R. 201 and Mahinmi v. Ladejobi (1960) L.L.R.233.


4.     The learned Justices of Appeal erred in law when they held at Page 151 lines 6 to 12 of the Record that the Appellants failed to discharge the onus of proof on them by reference to the case of Kodilinye v. Odu 2 W.A.C.A. 336 when in law the principle enunciated in that case is not of relevance in this case.


Particulars of Error:


At Page 146 line 22 to Page 148 line 28 of the Record, the learned Justice set down the arguments of the Appellants as follows:-


The respondents in paragraph 5 of their statement of defence averred that the land in dispute forms part of the land granted by Delesolu to Bilekanle, the ancestor of the respondents but 1st D.W. (i.e. 2nd respondent) under cross-examination admitted that Oderinlo granted land including land in dispute to Delesolu originally. That being so, 1st respondent has failed to trace his radical title to Delesolu. In other words, the respondents by their tacit admission that Balogun Oderinlo was the radical owner of the land in dispute from whom they obtained their grant.


        The learned Justices of Appeal erroneously dismissed these and other arguments on the ground of the Plaintiffs' "failure to adduce convincing evidence of exclusive possession of the land in dispute" contrary to the decisions in Mumuni Abdulai v. Ramotu Manue (1944)10 W.A.C.A. 172 and Ricketts v. Shote (1960) L.L.R. 201.


5.     The learned Justices of Appeal erred in dismissing the appeal on the ground that "there was none to choose between the Appellants' as well as the Respondents' case" as per Page 151 lines 11 to 12 of the Record, and the learned trial Judge having found that the original settler-owner of the land including the land in dispute was Balogun Oderinlo from whom the Appellants derived their title, there was no room for holding that there was none to choose between the Appellants' case and the Respondents' case.


In his brief of arguments, Mr. Kehinde Sofola. S.A.N., has set out the following issues for determination:


(1)    Whether the appellants are not entitled to succeed in their claim for declaration of title to the piece of land in dispute and to the other reliefs claimed, the learned trial Judge having found that the appellants proved their radical root of title in Balogun Oderinlo admittedly the first settler on the land, whilst the defendants failed to establish their root of title.


(2)    Whether the learned trial Judge and the Court of Appeal were right to have permitted the respondents to found their claim to title to the piece of land On a grant from Balogun Oderinlo whereas in their pleadings they had alleged that they derived their title from Delesolu, and denied that the said Balogun Oderinlo was the settler on the land.


(3)    Whether having found that the appellants derived their title from Balogun Oderinlo, it was nevertheless necessary for the appellants to establish evidence of recent user by them.


(4)    The appellants having established that their title to the piece of land originated from the first settler and the rightful owner, Balogun Oderinlo, whether the respondents discharged the onus of proof laid upon them by law to dislodge the plaintiffs' claim.


(5)    Whether the Court of Appeal was right to have held that the respondents join issues with the appellants on the question of possession and whether that question nevertheless remains material having regard to the evidence of D.W.1 and D.W.3, the respondents having admitted that the person from whom the appellants derived their title to the piece of land, namely, Balogun Oderinlo, was the first settler on the land contrary to the respondents' pleading.


In his own brief, Mr Aiyedun for the respondents has put the issues differently. In his view, the real issues are:-


(i)     Whether the Court of Appeal was wrong in affirming the decision of the learned trial Judge upon a calm review and meticulous evaluation of the evidence before the court.


(ii)    Whether such findings 6f fact can be lightly set aside by the sup- E reme Court more so as there have been such concurrent findings by the two lower courts.


(iii)   Whether the appellants are entitled to succeed in their claim for declaration of title when their case supported that of the respondents as per the admission of the appellants' key witness, Salami Oyegoke Qderinlo (P.W.6).


(iv)   Whether in law the appellants ought to have succeeded not on the strength of their own case but on the weakness of the respondents' case (if the case of the respondents was weak).


Although the issues formulated by both parties are differently worded, it is quite clear that the appeal herein turns on the facts and the evaluation of these facts. It is not surprising therefore that the respondents' counsel was (i quick to point out this fact and in his oral arguments, he emphasised the point that there has been a concurrent finding of facts by the two lower courts; counsel therefore urged this court not to disturb those findings.


The Supreme Court has in a number of cases laid down the principles governing a review of the facts by an appellate court. Broadly speaking it is the primary function of a trial court, which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them. See Chinwedu v. Mbamali (1980) 3-4 S.C. 31 at page 75 per Obaseki, J.S.C.; Enang v. Adu (1981)11-12 S.C. 25 at 38 per Nnamani, J.S.C.


In this respect, an appellate court is only left with a duty to see:


(a)     Whether there was evidence to support the findings and/or the decision of the trial court.


(b)     Whether the trial court has made a correct assessment of the evidence before it.


(c)     Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial.


(d)     Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.


See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742 Mogaji & Ors. v. Odofin & Ors. (1978)4 S.C. 91


All that this means is that an appellate court will not interfere with the findings of a trial court unless it is obvious that that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it.


See Fashanu v. Adekoya (1974)1 All N.L.R. 35; Woluchem v. S. Gumi (1981) 5 S.C. 319


The main question in this appeal will be to ascertain whether there has been a violation of any of the principles stated above.


The appellants' counsel has attacked the findings of fact made by the trial Judge. First, it was submitted that the findings made were contrary to the trend of accepted evidence, and secondly that tile trial Judge made no findings at all on the principal issue in the case, i.e. the issue as to which party had established title to the land in dispute.


I shall now consider the relevant evidence in the case so as to find out whether there is any substance in the appellants' complaint.


In their statement of claim, the plaintiffs based their claim to the land on a grant by Balogun Oderinlo. The relevant paragraphs of the pleadings are as follows:-


6.     The land in dispute owned by the plaintiffs is situate at Adenko Compound, Isale Oje, Ibadan and is the area verged green in survey plan No. AD 96(73 drawn by Licensed Surveyor, M.A. Adeoti, Esq., on 23/5(73 and duly countersigned by the Surveyor General on 6/8/73 and is attached to this statement of claim.


7.     During the reign of Bashorun Oluyole, Balogun Oderinlo granted absolutely to Adenko Aje Ojoku a large portion of land at Isale Oje, Ibadan embracing (1) the area verged yellow (2) the area verged blue and (3) the area verged red including the land in dispute verged green in survey plan AD 96/73.


8.     The said Adenko Aje Ojoku, plaintiff's ancestor, was a warrior under Balogun Oderinlo and lived with Balogun Qderinlo at Mapo, Ibadan fill the time he was granted the said parcel of land at Isale Oje.


9.     The said Adenko Aje Ojoku was also Elegun Sonponna to Balogun Oderinlo and as worshippers of Orisa Shonponna, buried those who died of smallpox and confiscated their properties.


10.    The land given to Adenko by Oderinlo was a portion of a large parcel of land originally settled on by Oderinlo and the land given to Adenko stretches to Ajedi Stream because the bank of the stream was used to bury those who died of smallpox.


11.     Adenko upon taking possession of the land granted by him exercised several and numerous acts of ownership during his lifetime.


12.    Adenko was granted his portion of land including the land in dispute by Balogun Oderinlo long before Delesolu was sent by Oderinlo to go and live at Oje, granting him Delesolu (i) the remaining land (left after the grant to Adenko and used by Oderinlo for farming) and also (2) a house of 70 rooms (which Oderinlo built for the purpose of living in it himself, but was prevented by Bashorun Oluyole from moving into it).


13.    Adenko granted a portion of land given him by Oderinlo to (1) Ojo Ofoke and (2) Pabiekun who were also warriors under Balogun Oderinlo and the said portions are clearly marked out in Survey Plan AD96!73 verged blue and yellow respectively.


14.    The plaintiffs family have been in undisputed and unchallenged ownership and possession of their land for over one hundred years.


16.    Beginning from our ancestor Adenko, successive heads and members of our family planted and reaped cocoa, palm trees, sugar cane, vegetables and other economic crops on the portion of the land granted Adenko.


In other parts of the statement of claim, the plaintiffs stated that the defendants owned the land adjacent to theirs and in particular they pleaded that:-


25.    It was Delesolu who granted Bilekanle Ayondioro, the ancestor of the defendants, out of the land granted him by Balogun Oderinlo, the portion of land forming boundary with the land granted to Adenko and shown in the Survey plan as Ayondioro family land.


26.    Delesolu also granted out of the land granted him by Balogun F)' Oderinlo portion of the land to Akingbeju family forming boundary with the land granted to Adenko.


27.    About July 1972, the defendant trespassed into the land in dispute and started to uproot stone foundation of a building being put up by Raji and his brothers to whom our family had given permission to build the house on our family land.


28.    We warned them to stop forthwith their trespass but as they continued to commit trespass on more and more of our family land we sued them to court in CV/97/72 at the Ibadan City Grade A No.1 Customary Court, Mapo Ibadan for declaration of title, damages for trespass and injunction.


29.    In the said Suit CV/97/72 the plaintiffs and witnesses gave evidence and in particular the present head Balogun Oderinlo gave evidence for the plaintiff confirming the grant to Adenko our ancestor of the said parcel of land including the land in dispute before the grant by Balogun Oderinlo of the remaining land and house at Oje to Delesolu.


30.    The defendant called two witness including a member of Delesolu family who admitted Balogun Oderinlo as the radical owner and root of title to the land in dispute.


In their statement of defence, the defendants denied all these averments and put the plaintiffs to the strict proof of them. In particular, they denied that Balogun Oderinlo was the original owner of the land in dispute, and averred that:


4.     The defendants aver in respect of paragraph 6 of the statement of claim that the land in dispute is situate at Ayondioro's Cornpound Isale-Oje, Ibadan.


5.     The defendants aver that the land in dispute forms part of the land granted by Delesolu to Bilekanle the ancestor of the defendants.


6.     The area of land granted to the defendants' ancestor stretches from the Alafara-Oje Road, to the Ajedi Stream.


7.     The defendants deny paragraph 7 of the Statements of Claim and aver that the plaintiff is a member of Ojo-Ofoke Family and that one Akingbeju brougbt Ofoke (his stranger) to Bilekanle to ask for land to build living House on.


8.     The equivalent of 4 plots were granted to the said Ofoke for the purpose of building a House.


9.     Ofoke later brought Adenko the ancestor of the plaintiffs to Bilekanle also to ask for a small portion of land to build a House on and was granted an area not more than 100'. by 100'.


10.     The plaintiffs' family has since begun to enlarge on their holding without the consent of their grantors the defendants.


15.    Adenko had only 2 plots of land about '100 by 100' within Ofoke Compound and it was only over this portion that he was allowed to exercise a right of ownership, while the defendants have always exercised exclusive right of the ownership over the land in dispute.


16.     Ofoke is the head of the plaintiffs family Adenko being his junior brother.


17.    In 1961 when the plaintiffs family attempted to extend their holding by trespassing onto the land in dispute the defendants' family instituted action in Suit No.3/61 at the Ibadan, No.3 Grade 'B' Customary Court against Kofoworola Amole, head of the Ofoke (plaintiff's) family.


26.    Bilekanle was the original grantee of Delesolu and the 1st HEAD of the Ayondioro family.


28.    Although the defendants family compound was originally called Belekanle's compound, it became known as Ayondioro's compounds as a result of the popularity in Ibadan at the time, Ayondioro (Alias Elegen Sango) an ancestor of the defendants.


In regard to the suit pleaded in paragraph 28 of the Statement of Claim, the defendants' reaction was that:


29.   Following the judgment of the Supreme Court which gave ownership of the land in dispute to the defendant and in the exercise of their legal rights over the land in dispute, the defendants sold a number of plots including the foundations of Muritala Akangbe (son of Ojo-foke) to divers persons without any interference from anyone.


30.   The defendants did not trespass. but were exercising their legitimate right over the land in dispute when the suit No. CV/97/72 was instituted.


31.    The defendants shall rely at the trial of this case on all documents relating to the earlier cases over the land in dispute.


It will be seen that at the close of the pleadings, the main issues which the trial court had to decide were:


1.     Who was the radical owner of the disputed land, - was it Balogun Oderinlo as alleged by the plaintiffs or Delesolu as pleaded by the defendant?


2.     To whom was the land in dispute granted and by whom?


3.     Is it true that the Supreme Court had declared the defendants to be the owners of the land in dispute? - The answer to this last question is that no such judgment was produced or tendered before the trial court.


In regard to the 1st and 2nd issues, the plaintiffs gave evidence of their root of title through the 5th and 6th P.W.s The 5th witness Busari Oderinlo, was a descendant of Balogun Oderinlo, and he testified as follows:


I know the land in dispute. The land belongs to Adenko Aje Ojoku Family. Oderinlo granted Adenko the land in dispute during the time of Oba Oluyole, Bashorun of Ibadan. The bound- aries of the land granted by Oderinlo was ……………


When he was cross-examined, he said:


The piece of land which Oderinlo gave to Adenko is fairly large. The length or breadth of the land is not up to a mile.


In his own evidence, the 6th witness, Salami Oderinlo, who was said to be the Mogaji of Oderinlo family stated as follows:


I know the land in dispute. The land belongs to Adenko who was granted the land by Oderinlo my great grand father. Oluyole was the Bashorun of Ibadan when Oderinlo granted the land to Adenko. The boundary men of Adenko were Ayondioro, Tafa Alakia …………. Oderinlo was a soldier …………… Delesolu was a soldier in the army of Oderinlo when there was a quarrel between Oluyole and Oderinlo, Oderinlo built a seventy room house at Oje ………. He (Oderinlo) therefore sent Delesolu to go and live in the house …………. Oderinlo had earlier granted all the land near the seventy room house to Delesolu in addition; this was how Delesolu could grant lands to Ayondioro and Gbeju.


When cross-examined he denied that he had said in an earlier suit CV/97/72, before the Grade 'A' Customary Court, Ibadan - see page 4 of Exhibit 'B' in these proceedings - that the land which Oderinlo gave to Delesolu extended from Oje to Alafara Stream, or that it was Delesolu who granted the land in dispute to the plaintiffs. In addition to this, the 3rd and 4th P.Ws also gave evidence confirming the grant to Adenko by Oderinlo.


In proof of their own root of title, the defence called two witnesses. The 1st D.W. was in fact the second defendant, Tijani Akangbe, in the case. This is what he said:


I know the land in dispute. The land in dispute belongs to Bilekanle, Ayondioro family ………. The defendants' ancestor Bilekanle Ayondioro was granted the land in dispute originally by one Delesolu. The original land granted by Delesolu to Ayondioro by Alafara Oje Street would be about 1½ to 2 kilometres long.


Under cross-examination, the witness said:

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