In The Supreme Court of Nigeria
On Friday, 4th day of May 1990
SC 178/1988
Between
David Oye Olagbemiro ....... Appellant
And
Oba Oladunni Ajagungbade III ....... Respondents
Ogbomosho Local Government
Judgment of the Court
Delivered by
Bello. C.J.N.
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 19i4 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 E 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 gravarnen 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 Oghomosho is G 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 r8ferred 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 Muslim for the building of the Ansar-Ud-deen School, Masifa Oghomosho, 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 Oba Olatunji Elepo II as Shoun of Ogbomosho to Oghomosho Local Government Council for the use of the Oghomosho Community in 1954 out of the large piece of land granted by his Predecessor to the Muslim 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 Oghomosho 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
(b) The land of the Saint David's Anglican Church, Sabo, Oghomosho 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. Sat page 5 in volume 1111 of the Lands Survey, 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 paragraphs 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 kilometre from the land in dispute.
Thereafter, the 1st defendant counter-claimed the whole area verged Red on his survey plan LL-8110 which includes 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 Oghomosho.'
Defence to Counter-Claim
3. As to the Counter-claim, the Plaintiff will contend at the trial that the subject matter in the CounterClaim is not competent before the Court as the Plaintiff has never claimed the whole of the land shown on Plan No. LL 8110. Save and Except as herein-before expressly admitted the Plaintiff denies each and every allegation of fact contained in the defendant's Counter-claim as if each has been set out separately and denied seriatim.
After having considered the evidence adduced by the parties and submission of counsel, the trial Judge found:
(1) that the Layode family sold the land in dispute to the plaintiff under the Deed of Conveyance, Exhibit A and that the said family had sold several parcels of land to several persons including the defendant as per Exhibits B, C, D, E, F and F2
(2) that the different Ruling chieftaincy families in Ogbomosho have their own separate land and distinct from any land which can be regarded as Royal Estates. These so called Royal Estates are vested in the person of the official head to certain ruling houses and to important chieftaincies by right of first occupancy or conquest as in the case of royal families whose heads originally founded the new site or subjugated the former occupiers.
(3) The evidence of 2nd defendant witness and 5th Defendant witness support the fact that some land in Oghomosho are attached to the title of the Shoun as distinct from other land owned by various ruling houses and individuals. The claim by the Shoun and one of his witnesses that all land in Ogbomosho belong absolutely to the reigning Shoun cannot hold good in view of the various Deeds of Conveyance tendered by the Plaintiff in which the present Shoun is beneficiary having bought in fee simple before he became the Shoun. His explanation that those who sold land to him at that time sold in their private capacities as princes cannot be true in view of the recitals in Exhibits C, D, & E. If the custom existed in the reign of the 1st Shoun, it is difficult to believe that it does thereafter, especially when various Ruling houses had been created in Ogbomosho after the reign of the 1st Shoun.
(4) Exhibit J and J1 made on 24 August, 1972 and 7 September, 1972 respectively show that all the Modes (Princes) of Oghomosho participated in the conveyance of the several parcels of land to the Ogbomosho District Council. Among the property conveyed in Exhibit J was the Divisional Office and Field in Front.
Having regard to the evidence that the land in dispute is situated in front of the Divisional Office, the trial Judge was unable to find whether the land is within the Field in Front of the Divisional Office, which Exhibit J shows to be within the joint control of all the Modes. Her observation in this respect is as follows:
As at the time the meeting in Exhibit J1 was held on 7th September, 1972, the land in dispute which from the plan Exhibit 'A' is the land in front of the Divisional Office had not been sold to the Plaintiff. There is no specific mention of the field in front of the Divisional Office in Exhibit J1 as was done in Exhibit J at an earlier meeting.
"In view of the fact that there is no comprehensive plan of the entire land belonging exclusively to the Layode chieftaincy family before the Court, it is difficult to distinguish the land conveyed to the plaintiff from the adjacent land which are under the control of the Modes who seem to have joint authority over the properties to be conveyed to the Council. This is very essential in view of the fact that parties have joined issues in their pleading on question of absolute ownership of the land in dispute by Layode family.
Finally, the trial Judge found the traditional evidence of the parties to be inconclusive and the plaintiff did not prove acts of ownership. However, she did not dismiss the plaintiff's claim but granted a non-suit on the grounds that the plaintiff's vendors had been shown to have some interest in the land in dispute although exclusive ownership was not proved by them and that a document, identification X5 which was a copy of a letter dated 20 March 1973 written by one Otunla, the Inspector Divisional Officer for Oshun North-West Division, to the Secretary of the District Council Ogbomosho was not tendered in evidence by the plaintiff. The trial Judge found the failure to put the letter in evidence as an Exhibit "created a missing link in the claim of Plaintiff's evidence."
In a cursory manner, the trial Judge dismissed the counter-claim of the defendant on the simple ground that by his own pleadings and evidence the defendant showed that the late Oba Olatunji Elepo II as Shoun had granted the land in dispute to the Ogbomosho Local Government Council for the use of the community and the Council is still in possession and has been using it for the Health Centre and has been cutting the grass thereon. Consequently, the defendant, who was not in possession could not sue in trespass.
The 1st defendant was not satisfied with the judgment and he appealed A to the Court of Appeal against the order of non-suit and the dismissal of his counter-claim. The plaintiff also cross-appealed against the non-suit order but he subsequently abandoned the cross-appeal. Apart from filing Statement of Defence, the 2nd defendant ~ad not participated at the trial and did not appeal against the judgment of the trial court.
In a well considered judgment delivered by Ogundare, J.C.A., B Nnaemeka-Agu, J.C.A., as he was then, and Sulu-Oambari, J.C.A., concurring, after having stated the law relating to the granting of non-suit and the findings of facts made by the trial Judge that the Layode chieftaincy family through whom the plaintiff claimed had not established its title to the land in dispute either by traditional evidence or by acts of ownership, which were neither pleaded nor proved by evidence, the learned Justice observed thus:
The first reason given by the learned trial Judge for entering a non-suit in plaintiffs favour is that plaintiffs vendors were shown to have some interest in the land in dispute although exclusive ownership was not proved by them. Surely if they did not have exclusive ownership they could not pass any title to anyone else just as a member of a family cannot pass title to a third party in respect of family land sold by him. Such alienation is just void under customary law. The fact that it was necessary for the principal members of the five ruling families to deliberate, as they did in Exhibits J and J1, on issues of lands in the vicinity of the land in dispute and, indeed, including the land in dispute is clear evidence that the Layode family could not by itself alone E dispose of the land in dispute.
The second reason was plaintiffs failure to put in evidence a document tendered for identification. As the document was not in evidence it is clearly wrong of the learned trial Judge to speculate on its contents or the effect it would have on plaintiffs case. And if the failure to tender that document could not be placed on plaintiffs doorsteps, on whose doorsteps should it then be placed? Certainly, not on the defendants' doorsteps.
In the light of my comments on the reasons given by the learned trial Judge for entering a non-suit, it is my view that a great injustice would be done to the defendants if the order of non-suit was not reversed.
In conclusion, it is my view, and I so hold, that in the light of the evidence and the findings of fact it was not a judicial exercise of discretion to enter a non-suit in favour of the plaintiff; his claims ought to have been dismissed.
Accordingly, the Court of Appeal allowed the appeal against the order of non-suit and substituted therefore an order of dismissal of the plaintiffs claim.
It is relevant to point out that the defendant had appealed to the Court of Appeal against both the order of non-suit and the dismissal of his counterclaim upon one origininal ground of appeal and with the leave of that Court, seven additional grounds. In his judgment, Ogundare, J.C.A., had this to say:-
It is pertinent to mention that the seventh additional ground is the same as the original ground which is that "the judgment is against the weight of evidence.
Consequently, the main argument was canvassed on the omnibus ground.
At the commencement of his judgment dealing with the counter-claim, Ogundare, J.C.A., stated: "I shall deal first with the defendant/appellant's claim for declaration of title" (italics mine) and he then proceeded to reproduce extensively the evidence adduced by the defendant and his witnesses and concluded thus:
It is the traditional evidence adduced by these witnesses that the learned trial Judge found to be "inconclusive." I cannot see how the totality of that evidence taken along with the admissions made by some of the witnesses for the plaintiff, including the plaintiff himself, can be said to be inconclusive. Apart from the fact that partition was never pleaded by the plaintiff it cannot even be said that a finding that there was partition of Ogunlola's land among the five Shoun ruling families could be made from the evidence adduced for the plaintiff. Had the learned trial Judge addressed her mind properly to the evidence before her she could not have found, as she did, that the traditional evidence adduced for the defence was inconclusive.
Furthermore, the learned Justice proceeded to consider the evidence relating to the facts in recent years to find out which of the two competing set of facts was the more probable. Thereafter, he reviewed and evaluated the evidence exhaustively and concluded as follows:-
On a calm view of the evidence as a whole, the only reasonable inference, in my humble view, that can be drawn is that the traditional history put forward by the defence is the more probable and judgment ought to have been entered in defendant/appellant's favour on the counterclaim for declaration of title. This is moreso as the District Council no longer uses the land for the purpose for which it was granted to it, that is, as parade ground for the Local Government Police since the abolition of this Force in 1967. There has been a reversion to the grantor, the Shoun of Oghomosho - see: Ajao v. ikolaba (1972)5 S.C. 58.
For the foregoing reasons the Court of Appeal allowed the appeal and centered judgment for the 1st defendant in these terms:-
(1) Declaration that the 1st defendant is entitled to a statutory right of occupancy in respect of the land edged yellow on Plan No. LL8110 - Exhibit K;
(2) N500 general damages for trespass committed by the Plaintiff on the said land; and
(3) An injunction restraining the plaintiff, his agents or servants from committing further acts of trespass on the said land edged yellow on Plan No. LL8110 - Exhibit K which is the same land as the one edged red on Plan No. OB 2705- Exhibit H in these proceedings.
The plaintiff was not satisfied with the decision of the Court of Appeal A and has appealed to this Court upon six grounds of appeal. I find it convenient to start with the ground of appeal No.6, which reads:
The learned Justices of Appeal erred in law in granting the Respondents' Counter-Claim for declaration of title, trespass and injunction when the claims were clearly incompetent.
Particulars of Error
1. Sections 1 and 34 of the Land Use Act, 1978 debar the Respondents from claiming the land in dispute by relying on allodial title.
2. While the Respondents Counter-Claim was based on allodial title in a representative capacity, the Court of Appeal granted absolute title to the Respondent in his personal capacity.
3. The judgment as to declaration of title in a personal capacity granted by the court was neither claimed nor pleaded. (Italics mine)
In his oral submission, Chief Williams, S.A.N.. for the plaintiff adopted his Brief wherein he had contended that the defendant was not entitled to declaration of title, which he had not asked for in his pleadings. and was not also entitled to the same having pleaded and confirmed by his evidence that the land in dispute had been granted to the Oghomosho Local Government Council. Learned counsel relied on Sanyaolu v. Coker [1983] 1 SCNLR 168 at 181.
In response, Dr. Ajayi of counsel for the defendant submitted in his Brief that in the present appeal an extensive reviewing and re-appraisal of F the evidence by the Supreme Court would, as already done by Ogundare, J.C.A., be equally warranted in the light of the reasons given by the Court of Appeal. Thereafter, in meticulous details learned counsel reviewed the evidence and cited several authorities before contending that as in the case of Sanyaolu v. Coker (supra) the evidence before the Court would not support any conclusion that the land in front of the District Officer's Office which is the land in dispute, is one to which the defendant as Shoun no longer has any title because one of his predecessors in office had divested the Shoun of such title. He submitted that the point about the previous divesting of the defendant's title could not therefore properly have formed a basis for any decision of the trial Judge dismissing the defendant's claim. upon further review of the judgment of the Court of Appeal, Dr. Ajavi submitted that that court was right to have entered judgment for the defendant.
I agree with the submission of Chief Williams, S.A;N., that the defendant averred in his pleadings and asserted in his defence that the land in dispute had been granted to the Ogbomosho Local Government Council. Paragraphs 7 and 8 of his amended Defence may be reiterated:
7. The land now in dispute forms part of the land which the late Oba Olanipekun Laoye II as Shoun of Oghomosho granted to the Ogbomosho Muslim 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 Ogbomosho 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 Muslim in paragraph 7 above.
On the issue, the defendant testified as follows:
Shoun Elepo Oba Olatunji gave the land in dispute to Ogbomosho Local Government Police in 1954 to be used as Police Barracks and Parade grounds. The Local Government uses the place now as the Health Office. (Italics mine).
D.W.1., who in 1963 to 1966 was the Secretary to the Ogbomosho District Council and now is the Secretary to the defendant also stated in his evidence relating to the land in dispute thus:
I met the Local Government Police on that spot in 1963 and I left them there in 1966.1 know that the land belongs to the Council because Local Government Police was part of the Council. We were maintaining the land sending labourers to the place.
It is transparently clear that the late Shoun divested the office of Shoun of the title over the land in dispute, if in fact Shoun had such title, by its grant to the Council, which is still in possession. That being the case, the defendant as Shoun is not entitled to a declaration of title over the land in dispute even if he is right in his claim that the land in dispute belonged to Shoun: