In The Supreme Court of Nigeria
On Friday, the 4th day of May 1990
SC 26/1988
Between
Princess Bilewu Oyewunmi ...... Appellants
Oba Ladunni Oyewunmi Ajagungbade III
And
Amos Owoade Ogunesan ....... Respondent
Judgment of the Court
Delivered by
Andrews Otutu Obaseki. J.S.C.
This appeal concerns land at Ogbomoso and raises the important issue of the customary law governing land ownership among the indegenes of Ogbomoso. The importance of this issue lies in the fact that the traditional Ruler of Ogbomoso who goes by the title of The Shoun of Ogbomoso figures prominently in this litigation and contends that under the Ogbomoso customary law, all lands except those already granted or transferred by himself or his predecessors in office are vested in him as Shoun to the exclusion of all other persons. He agreed with the contention of the respondents that there are five Ruling Houses each with vested right of producing a candidate for the office of Shoun in rotation but debunks and vehemently opposes the contentions of the respondent that each of these Ruling Houses own and controls large tracts of land since the 1st Shoun Ogunlola. His adherence to the concept of Shoun's ownership of all lands (even though in trust for the people of Ogbomoso) and attempt to enforce his rights in accordance with that concept of Ogbomoso customary land tenure law naturallv has brought him into conflict with those who hold the contrary view of Ogbomoso customary land tenure law. This appears to be the genesis of this case.
The respondent instituted these proceedings in the Oshogbo Judicial Division of the High Court of Justice. Oyo State of Nigeria on the 18th day of June, 1980 by a writ of summons endorsed with the following statement of claim.
The plaintiffs' claim are as follows below:
(a) The sum of N2,000.00 being damages for trespass which the defendant, her servant and/or agents have since the 7th day of June, 1980 been committing when the defendant, her servants and/or agents wrongfully entered and destroyed plaintiffs' properties on plaintiff's piece or parcel of land which is in plaintiff's possession, situate, lying and being at slaughter slab area, Sabo Quarters, Ogbomoso, Oyo State of Nigeria which said piece or parcel of land is particularly described and delineated and edged 'RED' on plan No.AB8272B attached to a Deed of Conveyance dated 2nd day of October, 1975 of the lands Registry at Ibadan, Oyo State of Nigeria.
The annual rental value of the said land is N100.00 (One hundred Naira).
Subsequently, the 2nd appellant. on his application, was joined or added as 2nd defendant by the order of the High Court and the ground of his application appeared in paragraphs 1, 2, 3, and 4 of his affidavit in support of the motion which reads;
(1) I am the Natural Ruler of Ogbomoso and the defendant is my niece;
(2) I am by tradition and custom of Ogbomoso the person in whom title to all Ogbomoso land is vested in trust for the people of Ogbomoso including the land in dispute;
(3) All land in Ogbomoso including the land in dispute is stool land and I am the only person entitled to (before the coming into force of the Land Use Act of 1978) make grants of land to any member of Ogbomoso community who requires land;
(4) In 1974, I had a parcel of land along the Ilorin Road surveyed and a plan thereof prepared. and from the land thus surveyed, I made a grant of a portion to the defendant in exercise of my right as Shoun of Ogbomoso.
(7) In paragraphs 3, 4, 5, 6, 18, l9, 20, 2l, 23, 24, 27, 28, 29 and 30 of the statement of claim. the plaintiff made claims inconsistent with my title to all land in Ogbomoso and in particular to the grant I made to the defendant.
(8) The plaintiff also falsified the Native Law and Custom of Ogbomoso in land matters.
After the joinder was ordered, pleadings were filed by the parties i.e. the plaintiff and each of the two defendants. The 1st defendant filed not only a statement of defence but also a counter-claim for:-
(1) A declaration that the first defendant is the person entitled to a statutory right of occupancy on and over the land in dispute shown in Plan No. OD.4529A & B dated 21st December, 1979, made by Surveyor 0. Bangbose and verged Red therein and marked ''A''
(2) The sum of N5,000.00 (five thousand Naira) being damages for trespass alleged herein;
(3) A perpetual injunction restraining the plaintiff, his servants and H agents from entering the land in dispute or in any way permitting acts of trespass therein.
At the close of pleadings, the issues joined were tried by Ademakinwa, J. At the conclusion of evidence and addresses of counsel on 7th February, 1983, he adjourned for judgment and on the 21st day of March, 1983, he delivered a well considered judgment in favour of the plaintiff. In the course of his judgment, the learned trial Judge said (dealing with the counter-claim).
The judgment in Ajao's case has not, in my view, established the status of all land in Ogbomoso. Native Law and Customary Law derives its force to the extent that it reflects accepted usage in the community. (see Owonyin v. Omotosho (1961) All NLR.304 at p.309). And perhaps more importantly, the findings as to native law and custom in earlier cases are not precedents for subsequent cases (see Odunsi V. Ojora) (1961) All NLR. 283 at 287). Furthermore, judicial notice would only be taken of native law and custom and which is of such notoriety and frequently followed by the courts (see Abiodun v. Erinmilokun (1961) All NLR.294 at p.296).
In the present case, it would appear reasonable to say that native law and custom, which the 2nd defendant did not get to know of until he became the Shoun of Ogbomoso in October, 1973 could not be said to be of any notoriety at all. Similarly, it would not be said that the custom had been frequently followed. Indeed, my learned brothers, Sijuwade, J., in suit No. HOS/89/76 Prince Okanlawon & Ors. v. Gabriel Olayanju & Ors. (unreported) and Ibidapo-Obe, J., in suit No. HOS/104/76: Maria Bankole v. Alhaji Salami Bala & Ors. (unreported) have had cause severally to examine the claim that by native law and custom all land in Ogbomoso is vested in the Shoun in trust for the community but came to conclusion that such a claim is not supported by the facts of history in Ogbomoso. From the evidence adduced before me in this case, I cannot but come to the same conclusion. That being the case, I must hold and I so do, that the second defendant had no title to the land in dispute which he could validly pass on to the 1st defendant. As the saying goes "Nemo dat quod non habet. Nobody gives what he does not have. It follows therefore that the 1st defendant's counter-claim for declaration that she is the person entitled to statutory right of occupancy in respect of the land in dispute based as it is on the non-existent title of the 2nd defendant must fail and it is hereby dismissed.
On the plaintiff's claim, the learned trial Judge said:
Be that as it may, there is still the need to examine the evidence adduced by the plaintiff in support of his claim for trespass. I must say in this respect that the traditional evidence adduced in support of the plaintiff's claim was not altogether satisfactory.
It was therefore not shown how what was originally common property of Kumoye and other children of Jegioro came to be divided among only five sons of Kumoye, the fact that the descendants of the five sons of Kumoye came to be the five ruling houses of Ogbomoso notwithstanding. However, it is an established principle of law that where the traditional evidence is inconclusive, the plaintiff may still fall back on acts of (ownership and) possession exercised on the land (see Ekpo v. Ita 1 NLR.67; Idundun v. Okumagba (1976)1 NMLR. 200 at p.210). One fact that cannot be ignored or denied is that the Odunaro/Layode family had for a considerable length of time exercised in respect of land in Sabo area of Ogbomoso, of which the land in dispute forms part, acts of ownership which, in my view, are positive and numerous enough to warrant a presumption of ownership being invoked in their favour .
It is the plaintiffs case that he bought the land from the Odunaro/Layode family under native law and custom in 1959 and obtained a purchase receipt (Exhibit B) from the family. It shall be mentioned that a sale of land evidenced by receipt is not a transaction known to native law and custom (see Ogunbambi v. Abowab (1951)13 W.A.C.A. 222). The requirements for the transfer of an absolute title in land under native law and custom are that the grant or sale must have been concluded in the presence of persons who must also witness the handing over of the land (see Taiwo v. Ogunsanya (1967) NMLR.375 at page 379). The evidence adduced by the plaintiff has, in my view, established the required ingredients of a valid sale under native law and custom and I must hold that the title to the land in dispute has passed to him under native law and custom since 1959
The plaintiff in this case has proved that his title to the land in dispute is much better than that of the 1st defendant. He is therefore, in my judgment, entitled to succeed in his claim for trespass. He is also in the circumstances entitled to the order of injunction sought to protect his interest in the land. By the same token, the first defendant's claim for trespass and injunction must fail and they are hereby dismissed
In the result, the plaintiffs claims succeed and he is hereby awarded against the defendants the sum of N250.00 being general damages for trespass committed on the land in dispute. The defendants, their servants and/or agents are hereby restrained from further acts of trespass on the land in dispute. The 1st defendant's counter-claim is hereby dismissed.
The defendants were dissatisfied with the judgment and so they appealed to the Court of Appeal. Five grounds of appeal were set out in their notice of appeal as follows:-
(1) The learned trial Judge erred in law in not giving effect to (i.e. in actual fact overruling) the binding decision of the Supreme Court in Ajao v. Ikolaba (1972) 2 All N.L.R. (Part 2) 46 which
(i ) decided in rem the status of Ogbomoso land;
(ii) restated the principles of Ogbomosho Land Tenure; and
(iii) is otherwise applicable in the case.
(2) The learned trial Judge erred in law in granting the plaintiff's claims when the plaintiff failed to establish the foundation of his title i.e. that Kumoye during his lifetime divided all Ogbomoso land among his five children.
Particulars
Available evidence was that Kumoye had many brothers living at the time and that a distribution of Ogbomoso land among his children in the circumstances was contrary to all accepted principles of customary law and could not and did not take place
(3) The learned trial Judge erred in law in giving judgment for the plaintiff when the plaintiff did not establish that the land in dispute was that which he claimed was granted to him by means of exhibit 'B' in the case
(4) The learned trial Judge erred in law in his approach to the documents of grant tendered in the by the plaintiff, in that he failed to appreciate that the document did not establish the title of Layode's family to the land in dispute or to any other land as pleaded or at all.
Particulars
(i) The recitals in the documents conflict inter se and with the root of title pleaded by the plaintiff.
(ii) The second defendant offered reasonable and credible evidence of the transactions affecting them;
(5) The learned trial judge erred in law in not deciding the issues raised in the counter-claim.
The appeal came up for hearing before the Court of Appeal holden at Ibadan (coram, Uche-Omo, Omololu-Thomas and Sulu Gambari, J.J.C.A.). After hearing counsel in oral argument in expatiation of the submissions in the briefs of argument filed by the parties, the court gave a well considered judgment dismissing unanimously, the appeal. The lead judgment concurred in by Omololu-Thomas, J C. A. and Sulu-Gambari. J C. A. was delivered by the learned Justice of the Court of Appeal, Uche-Omo, J.C.A. In the judgment, the learned Justice spared no effort to examine every issue contested before the Court of Appeal. He was meticulous in the treatment of every issue and lucid in the decision on every issue and in his closing paragraphs said:
What is more the learned trial Judge carefully considered the competing titles of the parties and found for the respondent. He also made specific findings on the issue of trespass against the 1st course open to the trial court therefore was appellant. The only course open to the trial court therefore was to dismiss the counter-claim.
In conclusion, all the grounds urged in the appellant's brief and argued before us here having failed, this appeal is hereby dismissed with costs in favour of the respondent assessed at N300.00 to be paid by the appellants.
The defendants were still dissatisfied and so appealed against the decision of the Court of Appeal to the Supreme Court. The grounds of appeal, the arguments and submission advanced by counsel on behalf of the parties both in their briefs of argument and orally will now be considered for this judgment. Six grounds of appeal were set out in the notice of appeal filed by the defendants/appellants and without their particulars, they read as follows:
(1) The Court of Appeal erred in law in refusing to apply to the appeal the legal effect of the Supreme Court judgment in Samuel Ajao v. M. O. Ikolaba (1972) 1 All NLR. (Part 2) 46 and to come to a conclusion on it.
Particulars - Omitted
(2) The Court of Appeal misdirected itself in law when it held as follows:
In the light of these statements of the law by the learned Justice of the Supreme Court, the case of Odofin v. Ayoola at its highest can be said to have decided that where traditional evidence is totally rejected, evidence of acts of ownership cannot be relied upon to support a claim for title, but where it is merely inconclusive the party claiming title can rely on positive acts of ownership over a sufficiently long time per Ekpo v. Ita to establish his claim and by reason of this misdirection refused to allow the appeals of the appellants and to grant the first appellant's counter-claim.
Particulars - Omitted
Court of Appeal misdirected itself in law when it held as follows:
While it is true therefore that the Supreme Court agreed with the parties in Ajao v. Ikolaba that all the lands in Ogbomoso belongs to the Shoun of Ogbomoso, the head of Ogbomoso who holds all the land in trust for his people ......vide Giwa (Abiodun v. Erimilokun (1961) All NLR. 290 (297).
Particulars - Omitted
(4) The Court of Appeal misdirected itself in law when it held:
(i) In arguing ground 2 learned counsel for the appellants correctly submitted that the plaintiffs/respondent's title was anchored on that of the Layode (Odunaro) chieftaincy families It was therefore not shown how what was originally a common property of Kumoye and other children of Jegioro came to be divided only among five sons of Kumoye . Because of this, he was not satisfied with the plaintiff's traditional evidence .. He therefore proceeded to consider whether title had otherwise been established by the plaintiff/respondent.
(ii) It may well be that there was a time in the distant past when Shouns of Ogbomoso exercised rightly or wongly such powers over Ogbomoso land If the 2nd defendant/appellant wants to change the present custom, he will be well advised that the best course is not litigation with his subjects, but by common consensus of his people.
Particulars - Omitted
(5) The Court of Appeal misdirected itself in law when it failed to allow the appellant's appeal on the ground that the respondent failed to prove that the land in dispute is the same land over which he asserts title, after holding as follows:
This (i.e, the complaint in ground 3) is based on the correct observation that whilst the 1959 memorandum of sale, Exhibit B tendered by the respondent shows the land sold to him to measure 100ft x 100ft., the plan filed by him in support of his case - Exhibit A, which agrees with the plan attached to his 1975 conveyance - Exhibit C gives the measurement of the land sold to him to be 125ft. 5 inches x 61ft. 4in x 106ft 5ins. x 76ft. 9ins. Because of this ..
Particulars - Omitted
(6) The Court of Appeal misdirected itself in law when it held as follows:-
Appellant's learned counsel only dealt with and faulted seven out of eleven documents with which Layode's family are directly connected
I have dealt with the documents criticised so as to show that not all of them are null and void and that some of them therefore support the claims of Odunaro/Layode family to parcels of land conveyed.
Although the trial Judge did not specifically consider the objections made to these documents raised by the appellant's counsel in his address, he stated his observation, findings and conclusions as to their effect as follows:
Particulars - Omitted
Arising from the grounds of appeal, four issues for determination in the appeal were formulated by the appellant in their brief as follows:
(1) was the Court of Appeal (as also the High Court) not bound by the Supreme Court decision in Ajao v. Ikolaba (1972) 1 All NLR (Part 2) 46 on Ogbomoso customary law relating to land tenure - and does refusal of the courts to follow and give effect to the prin ciples laid down therein (and in the Evidence Act) in a matter on all fours, not vitiate the decision of the Court of Appeal?
(2) Where the incidents of a customary land tenure have been established by evidence in a suit supported by a decision of the Supreme Court. is the Court of Appeal entitled to shy away from giving effect to that custom. without evidence that the custom has been changed by the community - in other words, can the court indirectly change the custom?
(3) Where the plaintiff fails to prove the radical title to land pleaded. can he in the same breath shift his ground and rely on acts of ownership which should have derived from the radical title, as proof to title to the land? Would it not be fatal to his case and title if he adduced oral and documentary evidence of conflicting histories of his ownership?
(4) In view of the decision of the Supreme Court in Odofin v. Ayoola (1984)11 SC.72 to the effect that where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession which should have derived from that root - was the Court of Appeal right in not giving effect to that decision on the views which it expressed at pages 212 to 219 of the record?
(5) In an action for trespass which raises the issue of title to land, is the plaintiff not bound to establish with clarity and precision the area of land of which he claims to be beneficial owner by purchase and should the Court of Appeal not have dismissed his claim for trespass and injunction after holding that the area of land on which he complains of trespass is at variance with that which he claimed to have purchased?
These are issues the resolution of which depends on the findings of fact made by the High Court and affirmed by the Court of Appeal.
The respondent however, formulated two questions for determination in this appeal as follows:
(1) whether by the customary law prevailing in Ogbomoso all land in that area of Oyo State belongs to the Shoun of Ogbomoso so that anyone claiming to sell land can only validly do so by tracing his title directly or indirectly to the Shoun.
(2) was the High Court and the Court of Appeal correct in relying on evidence of acts of possession to establish the title or the right to possession of the plaintiff?
The issues formulated in the appellants' brief and the respondent's brief do arise but the issues formulated in the respondent's brief are more germane and their resolution will easily dispose of this appeal.
Taking the issues formulated in the appellants' brief one by one, issue No.1 charges the High Court and the Court of Appeal with a violation of stare decisis - the doctrine of precedent - on which the development of law in common law jurisdiction is firmly entrenched. Very many questions radiate from this apparently direct and simple issue. The first is whether the two courts below found the case of Ajao v. Ikolaba (1972) I All NLR. (Part 2) 46 on all fours with the instant appeal. The second is whether if the two courts found the instant appeal on all fours with the case of Ajao v. Ikolaba (supra) they refused to follow it. The third question is whether they did not find the instant appeal on all fours with Ajao v. Ikolaba (supra). The 4th question is 6 whether the customary law governing land ownership in Ogbomoso was ever in issue in Ajao v. Ikolaba. The 5th is whether the two courts below found that the customary law governing land ownership in Ogbomosho was in issue in Ajao v. Ikolaba (supra). The 6th question is whether the two courts below properly distinguished the instant appeal from Ajao v. Ikolaba (supra)
The 2nd issue or Issue No.2 formulated in the appellants' brief poses a hypothetical question and no indication that the question arises from the facts of this case has been given. If it had been an issue in this appeal, the ready answer would have been in the negative, i.e. a Court of Appeal is not entitled to shy away from giving effect to custom' established before it or in proceedings from the High Court in an appeal before it.
Issue No.2 speaks of shying away while Issue No.1 talks of refusal to follow Ajao v. Ikolaba (supra).
Issue No.3 poses another hypothetical question. It could easily find suitable premises in the instant appeal if there is evidence that the respondent departed from the case set out in the pleadings in his testimony. It is settled rule of law in any court that parties are normally not allowed to shift from the case set out in the pleadings to another case not set out in the pleadings.
Issue No.4 complains that the Court of Appeal did not give effect to or apply the decision in Odofin v. Ayoola (1984) 11 SC.72 on non-existent root of title. If the root of title is non-existent it is non-existent and no act of possession can provide evidence of non-existent title other than its non-existence.
Issue No.5 also poses a hypothetical question. The question can be easily properly premised on the facts of this case. The short answer to the question is that if title is in issue in an action for trespass, the area of land to which title is claimed is also in issue and has to be established as claimed and or pleaded.
Although the issues formulated in the appellants' brief are five as against two in the respondent's brief, the two issues in the respondent's brief focus attention on the real questions for determination in this appeal.
Issue No.1 shows that there is real contention as to whether all lands in Ogbomoso belong to the Shoun and title to any land can only be acquired directly or indirectly from him. In other words, can title to some land in Ogbomoso be acquired from persons or family other than the Shoun according to Ogbomoso customary law?
Issue No.2 poses the question of the correctness of the Court of Appeal in relying on the evidence of acts of possession to establish title or right to possession of the plaintiff?
Proof of Customary Law
A very great issue has been made in this appeal of the customary law governing the ownership and transfer of title to land in Oghomosho. The great divide is between the appellants (who contends that all land in Ogbomoso is stool land in the sense that the Shoun as the traditional Ruler holds the land for the use and benefit of his people the Ogbomoso community) and the respondent (who contends that not all Ogbomoso land is stool land and that each of the five Ruling Houses own parcels of land title to which they can transfer and have been transferring to purchasers without let or hindrance. It is not the contention of the respondent that there are no stool lands in Ogbomoso. His contention merely limits the area of stool land in Ogbomoso to a portion of Ogbomoso land. This contention did not arise in the case of Ajao v. Ikolaba (1972) 1 All NLR (Part 2) p.46 which originated in the customary law. Since then several cases have been instituted in the High Court as a Court of first instance and they support the contention of the present respondent. In the High Court, unlike the customary Court, or area court, proof of customary law in any particular case is governed by section l4 of the Evidence Act, Cap.62 Laws of the Federation l958 or the similar provision in the Evidence Law of any State in the Federation of Nigeria. That section reads:
1. A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall be upon the person alleging its existence.
2. A custom may be judicially noticed by the court if it had been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the person or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
3. Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them; provided that in the case of any custom relied upon in any judicial proceeding, it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice equity and good conscience.
Judicial notice is therefore an alternative method of proof of customary law. However, the provision of subsection (1)(c) of section 73 of the Evidence Act enjoins the court to take judicial notice of the following facts to wit:
all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in Nigeria or the Supreme Court or former Supreme Court of Nigeria or by the High Court of the Region (now State) and all customs which have been duly certified to and recorded in any such court.
Unlike statute laws, customary laws in Nigeria have not been codified and their proof in the superior courts is mandatory. Before continuing the consideration of the iss