Bello Adeleke Versus Benjamin Adewusi (1961)

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TAYLOR, F. J

This is an appeal from the judgment of Irwin, J. of the High Court of the Ibadan Judicial Division dismissing the claim of the plaintiff/appellant for a declaration of title to land at Agbowuyade farmland and an injunction to restrain the defendant/respondent and his servants from further acts of trespass on the said farmland.

It was the appellants case in the Court of Trial that his ancestor, Morolahun begat Tegbosun, Adelumo and two others whose names are not important for the purposes of this appeal. Tegbosun begat Akinsunwon who begat Oyelude the present Bale of Kuta. Adelumo begat Olawunmi who begat Adeyigbe the father of the present appellant. That the land in dispute belonged personally to Olawunrni who never at any time became Bale of Kuta. That before the Fulani invasion of the 19th Century, one Dada, who was admittedly also known as Agboyade or Agbowuyade on requesting Olawunrni to make a grant of land to him, was given the area in dispute to farm on payment of ishakole which he paid up till Olawunmis death. This Dada begat Fabode who bcgat Emmanuel Adewusi the respondents father.

The appellant further contended that the respondents ancestors and the respondent paid ishakole to the appellant and his ancestors. It is common ground that the land in dispute was vacated during the Fulani invasion when both landlord and tenants fled away, It is also common ground that after the invasion the land was occupied by the Telemu and Ashamu people. The first step taken by the appellant or his ancestors to re-possess the land was when the appellants father became Bale or Kuta and sued the Ashamu people in suit 25/30. After this judgment the people placed on the land by the Ashamu s began to pay ishakole to the appellants father, and, after his death to the appellant. The appellant contends that the respondents ancestors also paid ishakole to his father and himself after this suit until Oyelude the present Bale persuaded them not to do so when he took alit an action suit No. 1/53/54.

On the other hand, the respondent contended that the land was acquired as virgin land by his great ancestor Agbowuyade. The only person in the genealogical tree of the respondent of any importance for the purpose of this appeal is Fabode the father of Adewusi. The occupation of the land by him at one period of time is common ground. The respondent, however, denies that his ancestors or himself ever paid ishakole to the appellant or his ancestors. As regards suit 25130, the respondent says that the action was brought by the appellants father for and on behalf of the people of Kuta.

Before dealing with the arguments of Counsel in this appeal, this might be a convenient time to comment on a practice which is becoming too common in Courts of Trial. The proceedings in the High Court, exclusive of the exhibits, occupied some 48 pages in the record of appeal, whereas the exhibits occupied the next 172 pages from page 49 to 220, out of which 164 pages were devoted to the record of proceedings in suit 1/53/54. I must here correct an error made by Mr Okusaga for the appellant that those proceedings were tendered at the trial by Counsel for the respondent. They were not. They were tendered through the Plaintiffs 4th witness, a clerk of the Ibadan High Court called at the instance of the appellant and were marked exhibit ‘C’. The record in fact shows that Mr Cole for the present respondent objected to their being tendered on the ground that their relevance had not been shown. The proceedings were tendered in bulk without any reference being made to any particular portion of same at the time they were tendered. During the address of Counsel for the appellant there was only one reference to them and that was in respect of one page in the judgment of the High Court. I would draw attention to s. 34 and ss. 48 to 55 of the Evidence Ordinance as showing the conditions under which statements evidence, proceedings and judgments in previous matters and suits are admissible in subsequent suits in the hope that in future this all too frequent practice of tendering parts of proceedings which are of no possible evidential value and in some cases are utterly irrelevant and inadmissible will cease. At the hearing of this appeal with the exception of a few passages in the Judgment of the High Court contained in exhibit ‘C’, no further use was made of this 164 page exhibit. This must and will reflect itself in the costs to be awarded in this appeal.

There are five grounds of appeal filed with the Notice of Appeal and their effect may be summarised under two heads as follows:-

1. That the Learned Trial Judge having found that ishakole was rendered to plaintiff/appellants father by defendant/respondents predecessor failed to understand the legal nature of such payment under Native Law and Custom.

2. That the Trial Judge failed to draw the proper legal inferences from suits 25/30, 1/53/54 and FS.C. 148/1956.

The issue in this appeal, as indeed in the High Court, was simply this: was the land in dispute the property of the plaintiff/appellant Bello Adeleke? On the issue of payment of ishakole the Trial Judge held as follows:-

After the settlers had been driven away by the Fulanis tribute was exacted from their successors by the Alashamu including, I find the defendants ancestors.

Now, stopping there for a moment. If I understand the Trial Judge correctly, the effect of this passage is, that accepting the evidence, which is common to both parties, that the Fulanis drove the original settlers away; after the invasion the tenants on the land, including the defendants ancestors, paid tribute to the Alashamu people, who rightly or wrongly had become the overlords of the land. The judgment then goes on to say that:-

I accept the plaintiffs statement that consequent upon the proceedings in exhibit ‘A’ tribute was rendered to his father by the defendants predecessors.

The proceedings in exhibit ‘A’ consisted inter alia of a claim by Adeyigbe, Bale of Kuta against Alashamu for an injunction to restrain defendant ‘from entering plaintiffs farm situate at Kuta known as plaintiffs farrmland.’ The effect of the passage just quoted from the Judgment of the Trial Judge is that the plaintiff, having obtained judgment, began from then onwards to receive tribute from the respondents predecessors. Such payment of tribute to the Alashamu and to the appellants predecessor draws with it the inference that it was in recognition of their overlordship or ownership. The Learned Trial Judge did not hold a different view on this point, but went on to say that:-