Simeon A. Adeponle Vs Madam Bintu Ajalebe (1969)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C.

The appellant in this appeal was the plaintiff in the Lagos High Court (Suit No. LD/100/64) where his writ of summons was endorsed as follows:-

“The plaintiff claims against the defendants jointly and severally:-

(1) The sum of £50 damages for trespass to a piece or parcel of land situated at Adana Street, Surulere.

(2) Declaration of title in fee simple to the said piece of land.

(3) Injunction restraining the defendants, their servants and or agents from committing any further acts of trespass to the said piece of land.”

At the trial, the plaintiff rested his case mainly on land certificate No. MO.3138 which was admitted in evidence and marked exhibit ‘A’ and in which the name of Yesufu Raimi appears as the first registered proprietor of the freehold interest in the land now in dispute. Yesufu Raimi testified that the land was bush when he bought it from the Oloto Chieftaincy family in November, 1962 and that he cleared the bush and erected a signboard on the land. By an instrument of transfer dated the 3rd of October, 1963, he transferred his interest in the land to the plaintiff. The plaintiff in turn testified that he bought the land from Raimi in 1963 and replaced Raimi’s sign-board with his own signboard.

He also stated that about two months there-after, his signboard was removed and replaced by a signboard bearing the names of Bintu Aduke Ajalebe and Raliatu Omolara. In consequence of this, he instituted these proceedings. For their part, the defendants denied that the land in dispute belonged to the Oloto Chieftaincy family. Their root of title is Oloto Olowo who, they claimed, was the original owner of Adana village where the land is situated.

They traced an unbroken chain of title through their grandfather, Fatade Tokosi, who was a grandson of Oloto Olowo. It was part of their case that they and their ancestors have always been in possession of Adana Village and in order to establish acts of possession they called some of their tenants to testify at the trial.

In a reserved judgment, Ikpeazu J. dismissed the plaintiff’s claim with 60 guineas costs and it is against that judgment that the plaintiff has now appealed. At the hearing of the appeal, it was contended on behalf of the plaintiff that the learned trial judge misdirected himself in law in that he did not allow Chief Ogundimu, the head of the Oloto Chieftaincy family, to give evidence of traditional history relating to the land in dispute. The argument was directed against a portion of the proceedings which reads as follows:-

“Note: Mr. Coker wishes to call further evidence Agreed, P. W. 5 Emmanuel Ogundimu sworn on the Bible states in English. I am Chief Oloto and head of Oloto family. Fatade Tokosi was a member of Oloto family. I know Adana area and how Fatade came to be in possession. Note. I observe that the evidence sought to be led or being led was not pleaded and call Mr. Coker’s attention to it. That being so I am not disposed to allow such evidence in the absence of an amendment. Mr. Coker: If court rules evidence is not to be admitted I will abandon the witness. No application is made. Court: Evidence is not to be admitted and Coker withdraws the witness.”

This aspect of the case was specifically considered by the learned judge in his judgment when he said:-

“The head of the Oloto Chieftaincy family, Emmanuel Ogundimu, was called by the plaintiff as his witness. When this witness was asked about the traditional history of the land in dispute, I called Mr. Coker’s attention to his pleadings which are completely silent on this point and indicated that in the absence of any amendment of the statement of claim, such evidence should not be led. No leave was sought to amend the statement of claim but rather the witness was withdrawn and the plaintiff’s case was closed.”

We observe from the record of proceedings that Chief Coker withdrew the 5th plaintiff’s witness, Chief Ogundimu. Having taken that course at the trial, we think it is not now open to him to attack the judgment on the ground that the learned judge refused to allow Chief Ogundimu to testify. Immediately after the conclusion of the evidence of the 4th witness for the plaintiff on the 2nd September, 1966, the court carried out an inspection of the land in dispute. The inspection notes are as follows:-