Bale Adegbaiye & Anor V. Josiah R. Akinrimisi & Anor (1974)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

In the High Court, Ondo, Western State, the present appellants (as plaintiffs) sued the present respondents who were the defendants to the action for the following claims:

“1. Declaration of title to the piece or parcel of land situate at Ita Luwowo Akure Road, Ondo District.

2. 300 pounds being general damages for trespass committed by the defendants upon the said land in or about October, 1959, by entering the said land and gathering palm fruits thereon.
3. Injunction to restrain the defendants, their servants and/or agents from entering or doing any act upon the said land.”

The parties duly filed their respective pleadings and there was mutual agreement between them concerning the identity of the land in dispute. The plaintiffs claim by their statement of claim that the said land originally belonged to an Oshemawe of Ondo, by name Ajishowo, who had granted same to his son Adegboemi who entered into possession of the said land, built a village thereon called Ita Luwowo and generally exercised all rights of possession over the said land until his death when he was succeeded by his son Aderobu.

The statement of claim also avers that during the era of the son and in consequence of the “Kula and Ago War”, the peoples of Ondo and surrounding area, including the land in dispute, deserted their holdings and fled but after some 45 years returned to their original homesteads and settlements and re-occupied the several places on which they had farmed before their exodus. The statement of claim further avers that thereafter the successors of Aderobu in turn held and occupied the land in dispute until it came to the time of the present plaintiffs when the present action was sparked off by the action of the defendants in putting Sobo tenants on the land after having unlawfully “broken and entered” into the said land.

The defendants’ statement of defence avers that the defendants and their ancestors had always owned the land in dispute and that by virtue of their right of ownership they had always exercised all rights of possession over the said land including the right to place tenants on the said land. The statement of defence claims that the progenitor of the defendants, one Ligba, who originally owned the land, granted it to his daughter, Famukomi, after whose death successive heads of the Ligba family had similarly exercised dominion over the said land. The statement of defence further claims that Ajishowo, before he became Oha Oshemawe, was a tenant on the said land of the aforementioned Famukomi and that after Ajishowo became the Oshemawe of Ondo, he left the land and that same had since been occupied by his descendants including the present plaintiffs.

At the trial, the plaintiffs gave evidence and called six witnesses in support of their case, some of the witnesses being their boundary men. In the course of the cross-examination of the second plaintiff, Kadiri Buraimoh, the defendants obtained from him an admission that the Oba of Ondo is the owner of all lands in Ondo; but the witness denied the suggestion put to him that Ajishowo was ever a tenant on the land in dispute before he became the Oshemawe of Ondo. The defendants thereafter gave evidence in support of their pleadings. The first defence witness, Chief Akindipe Oloyimi, was testifying as to a grant of the land to Ligba “as compensation for what Ligba did to the Oba”.

There was objection to this piece of evidence by learned counsel for plaintiffs on the grounds that the grant to Ligba was not pleaded and that it was not part of the case of the defence on the pleadings that Ligba ever had a grant of the land from the Oba of Ondo, the defence case on the pleadings being that Ligba was the original owner. The learned trial judge upheld the objection and ruled that “evidence of gift of the land to Ligha by Oba Ondo” would be discountenanced. This witness, i.e. Chief Akindipe Oloyimi, further testified that he had put Sobo tenants on the land in dispute in exercise of his right of ownership and that one Baigbe, a tenant claimed by the plaintiffs to be their head-tenant on the land, was in fact a tenant of the defendants.

The first defendant, by name Josiah Raphael Akinrimisi, also testified for the defence. He gave evidence concerning the possession of the land by the defendants and also concerning the grant of the land by an Oba of Ondo, by name Aganmede, to their ancestor, Ligba. In the same way, the fourth defence witness, Isaac Akingbola, testified as to the grant of the land to Ligba by Oba Aganmede.

After the conclusion of evidence, the parties by their respective counsel addressed the court at length and the learned trial judge reserved judgment for a named date.

Before that date, however, the defendants filed a motion as against that date, asking for leave to amend their statement of defence, manifestly in order to aver some three paragraphs designed to plead the story of the grant to Ligba by Oba Aganmede. This application was opposed by learned counsel for the plaintiffs and in the course of his judgment the learned trial judge refused the application to amend the statement of defence. By his judgment, the learned trial judge stated as follows with respect to their attempts to give evidence as to the grant of the land to their ancestor, Ligba:

“At the hearing, an attempt was made to introduce a fresh origin of title based in one Oba Aganmede. This attempt was promptly objected to by learned counsel for the plaintiffs and conceded by the learned counsel for the defendants who gave an undertaking not to pursue the issue, which was not pleaded. The court accordingly ruled that issues connected with this newly introduced origin of title should be discountenanced. It was noticed that in the course of the hearing, some other witnesses made reference to this grant to Ligba by Oba Aganmede but in accordance with my ruling, even though they are in evidence, they are for the purpose of this case discountenanced.”

The learned trial judge later dealt extensively with the merits of the case after giving his reasons for refusing the defendants’ application to amend their statement of defence. He directed himself that both parties admitted that all lands in Ondo belong to the Oba of Ondo, and then observed as follows:

“I have noted in the course of the evidence that they themselves admitted, as did the plaintiffs, that the land was stool land It therefore became apparent that anybody claiming title thereto should be able to trace his title to a grant by an Oba. The realisation of this fact, in my view, would appear to explain the reason why at the last moment the defendants made a futile attempt to trace origin to one Oba Aganmede. I do not believe that Oba Aganmede made any grant to them or that Ligba was ever in possession of the disputed land from time immemorial…….