Alhaji Jimoh Odutola V. Seidu Aileru & Ors (1985) LLJR-SC

Alhaji Jimoh Odutola V. Seidu Aileru & Ors (1985)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C 

The appellant herein was the plaintiff at the Ijebu Ode High Court in suit No. HCJ/12/71. In that case the appellant had sued the defendants (respondents herein) claiming the following reliefs:

“(1) Declaration that the plaintiff is entitled to possession and occupation of that piece of land situate and lying at ONDO ROAD, IJEBU-ODE.

(2) 2,600pounds being special and general damages for trespass committed by the defendants to plaintiff’s property on the land in 1970 and 1971.

(3) Injunction to restrain the defendants, their agents or servants from disturbing the plaintiff’s possession and occupation of the land.”

Pleadings were ordered and were duly filed and delivered.

Both parties to the dispute (except the 6th and 7th defendants) claimed to be descendants of one Lusenbi, a woman, who was the original owner of what would appear to be a vast area of land, of which the land in dispute forms a portion.

In the High Court the plaintiff’s case was that their ancestor, Lusenbi, allotted the area in dispute to two of her children, Tulaja and Tufeya and that Tufeya occupied the said land exclusively in his lifetime. It was also his case that before Tufeya died; he handed over the same parcel of land to his son Tunuga, who, in turn, handed it over to his daughter Tubajo, who was his mother.

As to how he acquired possession of the land in dispute, he said that in 1956, some members of the family sold a large portion of the family land to his brother Chief T.A. Odutolas, which transaction led to a dispute within the family. He said that he initially gave his support to those who opposed the sale of the land to his brother and who, in fact, wanted to have the sale set aside.

His mother was, however, not happy with his stand in the dispute and she therefore promised that if he (the plaintiff) withdrew his support for those opposing the sale, she would yield over the land in dispute to him. He contended that it was in fulfilment of this promise that his mother handed over the land to him, at a family meeting, which was attended by some important members of the family and which meeting was presided over by the then head of the family-Ebofen Otulaja.

On the other hand, the defendants’ case, both in their pleadings and in their evidence, was that their ancestor, Lusenbi, never divided her land amongst her children as contended by the plaintiff. It was their case that with the exception of the portion sold to Chief T.A. Odutola in 1956 and the grant made to one Sanusi Otubanjo (otherwise known as Sanusi Doctor), Lusenbi family land had, up to 1966, been communally owned and used by the members of the family. It was in 1966 that what remained of the family land was divided into plots and allocated to various members of the family. They said that the plaintiff’s mother was alive at the time of this general allocation of the family land, and was fully aware of what was going on and yet she did not lay any claim to the land in dispute.

At the trial the appellant gave evidence and called twelve witnesses in support of his claim. For the defence, the 2nd, 3rd, 6th and 7th defendants gave evidence and six other witnesses were called. At the conclusion of the case the learned trial judge Ademola, J. (as he then was) meticulously evaluated all the evidence adduced, and came to the conclusion that the appellant had failed to prove his case, and so dismissed the claim in its entirety.

Dissatisfied with the judgment, the appellant appealed to the Court of Appeal (Ogunkeye, Akanbi, Uche Omo, JJ.C.A.) and in a lucid judgment delivered by Akanbi, J.C.A. on 27th January, 1981, that court dismissed his appeal. The appellant, still dissatisfied has now appealed to this Court.

Originally three grounds of appeal were filed, but at the hearing, only one of them was argued, and that was the second ground of appeal. That ground reads as follows:

“(2) The Federal Court of Appeal erred in law when it held as follows:- it is contended that there was no finding made with regard to Ijebu NativeLaw and Custom on which evidence was led. I do not think anything turns on that. . . .”

PARTICULARS

(i) The whole case was based on the customary law put in issue and proved in court.

(ii) A finding on the customary law is a pre-requisite to a proper appraisal of the case of the appellant.

(iii) The issue of possessory title which the Appellant sought to protect is supported by the customary law put in issue.”

Both in his brief of argument and oral submission, Mr. Ajayi learned Senior Advocate for the appellant, raised two points in this ground of appeal. The first is whether or not the High Court and the Court of Appeal had not misdirected themselves as to the appellant’s claim before the High Court. The second point raised is whether the Court of Appeal was right in taking the view that the failure of the learned trial judge to make a finding on the issue of Ijebu Customary law was immaterial.

With regard to the first point, Mr. Ajayi’s submission was that the learned trial judge misconceived the case of the appellant as was clearly formulated in his pleadings and fully supported by the evidence. In this regard he referred us to page 132 lines 33 to 35 and page 133 lines 1 to 3 of the record (the relevant passage is actually at page 134) where the learned trial judge said:

“The case simply in my view is whether the land in dispute originally part of Lusenbi’s land has lost its character as a family land and has become the exclusive property of one of Lusenbi’s sons.”

He said that the appellant was not claiming a declaration of title to the land in dispute on the basis of absolute ownership. The appellant’s claim, he submitted, was that although the property remained family property, each descendent of Lusenbi, occupying a portion of family land, had, by Ijebu Customary Law, the right to transmit the right of occupation of the portion occupied by him to his descendants. It was this occupational or possessory right, as distinct from absolute title that the appellant was claiming. He then referred us to the evidence of 11 PW on Ijebu Customary Law, and the case of Adekunle Coker v. Jarinatu Jinadu and Ors. (1958) L.L.R. 77 in support of his submission.

It was Mr Ajayi’s further submission that since the trial court had misconceived the appellant’s claim, the Court of Appeal should have, on the authority of Chief James Okpiri & Ors. v. Chief Igoni Jonah and Ors. (1961) 1 ALL N. L. R. Part 1, 102, ordered a rehearing of the case. He then urged us to order a rehearing should we find favour with his submissions.

In his reply, Mr. Odedina for the respondents submitted that the trial court never misconstrued the case of the appellant. He said that the appellant’s claim was that the land in dispute was inherited by his mother who subsequently granted it to him, and that it was this claim that was rejected by the trial court.

I think Mr. Odedina was right in his submission that the claim of the appellant was not misconceived by the learned trial judge. This is clearly shown by the record, where, at page 134, the learned trial judge said:

“The plaintiffs counsel says that plaintiff is not seeking a declaration of title to the land but merely a protection of his possession and occupation and that the court can protect such by injunction where the evidence does not justify title in such person.”

And in dismissing the appellant’s claim at page 137 of the record, the learned judge said:

“It follows from my findings above that the first leg of the claim of a declaration of a right to possession and occupation of the land in dispute cannot be sustained.”

In my view, the above quoted passages of the judgment of the learned trial judge show clearly that the nature of the appellant’s claim in that court was never misconstrued. I do not therefore see any substance in this complaint.

The second point made by Mr. Ajayi in this ground of appeal is whether the Court of Appeal was right in its view, that the failure of the trial court to make a finding on the issue of Ijebu customary law was immaterial to the proper decision of the case. As stated earlier in this judgment, the appellant’s case was that the land in dispute was inherited by his mother who subsequently yielded it over to him. He led evidence to show that in the circumstances, according to Ijebu customary law, he was entitled to the possession and occupation of the land, and that it was this possessory right that he was seeking to protect.

The respondents, on the other hand, categorically denied the appellant’s claim that the land in dispute was granted to his mother. Consequently, there were, before the trial court, two conflicting assertions. In a case such as this, in which the trial judge is confronted with two conflicting assertions, it is his duty to consider both assertions carefully, and to decide on the balance of probabilities, which of the assertions he will accept. (See Paul .O. Omoregbe v. Ehigiator Edo, (1971) 1 ALL N.L.R. (PART 1) 282 . In this case the learned trial judge, having given very careful considerations to the totality of the evidence before him, resolved the matter as follows:

“With such doubts that I have about the probability of the story of grant made to the plaintiff by his mother, I have come to the conclusion that no such grant occurred as contended for by the plaintiff and his witnesses. The truth of the matter lies in the story by the defence which I accept that the plaintiff approached the family for a grant of the land in dispute and was refused and that such refusal brought about the fracas in plaintiff’s house between himself and the 2nd defendant.”

Thus, the basis of the appellant’s claim that the grant of the land in dispute was made to him by his mother was rejected in to by the learned judge. This, in my view, is a finding of fact based on the evidence properly adduced before the trial court. Now the question is: Having firmly come to the conclusion that no grant of the land in dispute was ever made to the appellant by his mother (or by any other person for that matter), was the learned trial judge under any further obligation to make any finding on the issue of Ijebu customary law In my view, the answer to this question must be in the negative, and this was precisely the view of the Court of Appeal when, in its judgment it said:

“Finally, it was contended that there was no specific finding made with regard to Ijebu Native Law and Custom on which evidence was led. I do not think anything turns on that. The trial judge rejected the totality of the plaintiffs case. He did not accept his story that he inherited the land from his mother and that finding alone disposes of any claim to possession under and by virtue of the alleged native law and custom. Consequently the point taken cannot avail the appellant.”

Now, paragraph 42 of the appellant’s Amended Statement of Claim states that by the native law and custom of Ijebu, family land occupied by a member of the family can be passed on to the occupier’s issues, and paragraph 46 of his Amended Statement of Claim avers as follows:

“46. The plaintiff will contend at the hearing that the land in dispute has always been occupied exclusively by his mother and that any purported allotment of the land after the land has been transferred to him with the consent of the family is invalid and contrary to native law and custom.”

It seems to me obvious that before the principle of Ijebu customary law pleaded by the appellant, and proved by the testimony of the 11 P. W. could come into play, the appellant must have first of all satisfied the court that his mother had always been in exclusive possession of the land in dispute, as pleaded by him. At the trial, the appellant led evidence to this effect but his contention was rejected by the trial judge. In the circumstances it is my view that since the appellant had failed to convince the trial court that his mother had, at any particular time, exclusive occupation of the land in dispute, it was no longer necessary for the trial judge to make any finding on the issue of Ijebu customary law. I therefore do not see any substance in this complaint.

The appeal fails as a whole, and it is hereby dismissed. The judgment of the Court of Appeal, Ibadan, dated 27th January, 1981 is hereby affirmed. There will be costs against the appellant which I assess at N300.00.

A. G. IRIKEFE, J.S.C.: I was privileged to see in advance the judgment just read by my learned brother, KAWU, J. S. C. and I agree with the reasoning and conclusions therein contained both on matters of law and fact. I have nothing to add. I also would dismiss this appeal and adopt all the orders made by KAWU, J.S.C. including the order as to costs.

A. O. OBASEKI, J.S.C.: The plaintiff/appellant’s claim for:

“Declaration that the plaintiff is entitled to possession and occupation of that piece of land situate and lying at Ondo Road, Ijebu Ode”

places on the plaintiff the burden of proof required to be discharged to earn a declaratory judgment in a court of law. It is a heavy burden. The principal question raised in this appeal is whether the plaintiff/appellant discharged the burden of proof.

The question was answered by the trial court, the High Court, and the Court of Appeal in the negative. I too answer the question in the negative.

The finding of the learned trial judge that:

“the truth of the matter lies in the story by the defence which I accept that the plaintiff approached the family for a grant of the land in dispute and was refused, such refusal brought about the fracas in plaintiff’s house between himself and the second defendant.”

is fatal to the appellant’s claim for a declaration to possession and occupation of the land in dispute.

A full and detailed consideration of the question has been dealt with in the judgment of my learned brother, Kawu, J.S.C. and for those reasons. I too would and I hereby dismiss the appeal. The appellant should pay the respondent costs in this appeal fixed at N300.00.

B. O. KAZEEM, J.S.C.: In the High Court of Ijebu Ode, the appellant in this appeal as plaintiff had sued the respondents as defendants

(i) A declaration that the plaintiff was entitled to possession and occupation of that piece of land situate and lying at Ondo Road, Ijebu Ode;

(ii) A sum of N2, 600.00 as damages for trespass committed by the defendants to the plaintiff’s property on the land in 1970 and 1971; and

(iii) An injunction to restrain the defendants, their agents or servants from disturbing the plaintiffs possession on the said land.

Both parties filed copious pleadings and led evidence in support of the averments in such pleadings. At the end of the trial, the learned trial judge considered the totality of the evidence before him and not only found that there were certain facts upon which there was broad agreements by both parties; but he also made a number of other findings. As a result therefore, he held that the plaintiff failed to prove his claims which were dismissed in to. Against that decision he appealed to the Federal Court of Appeal in Ibadan which also dismissed the appeal.

The facts upon which there was broad agreement by both parties were set out in the judgment of the trial court as follows:

(a) That the land in dispute formed part of Lusenbi Family land which was never partitioned;

(b) That a large part of what was originally family land of about 30 acres was held by Chief T.A. Odutola, the eldest brother of the plaintiff; and it is now being used as Adeola Odutola Comprehensive College. It was the subject-matter of Suit J/36/62;

(c) That Ayisatu Ebofen was the Head of the family at the time the action was instituted; and Seidu AHeru, the 1st defendant, succeeded her as Head of the Family after her death. Seidu died during the action;

(d) Tubajo, the plaintiff’s mother, was never appointed the Head of the Family and she had died before this action was instituted;

(e) That from 1966 members of the family had allotment of family land made to them which some had even transferred to strangers who had built on family land such as Bishop Jadesinmi whose holding was evidenced by Deeds of Conveyance-Exhs 10 and 11;

(f) That a family house was being constructed on a portion of family land; and

(g) That all the parties to this action except the 6th and 7th defendants are members of Lusenbi family.

However the findings made by the learned trial judge were:

(i) That the plaintiff’s right to possession was not only challenged, but an allegation of physical presence of other people on the land was raised, and in such a case the question of who had a better title to the land had to be decided: See Kareem v. Ogunde (1972) 1 S.C. 182 at 183; and Aromire v. Awoyemi (1972) 2 S.C. 1 at p.10.

(ii) that after considering the evidence of P.W.6 and P.W.12 as well as the plaintiff’s evidence himself in respect of the grant of the land in dispute allegedly made to the plaintiff by his mother, the trial Judge had the impression that the alleged grant was shrouded in greater secrecy than the occasion demanded;

(iii) that after considering the totality of the evidence the learned trial judge came to the conclusion on the claim for a declaration that no grant of the land in dispute was made to the plaintiff by his mother;

(iv) that there was a general allocation of family land to individual members of the family at the conclusion of suit J/36/62 which was confirmed by some of the plaintiff’s witnesses i.e., P.W.2 and P.W.10;

(v) that it was in 1970 after the general allocation of land to other members of the family in 1966 that the plaintiff asked the family for a grant of the family land, but the family refused;

(vi) that the plaintiff’s mother was alive in 1966 when the land was divided and allocated to others and she did not protest;

(vii) that it was confirmed by the plaintiff’s surveyor (P. W.1) who made Exh. 1 and the defendant’s surveyor (D. W.2) who made the composite plan-Exh. 12, that the land surveyed for other people in 1967 and 1968 as shown in Exhs. 2 and 3 formed part of the land in dispute as shown in Exh. 1 made in 1971;

(viii) that the net effect of all those previous surveys and the burying of pillars thereon was a show of possession and occupation by those who authorised the survey; and as such the trial judge found it difficult to say that the possession of the land in dispute as claimed by the plaintiff was continuous and exclusive enough for him to maintain an action for trespass.

All those findings were in effect accepted by the court of Appeal in Ibadan as a result of which it dismissed the appeal of the plaintiff.

The plaintiff (hereinafter called “the appellant”) has now appealed to this court on three grounds as follows:

(1) The Federal Court of Appeal erred in law in holding as follows-” the evidence that the learned trial judge accepted was that other members of the family were in possession of the land before the plaintiff got there ”

PARTICULARS

(i) The trial judge’s finding was not consistent with the proofs tendered in court.

(ii) The trial judge’s finding was based on issues on which he assumed that there was common ground between the parties when in fact the parties were not agreed on the issues.

(iii) The intrusion of other person was the cause of action.

(2) The Federal Court of Appeal erred in law when it held as follows: “. . . it is contended that there was no specific finding made with regard to Ijebu Native Law and Custom on which evidence was led. I do no think that anything turns on that. . .”

PARTICULARS

(i) The whole case was based on the customary law put in issue and proved in court.

(ii) A finding on the customary law is a pre-requisite to a proper appraisal of the case of the appellants;

(iii) The issue of possessory title which the Appellant sought to protect is supported by the customary law put in issue.

(3) The Federal Court of Appeal erred in law in failing to award damages for the admitted trespass in terms of the assessment made by the learned trial judge.”

The defendant will also be hereinafter called the “respondents”.

But at the hearing of the appeal in this court, learned counsel for the appellant pursued only ground 2 dealing with the failure of the learned trial judge to make a finding on the application of Ijebu Customary Law to the grant of the land in dispute allegedly made to the appellant by his mother.

In arguing that ground of appeal, learned counsel for the appellant Mr. G.O.K. Ajayi SAN, submitted that the matter for consideration was whether the trial judge as well as the Court of Appeal misdirected themselves as to the right issue which was before the court for determination or whether the Court of Appeal was right in taking the view that of the failure of the trial judge to make a finding on the issue Ijebu Customary law pleaded was immaterial. It was submitted that the two courts failed to understand the fairly formulated case which was not a claim for a declaration of title on the basis of exclusive possession, but that when a member of a family occupies a portion of family land according to Ijebu Custom, that occupational right can be transferred from generation to generation; and that it is a right which cannot be lightly disturbed by the family. Mr. Ajayi in his submission emphasised that there is a difference between a claim of occupational right against the family short of title, which is protected by the law even against the family. He then referred to evidence of 11th P. W. on Ijebu Customary Law on the grant of such occupational right and submitted that it was not challenged under cross-examination and yet the trial judge made no finding on it, and the Court of Appeal said that the case did not turn on the issue. It was finally submitted that in so far as the lower courts did not advert to the issue, this court should order a retrial of the case. In reply, learned counsel for the respondents, Prince Odedina, made submissions which were very much in line with the findings of the learned trial judge in the court below.

It has to be realised that what was before the trial judge was the appellant’s case mainly based on the fact that he inherited the land in dispute from his mother through an occupational right that had devolved from Tufeya, her grand father; and that under Ijebu Customary Law such grant or inheritance which was blessed by Ebofen Tufeya the Head of Lusenbi family at the time entitled him to exclusive possession of the said land. However, against that claim was the contention of the respondents that the land was and continued to be Lusenbi family land on which members of the family had a right to farm and were in fact farming thereon; that the family land was never partitioned; that no specific grant of land in dispute was made to Tufeya which he could pass on to Tubajo and then to appellant; that no grant of the said land was made to the appellant by his mother Tubajo; that the appellant’s brother Chief T.A. Odutola had already acquired 30 acres out of Lusembi family land which resulted in a law suit; that out of the remaining 10 acres, certain portions were reserved for the use of the family and the rest was divided into 59 plots which were allocated to other members of the family, excluding the appellant’s section of the family, on the payment of a fee of 15pounds per plot; that the allotees of such plots which fall within the land in dispute were in physical possession of their plots before the purported grant of the land to the appellant by his mother; and that up till 1966 when the land was allotted to other members of the Lusenbi family, the land did not cease to be Lusenbi family land. Having regard to the totality of the evidence before him including that of 11th P.W.-Salami Akeju, who testified on the application of Ijebu customary law to the alleged grant, the learned trial judge accepted the evidence adduced by the respondents and finally found that a grant of exclusive possession was neither made to Tufeya the appellant’s great grandfather, nor was any made to the appellant by his mother Tubajo. In conclusion the learned trial judge said:

“With such doubts that I have about the probability of the story of grant made to the plaintiff by his mother, I have come to the conclusion that no such grant occurred as contended for by the plaintiff and his witnesses. The truth of the matter lies in the story by the defence which I accept that the plaintiff approached the family for a grant of the land in dispute and was refused and such refusal brought about the fracas in plaintiff’s house between himself and the 2nd defendant. It follows from my findings above that the first leg of the claim of a declaration of a right to possession and occupation of the land in dispute by the plaintiff cannot be sustained.”

In the circumstances, I am of the view that it was implicit in that finding that the learned trial judge did not accept the appellant’s version that an exclusive possession of the land in dispute was made to him in accordance with Ijebu Customary Law. Hence the learned trial judge did not, in my view, misconceive the case of the appellant. I am therefore satisfied that the Court of Appeal was justified in arriving at its conclusion at page 179 thus:

“Finally, it was contended that there was no specific finding made with regard to Ijebu Native Law and Custom on which evidence was led. I do not think anything turns on that. The trial judge rejected the totality of the plaintiff (sic) case. He did not accept his story that he inherited the land from his mother and that finding alone disposes of any claim to possession under and by virtue of the alleged native law and custom. Consequently, the point taken cannot avail the appellant.”

Consequently, the appeal in my view lacks merit, and it is hereby dismissed with N300 costs.

D. O. COKER, J.S.C.: I entirely agree with the judgment just delivered by Kawu, J.S.C. that the appeal fails and should be dismissed. The appellant, as plaintiff, claimed against the respondents, that he is entitled to possession and occupation of a piece of land situate at Ondo Road, Ijebu Ode, damages for trespass and an order of injunction. It was common ground that the owner of the land was one Lusenbi who was the common ancestor of the parties (excepting 6th and 7th defendants). His case was that the land in dispute was granted by Lusenbi to two of his seven children, Tufeya and Tulaja, but that Tufeya occupied the entire land exclusively throughout his lifetime, and before his death he handed it over to his son Tunuga, the father of this (plaintiff’s) mother, Tubaje, but that her guardian, Tubanje, her brother, actually managed the land for her. Paragraph 13 of his Statement of Claim averred that “when Tubanje was about to die, he instructed his children that should Tubaje wish to use the land in dispute-they should yield possession to her.” Further in paragraphs 28 and 29 he pleaded that his mother handed over occupation and possession of the land to him; and that Ebefen Otulaja, then head of the Lusenbi Family, agreed to and blessed the handing over to the plaintiff. He further pleaded in paragraphs 42 and 43 that by native law and custom of Ijebu, family land occupied by a member can be passed on to occupier’s issues or any of them in succession; such issues or issue has the right to continue in undisputed possession and occupation thereof.

The defendants denied these averments and averred that the plaintiffs ancestor, Tunuga (or Otunuga) did not occupy the land, but that his right over the land was just like that of any other member of Lusenbi Family, that Tunuga did not and could not have handed over the disputed land to Tubaje, plaintiffs mother, as he had no land of his own. Further, they averred that his mother in her lifetime never laid claim to it, and that plaintiff’s entry on the land was unlawful and, finally in paragraph 69 stated:

“That in keeping with Ijebu Custom that no member of a family has an exclusive right over family land . . .”

Both parties called evidence. The plaintiff testified that while he was not the only child of his mother, he was claiming the land as his own although Tunug, his grandfather, had other children besides his mother.

He also testified:

“This land belongs to me alone. My brother has no interest in it. My brother also might not know when my mother made the grant to me . . .” Lusenbi, gave the portion to his son Tufeya to farm and farming (sic) gave portion to Tunuga, his son to farm. Tunuga planted Kola nuts on it and after Tunuga’s death, my mother inherited it: I am not farming on the land Otunbanjo looked after this farm for my mother.”

Abudu Oyelegbin, P.W.6, whose mother was a full blood sister of plaintiff’s mother, testified that apart from plaintiff’s mother, his own mother, Asimewu, Iya Flora and Birikisu Otunuga all owned the land in dispute, but later contradicted himself by saying that “the father of plaintiff’s mother, before his death, gave the farm in dispute to Otunbanjo to look after for Otubanjo” (i.e. plaintiff’s mother). Still later, under cross-examination, he said before the grant to plaintiff, Tubajo, his (plaintiff’s) mother informed all his sisters. The evidence of this witness contradicted that of the plaintiff himself and is contrary to his pleading.

The 2nd defendant, Kadiri Aba, as the 1st D. W., himself a member of Tufeya section of Lusenbi Family, testified that the land now belongs to the children of Lusenbi to whom the family had allotted it in 1966 and who have paid, after settlement of a rift amongst members of the family, which arose over the sale of 30 acres of family land to plaintiff’s brother, Chief T.A. Odutola. He testified that “Any member of the family who farms on family land has right over his crops and not over the land, plaintiff’s mother had no exclusive land on the family land to give over to the plaintiff. Tunuga had no exclusive right over family land to hand over to anybody. Tufeya had no right either.

The whole family has the right to give out portions of land to individuals. Ayisatu Eboje as head of the family could not alone give family land out . . .” The evidence of this witness seems to accord more with the notorious custom of succession or grant of the Yoruba people. See Solomon and Ors. v. A.R. Mogaji (1982) 11 S.C.1 p.10.

The trial judge was of the view, rightly in my view, that the plaintiff’s witnesses contradicted his evidence in many essential points; that the alleged grant by his mother to plaintiff “was shrouded in great (sic) secrecy than the occasion demanded.” He finally came to the conclusion “that no such grant occurred as contended by the plaintiff and his witnesses. The truth of the matter lies in the story of the defence which I accept that the plaintiff approached the family for a grant of the land in dispute and was refused . . .” The trial judge also found that “there was a general allocation to individual members of the family at the conclusion of suit 1/36/62, and found possession and occupation by those who authorised the survey of pieces of the land.” My Ajayi did not attempt before this Court to challenge any of those findings of the trial judge, nor were they disputed even in the Court of Appeal. His main quarrel is that neither the trial court nor the Court of Appeal made any specific findings regarding Ijebu Native Law regarding succession by issues of members occupying family land as alleged by the plaintiff. In my view, since the plaintiff failed to prove the alleged grant to him by his mother the questions of Ijebu custom of right to possession of occupier’s issue became academic and irrelevant. The evidence adduced by the plaintiff was that he was not the only child, nor the eldest son of his mother. Assuming it was her exclusive property, it devolved on her death on all her children and not exclusively on the plaintiff. See Mrs S.A. Kareem and Ors. v. David Ogunde and Anor. (1972) 1 A.N.L.R. (Part 1) 73 at p.80. But his claim is to exclusive right to possession and occupation, by grant from his mother. The trial court did not accept such a grant was made by his mother.

But the other finding by the trial judge was that the plaintiff approached the Lusende family for allocation of land. That finding pre-supposes that it was the family that could make a valid grant. That finding, by parity of reasoning, is that plaintiff’s mother, as a member of Lusenbi family, could not validly make any grant of the family land to her son.

The appeal is completely hopeless and without merit. It is accordingly dismissed and I further affirm the judgment of the trial court with costs fixed at N300 to the respondents.

Appeal Dismissed.

SC.18/1984