Amusa Dada & Ors V. Bakare Shodeke (1976)
LawGlobal-Hub Lead Judgment Report
Before the Ikeja Judicial Division of the Lagos State High Court, the appellants as plaintiffs claimed thus against the defendants/respondents:-
“(i) The plaintiffs seek an order for declaration that the defendants being customary tenants of the Igando Community have forfeited their rights to the use of the farmland at Igando, in the Ikeja Judicial Division.
(ii) An injunction restraining the defendants from disturbing the plaintiffs their agents and or servants from entering upon the said land and or from disturbing the plaintiffs of the use of the said land.”
The appellants purport to have brought the action for themselves and as the accredited representatives of the Igando Community and obtained an order of court in this regard in the course of the proceedings. The land, the subject of this dispute, is described as being some one thousand nine hundred and ten acres in area and is shown bordered in pink on Exhibit “A”, a plan produced by the appellants. By their statement of claim the appellants averred as against the respondents as follows –
“(3) The 1st, 2nd, 3rd and 4th defendants are descendants of one SHODEKE.
(4) The Igando Community is the absolute owner according to Yoruba Native Law and Custom of a vast area of land situate at Igando, and the land is more particularly described and delineated on the plan annexed to this statement of claim and verged “pink”.
(5) Shodeke, during his lifetime was a customary tenant of the Igando Community in respect of the area of land verged “yellow” on the plan aforesaid. He and his children Kafaru Ashade Shodeke, Saka Dosunmu Shodeke, Sadiku Shodeke, Ogunbewon Shodeke and Lawani Shodeke farmed the said Land during and after the death of Shodeke and are still farming the said land.
(6) Sometime in 1928 Sunmonu Ige on behalf of the Igando Community instituted action against Kafaru Ashade Shodeke, Saka Dosunmu Shodeke and Lawani Shodeke, all descendants of Shodeke for declaration that the defendants have forfeited their rights to the use of the farmland at Igando which they were and are occupying under Native Law and Custom and for an injunction restraining them from disturbing the people of Igando in the enjoyment of their own land.
(7) The plaintiffs will found on the proceedings and judgment in the Suit No. 19/1928 – Sunmonu Ige v. Kafaru Dosunmu and Lawani as establishing that Shodeke and his descendants were and are customary tenants of the Igando Community and that they, the 1st – 4th defendants are estopped by their conduct and admissions from denying that they are customary tenants of the Igando Community.
(8) The 5th and 6th defendants are members of the Ikotun people and are not in any way connected with the Igando Community and have no right or interest in the Igando Communal land.
(9) Sometime in 1966, the 5th and 6th defendants wrongfully entered upon portion of the Igando Community land, verged “BROWN” on the plan, they claimed ownership of it after destroying crops on the land.
(10) The said land verged “BROWN” was being farmed by tenants of the Igando Community immediately before the trespass referred to in paragraph 9 above.
(11) Sometime in 1967, Bakare Shodeke, Lamidi Olosunde, Yakubu Shodeke and Amidu Ige, purporting to represent themselves and the Onimaba family instituted action for declaration of title, trespass and injunction against the 5th and 6th defendants their wrongful acts as stated in paragraph 9 above.
(12) The land in dispute is the communal land of Igando and not the Onimaba Chieftaincy and the plaintiffs in Suit NO. IK/21/67 Bakare Shodeke and others v. Mojidi Pelu and others have no right or claim to the said land.
(13) The defendants have all denied the rights of the Igando Community to the said land, which denial is an act of misconduct justifying forfeiture of the right of occupancy of the land by the 1st-4th defendants of which they are customary tenants of the Igando Community.
(14) Olosunde, ancestor of Lamidi Olosunde the 2nd plaintiff in Suit IK/21/67; Bakare Shodeke and others v. Mojidi Pelu and others was a customary tenant of the Igando Community and not a member of the said community who own the said land and has no right or authority to represent the Igando Community.
Whereupon the plaintiffs for themselves and as representing the Igando Community seek against all the defendants, declaration of title as absolute owners in accordance with Yoruba Native Law and Custom to all piece or parcel of land verged “Pink” on Plan AL 70/68
“(2) Declaration that the 1st–4th defendants as customary tenants of the Igando Community have on ground of misconduct forfeited their rights to occupy the area of land verged “Yellow” on the plan No. AL 70/68.
(3) As against all the defendants an order of injunction restraining the defendants, their agents and or servants from trespassing on the said land verged “Pink” on the plan aforesaid.” By an amendment with leave of court, the 1st – 4th respondents made the above averments thus: –
“Save and except as is hereinafter expressly admitted, the 1st – 4th defendants (hereinafter called “these defendants”) deny each and every allegation of fact contained in the statement of claim as if the same were set out seriatim and specifically traversed.
(3) These defendants aver that the land shown edged in pink on the plan attached to the statement of claim is the absolute property under native law and custom from time immemorial of the “Beku-Onimaba Family”.
(4) The said land now commonly known as Ile-Igando or Igando land was first settled upon well over 300 years ago by one Beku, a hunter who hailed from Ile-Ife and bore the title Onimaba after a spot in Igando land known as Maba where he made his settlement.
(5) The said Beku begat many children and his descendants are now known as the Beku Onimaba Family or Onimaba Family.
(6) The said Onimaba family are the owners of all Igando lands and are the Igando people. (a) In further denial of paragraphs 1 and 4 of the Statement of Claim, these defendants aver that the plaintiffs are not landowners but customary tenants of Beku Onimaba Family.
(7) The Onimaba family have been in full and exclusive possession of their family land from time immemorial by themselves and through the numerous tenants of the family. (8) These defendants plead and will rely on the judgments in:- (a) Suit No. 67/1916: Olosunde v. Idowu & Ors. (b) Suit of 1903: Olosunde v. Ilo & Ors. (c) Suit 17/33: Iroko Agboko v. Ayi Shabo.
Wherefore these defendants will contend that the plaintiff’s claims are misconceived in law and in fact and ought to be dismissed.”
The 5th and 6th defendants in their statement of defence relied inter alia on the following averments: –
“(4) Save that the area of land which the defendants are in full and undisturbed possession as per plan No. SEW/W1299 is not part of Igando Communal land, the defendants admit paragraph 8 of the Statement of Claim.
(5) Save that defendants deny committing wrongful acts, the defendants admit the rest of paragraph 11 of the Statement of Claim and state further that the land the subject matter of Suit IK 21/67 forms portion of their family land owned and possessed by them according to Yoruba native laws and customs.
(6) Save that the defendants have a common boundary with the Igando people, as per the plan referred to in paragraph 4 above, the defendants deny paragraph 13.
(8) The defendants aver that the land referred to in paragraph 6 above is the absolute property of the Osunba family of which they are members.
(9) The defendants aver that the said Osunba family have been in exclusive and undisturbed possession of their family land including part of the land in dispute from time immemorial.
(10) The defendants will at the trial lead evidence to show their act of possession e.g. huts, walls, shrines of gods worshipped by Osunba, their progenitor.
(11) The defendants will contend that they were lawfully on their lands and that at no time did the plaintiffs’ family farm on the lands on which some Igando people are tenants.
Whereof the defendants will contend that the plaintiffs’ action is misconceived in law and fact and should be dismissed.”
The pleadings were brought to a close by the following reply filed by the appellants: – “In reply to the defence of the defendants named above, the plaintiffs deny each and every allegation of fact contained in the Statement of Defence:
(1) The plaintiffs join issue with the defendants on their defence.
(2) Beku Onimaba was not the first settler on the land in dispute nor had he or any other person claiming through him any interest in the land in dispute.
(3) The plaintiffs deny that the 5th and 6th defendants are descendants of Osunba, and aver that neither they nor their ancestors have any title, interest or right to the land in dispute.
(4) The Igando Community comprises of the descendants of Kudaki and Otegbola who together with one Osidana were the original settlers on the land now known as Igando Community land.
(5) Osidana had no issue.
(6) The descendants of Kudaki and Otegbola are now known as Igando people or Igando Community and are the present owners of the land in dispute.
(7) The defendants are not descendants of either Kudaki or Otegbola and are not co-owners with the plaintiffs on the land in dispute.”
With the issues in controversy between the parties set out as above, the action proceeded to trial and, after hearing evidence, at the end thereof, the learned trial judge dismissed all the claims as against the two sets of respondents. This appeal is against the said dismissal. Before us, learned counsel representing the appellants sought leave to substitute new grounds of appeal for those originally filed. The substituted grounds, three in number, read as follows: –
“(a) That the learned trial judge misdirected himself in law and on the facts when he held that the onus of proof was not on the defendants but on the plaintiffs who in their Writ of Summons, Statement of Claim, and in their evidence before the court claimed the land in dispute for the Igando Community.
(b) That the learned trial judge misdirected himself in law and on the facts when he failed to grant the plaintiffs’ claims even though the defendants did not by their evidence establish the title claimed by them and there was no plea for relief from forfeiture.
(c) Judgment is against the weight of evidence.”
Learned counsel appearing on behalf of the appellants in arguing the 1st ground of appeal sought to rely on the decision in Eze v. Igiliebe & 5 Ors.14 WACA p.61 and urged us to hold that, in as much as the appellants by their pleadings and evidence had claimed the land in dispute on behalf of the Igando Community, the onus was on the respondents to establish the contrary. With respect to learned counsel, this submission seeks to apply to the case in hand, the ratio decidendi in the Eze case (supra) based on the peculiar facts established in the said case, thus completely ignoring the very narrow area on which issues were joined on the pleadings in the latter case.
As has been shown earlier on in the excerpts from the pleadings of the parties, the contentions on either side are mutually incompatible; and no question therefore arises as to the onus of proof shifting on the defendants. The appellants say in their reply that they, the descendants of Kudaki and Otegbola constitute exclusively the Igando community and that the respondents who are not so descended are not co-owners of the land in dispute with them.
Similarly, the 1st-4th respondents say that they, the descendants of the Beku-Onimaba family constitute exclusively the Igando Community, while the appellants who are not so descended are their customary tenants. Again the 5th and 6th respondents laid claim to the land on behalf of their family, the OSUNBA family. This in our view, was a straight issue of fact as to which the learned trial judge observed inter-alia as follows:- “Although the plaintiffs took this action on behalf of those they claim to be Igando Community it is clear that they sue on behalf of the descendants of Kudaki and Otegbola.
There is no evidence that all other people of Igando except 1st – 4th defendants descended from these two people. The plaintiffs’ evidence excludes the 1st – 4th defendants who are also part of the Igando Community. This case seems to me to be one of a dispute between two families, the descendants of Kudaki and Otegbola on the one hand claiming an area of land against another family, the Beku-Onimaba Family on the other.
This is the reason why evidence of the plaintiffs and the 1st – 4th defendants conflicts on the issue of who was the first settler at Igando. I do not agree with Mr. Sikuade that the burden of proof in this case has been shifted and the onus is on the defendants simply because the plaintiffs say that they sue on behalf of the Igando Community. The plaintiff who is claiming a declaration still has to prove his case.” We are in no doubt that the above observations of the learned trial judge are correct and accordingly, this ground of appeal fails. Learned counsel obviously found himself in considerable difficulty with grounds 2 and 3 which he dealt with together.
We, ourselves, were at a loss to comprehend how it would have been open to the learned trial judge to grant the appellants’ claims after rejecting the evidence tendered in support thereof. Having rejected the said evidence, the necessity for seeking relief against forfeiture would not have arisen.
These grounds also failed. We found no merit in this appeal and decided not to hear the respondents in reply. The appeal is accordingly dismissed and the judgment and orders of the High Court are affirmed. The two sets of respondents are each allowed costs in this court assessed at N210.
Other Citation: (1976) LCN/2308(SC)