Azeez Akeredolu & Ors. V. Lasisi Akinremi & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The appellants herein, as plaintiffs, on behalf of themselves and the members of Ilugba family of Iga Ilugha, Otta, instituted an action against the respondents in the High Court at Ilaro Egbado, Abeokuta Judicial Division of Ogun State, claiming in their Amended Writ of Summons as follows:

“1. Declaration of title to the piece or parcel of land situate lying and being along Lagos/Abeokuta Road, Otta, Ogun State.

2. N200.00 (Two Hundred Naira) damages for trespass committed by the defendants for entering, surveying and clearing the land without the permission, consent or approval of the plaintiffs sometimes in 1976.
3. Injunction to restrain the defendants, their privies, servants or agents from committing further trespass on the land or alienating the land.
4. An order of Forfeiture against the 1st to 4th defendants of whatever right or interest they have in any part of the land in dispute. Annual value of the land is N20.00.”

The plaintiffs’ case, briefly put, was that some 200 years ago, their ancestor – Ogundamija Amore, migrated from Ile-lfe to Otta where he put up for some time with one Elerinko. It was their case that later Elerinko showed a parcel of virgin land to their ancestor on which he eventually settled, and which place became known as ILUGBAMI. Amore, with his three children built a house on the land which was not partitioned. The 1st, 3rd and 4th plaintiffs claimed to be descendants of Amore. They also claimed that in exercising their rights of ownership, their ancestors granted parcels of land to various people including the ancestors of the 2nd, 3rd and 4th defendants. It was also their case that one of their ancestors, Bamgbowu, sold a portion of the land to one Oyatogun in 1938 who later sold it to Amodu Igbira. Amodu Igbira is the 9th p.w. They finally averred that in 1976, the 1st – 6th defendants sold part of the land to 7th defendant and contended that they had no right to do so. The area in dispute is shown in ‘Green’ in Exhibit ‘A’.

The defendants’ case on the other hand, was that the land in dispute was part of a large area of land originally settled upon by one Elo Oja who was their ancestor, and who had migrated to the place from Ile-Ife over 250 years ago. It was their case that Elo Oja built a house on the land and cultivated part of it. They claimed that the place later developed into a village called Oja Village which was so named after its founder. The village, however, later became known and called Isorosi village because of a popular Bale by name Isorosi who was the son of Fabi. They averred that about 50 years ago, members of the defendants’ family erected a mosque on part of the land which mosque was rebuilt about 10 years ago. They claimed that the children of Elo Oja – Oyege, Odu Okita, Bankole, Odugbayi and Telika – are their ancestors.

Before the conclusion of the hearing, on the application of the plaintiffs’ counsel, the learned trial Judge visited the locus in quo. At the conclusion of the trial and counsel’s final addresses, the learned trial Judge meticulously reviewed the totality of the evidence adduced by both parties. He then considered which of the parties, on the evidence before him, had successfully established his claim to the land in dispute in any of the various ways for acquiring title to land enunciated by this court in Idundun & Ors. v. Daniel Okumagba (1976) 9/10 S.C. 227. He thereafter made some specific findings of fact in his judgment. With regard to the traditional evidence adduced by the parties, he concluded as follows:-

“There is abundant evidence from the plaintiffs’ witnesses and the defendants’ witnesses that the 1st, 2nd, 3rd, 4th and 6th defendants have farms on the land in dispute. The 7th plaintiff witness also said that the 5th defendant has farm on the land in dispute. It is significant that the plaintiffs did not show that the 1st, 2nd, 3rd, 4th and 5th defendants have farms on the land in dispute. The defendants not only showed that they have farms on the land in dispute but on the land around the land in dispute. On the whole, I hold the view that the plaintiffs have not proved their claim to the land in dispute by traditional evidence.”

As to whether the plaintiffs had led evidence of acts of ownership extending over a sufficient period of time, which were numerous and positive enough to justify the inference that they were the owners of the land in dispute, he came to the conclusion that, on the evidence adduced, they had not done so. With regard to acts of long possession and enjoyment of land which may be prima facie evidence of ownership, his finding was:-

“The evidence before the Court is to the effect that it is the defendants who have been in possession and enjoyment of the land for a long time.”

He also considered proof of ownership as provided for in Section 45 of the Evidence Law and came to the conclusion that, on the evidence of the plaintiffs’ 4th witness – Karimu Okoosi, who in his cross-examination admitted buying a farm land from a member of the defendants’ family, which farm land was within the land in dispute, the probability was that the defendants owned the land in dispute. He finally arrived at the conclusion that in his judgment the plaintiffs “have not established their case within Section 134 of the Evidence Act.” He accordingly dismissed the plaintiffs’ case in its entirety.

Being dissatisfied with the decision of Delano, J., the plaintiffs appealed to the Court of Appeal on a number of grounds, and that Court, in a unanimous judgment delivered on the 10th of April, 1985, dismissed their appeal and affirmed the decision of Delano, J.

Against the judgment of the Court of Appeal, appellants have, with the leave of the Court, filed the following grounds of appeal:-

“GROUNDS OF APPEAL

1. The Court of Appeal erred in law in upholding the finding of the learned trial Judge to the effect that the land claimed by the plaintiffs is not certain when an action for declaration of title is an action in personam and hence the fact that it is shown that one of the parties to the action had sold the land to a third party is generally irrelevant unless the other party is relying on the title of that third party.
2. Having found that there was justification for the criticism of the appellants’ counsel regarding the inferences drawn by the learned trial Judge from his visit to the locus in quo, the Court of Appeal erred in law in failing to set aside the proceedings and judgment for the aforesaid irregularity.
3. The Court of Appeal further erred in law in holding that the decision of the learned trial Judge to disregard any evidence in support of the Reply did not cause any actual miscarriage of justice when it is patent that there must have been miscarriage of justice.
4. The Court of Appeal was wrong on the facts to have upheld the findings of fact of the learned trial Judge.”

Briefs of argument were filed by both parties and were relied upon in oral argument before the Court. Arising from the grounds of appeal, the issues for determination as set out in the brief of Chief Williams, S.A.N., for the appellants, are as follows:-