Babalola Adisa Vs Yesufu Ladokun (1973)

LawGlobal-Hub Lead Judgment Report

SOWEMIMO, J.S.C.

This is an appeal against the judgment of the Western State Court of Appeal in Suit No. CAW/82170 delivered on 18th March, 1971 whereby the judgment of the High Court, Ibadan (Aguda J.) in Suit 1/17A/67 was set aside.

The action, which is the subject matter of this appeal, originated from the Customary Court, Olode Grade ‘B’ in Suit No. S13/64. The plaintiff’s claim in that court reads:

“(1) Title to ownership and recovery of plaintiffs father’s farmland siutate and being at Olode village via Aiyegun, Ibadan District bounded on one side by Ajota, second and third sides by Adekomi, fourth side by Apabielesin, bisected by Olode stream from the defendant. The farmland valued about 100(pounds).

(2) Injunction restraining the defendant, his servants, agents, family or anybody claiming through him from further trespassing therein and thereon the farmland.

(3) Any other relief which the Court can afford.”

The case was tried in the Olode Customary Court Grade ‘B’ by a President assisted by four assessors. After the trial, the President of the Grade ‘B’ Customary Court made the following findings:

“From the evidence so far available the farmland forms part of many farmlands belonging to Aresa descendants of whom both the plaintiff and the defendant are integral part. The said Aresa was the father of Okiti and Latoyan whose children are now disputing ownership of the said farmland. The two sides agreed that Okiti died “during Kiriji war: the plaintiff stated that it was at this time ihat Latoyan as the surviving eldest son of Aresa, and the young brother of the deceased Okiti, inherited Okiti’s farmland now in dispute. But the defendant and his witnesses maintained that the fann had always been that of Latoyan and was not inherited. ”

“As previously pointed out I cannot overlook the evidences of the first, second and fourth plaintiff’s witnesses, who are considered important members of the family, particularly that of the second plaintiff’s witness Sadiku Olubode, who stated he is also a grandson to Latoyan and that his own father once inherited the farmland in dispute.

“In view of these evidences, I am satisfied that:

“(a) The farmland was that of Okiti

(b) That the farmland was inherited by Latoyan in accordance with the customary practice of that age.

(c) The land had changed hands since inherited exclusively within Latoyan children.

(d) The farmland had since been developed in part on basis of modern Agriculture

“Judgment is entered in favour of the plaintiff: There is no order as to cost.”

It is perhaps pertinent, at this stage, to mention the evidence of the custom at the time Latoyan was said to have “inherited” Okiti’s farmland. This was set out in the evidence of Yesufu Adedapo, 4th plaintiff’s witness, who was called after inspection of the farmland, the subject matter in dispute. This witness deposed to the fact that in accordance with the custom at that time (before and after the Kiriji war) Latoyan took possession of the farmland pending the attainment of maturity by Okiti’s children.

This evidence of the custom at that time was not challenged by the defendant at the trial and it was, as we shall later show, tacitly accepted by the President of the Customary Court Grade ‘B’.

The defendant appealed to Grade ‘A’ Customary Court, Ibadan, against the judgment of the Grade ‘B’ Olode Customary Court. Five grounds of appeal were filed. They are as follows:

“1. That the whole of the proceedings is a nullity because the Assessor was changed from the time during the hearing of the case.

“2. The trial President erred in law in giving judgment for the plaintiff after holding that:

“(a) the farmland in dispute was inherited by defendant’s father since Kiriji War (i.e. 1880):

(b) the village on the land is exclusively inherited by Latoyan’s children. .

“3. The trial President erred in law for failing to invoke the doctrine of larches acquiescence and long possession in favour of the defendant.

“4. That the trial President erred in law for failing to give sufficient consideration to the appellant’s case.

“5. Judgment is against the weight of evidence.”

The President of the Ibadan No.2 Grade ‘A’ Customary Court, Agodi, stated in his judgment that the appellant abandoned ground 1 and his counsel argued only grounds 2, 3, 4 and 5. Learned counsel for the respondent replied to the submissions of the appellant’s counsel. The President also referred to the cases cited by both parties but made no comments on them. He further said:

“In deciding this appeal I am going to deal with the 3rd, 4th and 5th ground of appeal mainly, which depend on the weight of evidence before the Court.”

The President examined the plaintiff’s evidence on the devolution of the farmland in succession to the descendants of Latoyan, who ‘inherited’ the farm from Okiti. He also referred to the defendant’s claim that the farmland in dispute was never inherited from Okiti by Latoyan, but that the farm was originally Latoyan’s. The President examined the evidence of defendant’s witnesses, which he said ‘confirmed’ the case of defendant. The judgment of the Grade ‘A’ Customary Court reads:

“If all these were so, it is improper for the children to take back the farmland on which the defendant’s family have grown up economic trees. It is pertinent to mention here that evidence revealed that there were instances mentioned of inheritance of farmland without economic trees, as well as inheritance of (personality). But this would not necessitate the recovery of farmland in which the man from whom recovery is sought has planted grown up cocoa trees. I have come to the conclusion that if in fact Latoyan inherited the farmland from Okiti as a caretaker, the appropriate time to get it would be when Latoyan died, but instead the farm went to his children and grandchildren who planted economic trees there, by this, the plaintiff is caught by the doctrine of laches and acquiescence which the belated family ruling of some 6 years cannot cure. Therefore the plaintiff’s claim ought not to have been sustained. I hereby set aside the decision of the lower Court and I dismiss the plaintiff’s claim and allow the appeal.

We wish to draw attention, however, to the fact that the above decision did not set aside the finding of the Customary Court Grade ‘B’, Olode, that Latoyan ‘inherited’ the farmland from Okiti. Rather, it upheld the fact, as found by that Court, that Latoyan was not the original owner of the land as claimed by the defendant. .

The plaintiff appealed to the High Court Ibadan, against the judgment of the Grade ‘A’ Customary Court, which dismissed his claim on the ground that his title to the land ought not to be “sustained” because of the defence of laches and acquiescence. The President of the Grade’ A’ Customary Court did not consider the fact, as found by the lower Court, that the plaintiff “had consistently from time to time demanded the return of the farmland of Okiti”, the original owner. Learned counsel, who appeared in the Grade , A’ Customary Court for the plaintiff, made the point that the plea of laches and acquiescence was not applicable to the case, because of the several demands made to him and others before him at different periods. We wish to point out that, although the President of the Grade ‘A’ Customary Court dismissed the plaintiff’s claim for declaration of title and injunction, what he actually said was that plaintiff’s claim “to recovery of the farmland is caught by the doctrine of laches and acquiescence” which he held was applicable to the case. The fact established by evidence was that the plaintiff had been in possession for about six years before the action was instituted in the Grade ‘B’ Customary Court Olode. It was because the defendant disturbed the plaintiff whilst he was thus in possession that the former instituted his action seeking also for the relief of injunction.

At the hearing of the appeal before the High Court Ibadan learned counsel for the defendant supported the judgment of the Grade ‘A’ Customary Court that on the facts the plea of larches, acquiescence and long possession was properly considered to be applicable to the case. He concluded his reply to the argument of learned counsel for plaintiff thus:

“The village on the land is exclusively inherited by the defendant’s father. If the court grants the plaintiff’s declaration, then the defendant will be entitled to remain on the land the portion where he farms subject to right of reversion in case of abandonment or alienation or attempted alienation. ”

This was definitely contrary to the case of defendant in the Grade ‘B’ Customary Court. This submission is also not consistent with the decision given in favour of the defendant in the Grade ‘A’ Customary Court.

The learned judge, after considering the arguments before him, allowed the appeal and restored the judgment of the Grade ‘B’ Customary Court. He set out clearly in his judgment, the effect of the judgment of the Grade ‘B’ Customary Court in relation to the claim of the plaintiff. In a very careful examination of the arguments and the facts he outlined the case as follows:

“The case for the plaintiff was that the land which thus passed to Latoyan was to be handed by Latoyan to Okiti’ s children on their attaining maturity but it was the case of the defendant that Latoyan inherited the land in his own right from his father Aresa. The trial Court rejected the case of the defence, in this regard and that rejection has not been seriously challenged since then-neither before the Grade ‘A’ Customary Court nor before me. The effect of this is that the fact found by the Grade ‘B’ Customary Court must be taken as proved by this Court as there is sufficient credible evidence in support of that Court’s finding. So it is that Latoyan inherited the land in dispute on condition that he was to hand it over to the children of Okiti on their getting old enough to inherit the land.’

“On these facts, counsel for the defendant/respondent submitted that the equitable plea of laches, acquiescence and long possession would bar the claim of the plaintiff/appellant. I am afraid I am unable to accede to this submission in view of the fact that the trial President believed on the evidence of three witnesses that the appellant’s predecessors (children of Okiti) had always at different times demanded for the return to them of the land in dispute. In these circumstances, the plaintiff/ appellant’s claim to a declaration of title is bound to succeed as the evidence of long possession by the defendant and his ancestors in the circumstances (the possession has been challenged from time to time) can hardly be held to be sufficient to dislodge the plaintiff’s customary law title. ” It has been held that, under Yoruba customary law, laches and acquiescence cannot be a bar to the undoubted right of the children of a deceased person to succession. In this respect, we refer to the case of Taiwo & Anor vs. Taiwo & Anor (1958) 3 F.S.C. 80 at page 82 where Hurley, Ag. F.J., in delivering the judgment of this Court, said:

“In the present case the rights of the parties depend on native law and custom, not on any dealings between individuals giving rise to private rights which the passage of time might have made more difficult to establish. vidence relevant to the native law and custom governing the case is as available now as it was 14 years ago. In my view, the defendants’ inactivity, by itself and unaccompanied by any other circumstances which would make it fraud or unconscionable on their part to maintain whatever rights they may have to share in Rosannah’ s estate, has not relieved the plaintiffs from the burden of showing positively that the native law and custom in this matter is what they assert it to be. It still rests with the plaintiffs to show that native law entitled them to succeed to Rosannah’s share to the exclusion of Frederick’s children.”

The defendant, who lost in the High Court, appealed further to the Western State Court of Appeal. Before that Court, there were concurrent findings of fact of the Grade ‘B’ Customary Court, Grade ‘A’ Customary Court and the High Court as follows:

(1) That the farmland, the subject matter of the action, belonged to Okiti originally, and, therefore, the surviving children of Okiti had, under Yoruba customary law, an undoubted right to succeed to his estate i.e. the farmland in dispute.

(2) That when Okiti died, Latoyan his younger brother took possession of the farmland under the custom prevailing at that time, that is, on behalf of Okiti’s children, and this was to be handed over to them when they attained maturity. Although there was no specific finding, there was evidence of Yesufu Adedapo, deposed to after inspection of the farmland, which was not challenged and his evidence was tacitly accepted by the court. His witness deposed as follows:- .

“My father was Oyedokun, who was born by Adekomi. Adekomi himself was the junior brother to Okiti and Latoyan, grandfather of the plaintiff and defendant respectively. My father’s farm that is Adekomi’s has a Common boundary with Okiti. I know that the village now called Adesugha was that of Latoyan, which he erected in his farm, the farm also has a common boundary with Adekomi on that side. Akinbolu, the youngest of five brothers, had a common boundary with Latoyan and with late Chief Oyesina. The four brothers have four different farms here, at Ogbere, at Anaya and at Ogede Oboro so that there should be no dispute over any of the farms. The farm and the village which was that of Latoyan is the one now occupied by Adesugba’s children. Adesugba himself was a slave to late Oyedun, father of the present Chief Oyewusi Ajao, 2nd plaintiff’s witness. He was inherited by Latoyan, father of the defendant and placed in his village. I remember the matter was taken before the late Chief Oyesina. At that time it was settled and decided that Latoyan’ s children should pay ten tins of oil to Okiti’s children annually. I together with Chief Oyewusi begged that the number be reduced to six, but Latoyan’s children refused. The farm in those days was inherited by Latoyan, in accordance with the custom of the time until the children grew up, but in this case Latoyan’s children refused to surrender the farm.”

(3) That at a family meeting, in which both parties were present, the farmland in dispute was surrendered to Okiti’s children by Latoyan’s children and this took place almost 6 years before the present action was instituted.

(4) That the farmland was surrendered to Okiti’s children after several demands “from time to time” for its return by them from Latoyan’s children.

(5) That when defendant started to disturb the plaintiff in the farmland, this action was instituted.

(6) That when a person dies, the settled Yoruba customary law prescribes that his surviving children and no one else should succeed to his estate.

At the hearing of the appeal before the Western State Court of Appeal, learned counsel for the defendant argued the nine grounds of appeal filed by him together and made three submissions covering the nine grounds, which were referred to in the judgment of that Court. The counsel for the defendant replied.

The whole tenor of the judgment of the Western State Court of Appeal was that the finding of the Customary Court Grade ‘B’ did not support that of the High Court that Latoyan inherited Okiti’s farmland conditionally and not absolutely. It held it was wrong for the High Court to hold that it was a conditional inheritance. With respect, it appears to us, that the Western State Court of Appeal misconceived the nature of the claim and the issue joined for determination, which was what was decided upon in the Grade ‘B’ Customary Court. The case of the plaintiff was that the farmland originally belonged to Okiti. The defendant’s case was that his ancestor Latoyan did not inherit the property from Okiti, that he-Latoyan-originally owned the land which, by Yoruba customary law, Latoyan’s children and grandchildren inherited it in succession. It was a straight issue of fact as to whether the ancestor of plaintiff or that of the defendant, originally owned the land. The Grade ‘B’ Customary Court decided that the farmland originally belonged to Okiti, and not Latoyan. On that finding, the Grade ‘B’ Customary Court decided the claim by granting a declaration of title in favour of the plaintiff,as a descendant of Okiti. The question of inheritance, whether absolutely or conditionally, was never in issue. This finding had not been challenged in the Customary Courts Grade ‘A’ , in the High Court, and in the Western State Court of Appeal.

It is settled Yoruba customary law, as we pointed out earlier, that when a deceased person dies leaving children surviving him, his or her children will inherit his property. Applying that customary law to this case, we hold that Okiti’s children and grandchildren as his descendants will inherit the farmland left by Okiti. This being the case, the President of the Grade ‘B’ Customary Court was right in granting the declaration of title to the plaintiff. In Adesoye & Others vs. S.F. Taiwo & Others 1 F.S.C. 84 Jibowu Ag. F.C.J., in delivering the judgment of the Federal Supreme Court said as follows:

“It is quite clear that real properties of a deceased person who had children surviving go to his children, not to his uncles, aunts and cousins. There can, therefore, be no doubt that neither the Plaintiff nor the persons through whom they claim blood relationships with Chief D.C. Taiwo could inherit or take a share of the real property which, by native law and custom, belongs to children and descendants of the deceased.”

The President of the Grade ‘A’ Customary Court set aside the judgment of the Grade ‘B’ Court, not because the Yoruba customary law of inheritance, as stated above, was not applicable to the case, but because the plaintiff is barred from claiming “recovery” by the plea of acquiescence and laches.

The High Court held that the plea was not applicable because (1) Latoyan “inherited” the farmland of Okiti, his deceased elder brother, on condition that he was to surrender the property to Okiti’ s children on attaining maturity also (2) that the children and descendants of Okiti had always demanded the return of the land of their deceased ancestor.

The Western State Court of Appeal, in a considered judgment, stated thus:

“To our mind the whole issue in this appeal resolved itself thus:

(1) Whether there was evidence, or not, before the Grade ‘B’ Customary Court, which heard the case in the first instance, as to whether the land was inherited by Latoyan on condition that it should be returned to the children of Okiti when they attained certain age, and

(2) Whether there was evidence that that was the custom at the time of the inheritance.”

The Western State Court of Appeal then referred to the evidence of Yesufu Adedapo about the custom that was prevailing at the time Okiti died, which we quoted above in this judgment. Shortly put, it is that the brother of a deceased person, who leaves infant children surviving him, may have his property “inherited” by a younger brother until the children grow up to “inherit” it. The judgment of that Court continues thus:

“To our mind, this is not the case of the Plaintiff. At no time did the Plaintiff base his case on conditional inheritance. The evidence of Yesufu Adedapo therefore, could not be held to be in support of Plaintiff’s case. In fairness to the Grade ‘B’ Customary Court, at no time throughout its judgment did that Court base its decision on a conditional inheritance. The Grade ‘A’ Customary Court did not fall into the error either. In any event, this piece of evidence could not be held to be proof of the custom that that land was to be held conditionally upon the attainment of age of the Plaintiff. As we have said, there was evidence that “the children of Okiti had always at different times demanded the return of the farmland. “But with respect to the learned judge, to make demand for the return of land is one thing, to have basis for such demand is a completely different thing. It is this basis that must be proved for the Plaintiff to succeed.”

The basis was proved and accepted by the Grade ‘B’ Customary Court that Okiti, their ancestor, owned the farmland and which devolved on his descendants. In our view, the Western State Court of Appeal, with respect would seem to have lost sight of the issues involved in this case.

The plaintiff claimed declaration of title to the farmland as a descendant of Okiti. The defendant, on the other hand, claimed to inherit the land, which, according to him, belonged originally to Latoyan his ancestor. The Grade ‘B’ Customary Court found that the property originally belonged to Okiti, and that it therefore, according to Yoruba Customary Law, devolved on his children and their descendants. That Court therefore granted the declaration of title to the plaintiff as a descendant of Okiti. The question of conditional or absolute inheritance has nothing to do with the claim for declaration of title.

The onus is on the defendant to prove such fact as will deprive the plaintiff of his title. By virtue of the defence of the defendant that Latoyan originally owned the land in his own right which was not believed, as well as the claim that it devolved on him as his descendant, the defendant did not discharge the burden of proof placed on him to prove such right as would displace plaintiff’s established title. It is clear that on the facts as found by the Grade ‘B’ Customary Court, and applying the Yoruba Customary Law of inheritance to those facts, Latoyan, an uncle of Okiti’s children was excluded from inheriting the farmland of Okiti. The Western State Court of Appeal, was therefore in error to hold, as they did, that the case of the plaintiff depended on proof of some conditional inheritance.

With regard to the plea of laches and acquiescence, on which the Grade ‘A’ Customary Court allowed the appeal and set aside the judgment of the Grade ‘B’ Customary Court, the Western State Court of Appeal had this to say:

“The learned judge’s examination of issue of equitable defence of laches and acquiescence could, also, not be right, as he had fallen into the original error of finding a conditional inheritance in the defendant. For, in our view, it is this error that led the judge to hold, as he did, that laches and acquiescence would not avail the defendant to whom persistent demands of the return of the land have been made, more so, when he, the defendant, was regarded all along as holding the land for a limited period, that is, till the Plaintiff would have attained maturity.”

Finally, there is no basis for the conclusion reached by the learned judge that the “defendant’s ancestor, Latoyan, knew that he was not the owner of the land in dispute” and that “his children knew or ought to have known that they ought not to plant cocoa on other people’s land”. The conclusion follows the initial error into which the learned judge had fallen.

With respect, we do not again share this view of the Western State Court of Appeal. The Yoruba Customary Law, we wish to emphasise, excludes any brother succeeding to a deceased brother’s estate, when the latter leaves children surviving him. The estate or farmland of Okiti is governed by this customary law. Whatever may be the intention of Latoyan in taking possession of Okiti’s farmland, such possession would not constitute any interest in the land under Yoruba Customary law of inheritance. No customary law gave him any title to the land. On the death of Okiti, the farmland became vested in his children, who, because of their tender years could not exercise their undoubted right immediately. This disability did not confer a customary right of title on Latoyan. He could, at the most, be described as being a caretaker in possession of the land until the disability of Okiti’s children was removed. If he, Latoyan, failed to return the farmland, when he should have done, or, if his children, in the mistaken belief that their ancestor, Latoyan, owned the farmland originally, and, therefore, refused to return the farm to Okiti’s children, on demands “from time to time”, then Okiti’s descendants, as owners, are entitled to institute this action. The equitable plea of laches and acquiscence does not apply to this case at all.

Finally, there is the fact that a descendant of Latoyan surrendered the farmland to the plaintiff, a descendant of Okiti, five years before the action was filed. The Western State Court of Appeal was therefore in error in applying the plea of laches and acquiescence as a defence to the plaintiff’s claim. As a matter of fact, the defendant never raised the defence of laches and acquiescence and no evidence was led about such a defence. We might point out as well that apart from the defendant not raising the pleas of laches and acquiescence, except that of planting economic trees, all the evidence, considered as constituting such defence, was abstracted from the evidence of plaintiff and his witnesses. This being a civil case, it is the duty of a court to consider the case of either party as an impartial stake holder, and to decide the case as made out by either party. The equitable plea of laches and acquiescence runs counter to the case of the defendant.

The appeal succeeds and it is allowed. The judgment of the Western State Court of Appeal in Suit CAW /82170 is hereby set aside. The judgment of the High Court, Ibadan, in Suit I/17A/67 which allowed the appeal against the decision of the Grade ‘A’ Customary Court restored the judgment of the Grade ‘B’ Customary Court in Suit S13/64 is hereby restored and upheld. The Plaintiff is hereby awarded costs of 60 Naira in the Western State Court of Appeal, and 152 Naira in this Court.

---

Other Citation: (1973) LCN/1679(SC)