Chief Ebenezer Awote & Ors. V. Alhaji Sunmola Kadiri Owodunni & Anor (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C 

This case started from the Customary Court -from the Ijebu-Ode Grade “A” Customary Court. There the Plaintiffs claimed the following reliefs:-

(1) Declaration of title in accordance with customary law to all that piece or parcel of land situate lying and being along Ijebu-Ode/Ibadan Road, Ijebu-Ode at the back of Chief T.A. Odutola’s compound, Ijebu-Ode as the property of the Plaintiffs’ family, to wit, the Oliwo Agbadagbodo Family (otherwise known as and called Olore Family Nigeria). The value of the land is 250.00pounds (Two Hundred and Fifty Pounds).

(2) Two Hundred and Fifty Pounds being general damages for the trespass committed on the said land by the defendant on or about the 24th day of June, 1968, and

(3) Injunction restraining the Defendant, his agent, servants or assigns from any further act of trespass on the said land.

This being a case commenced in the Customary Court there was no order for pleadings and plans to be filed and exchanged.

After hearing evidence from both sides the learned President of the Customary Court dismissed the Plaintiffs’ claim. This was on the 21st day of May, 1973. The Plaintiffs then appealed from the Customary Court to the High Court Ijebu-Ode in its appellate capacity. Coker, J. (as he then was) allowed the Plaintiff’s appeal and set aside the judgment of the Customary Court.

The Defendant dissatisfied and aggrieved by the appeal judgment of the Ijebu-Ode High Court then appealed to the Western State Court of Appeal which allowed the Defendants’ appeal, set aside the appeal judgment of Coker, J. (as he then was) and restored the original judgment of the Ijebu-Ode Grade “A” Customary Court. The Plaintiffs again dissatisfied and aggrieved have now appealed to the Supreme Court of Nigeria on four grounds of law and one of facts. The parties also filed and exchanged Briefs of argument.

All the three Courts below reviewed the traditional histories of the parties and in obedience to the principle postulated in the now famous case of Kojo v. Bonsie (1957) 1 W.L.R. 1223 at pp. 1226/1227 they also considered the acts of possession of the parties on the land in dispute. An investigation into whether the 3 Courts below correctly assessed the traditional evidence of the parties and whether or not they related this evidence to the recent acts of possession of the parties will become necessary only when there is certainty as to the area in dispute.

Identity Location and Extent of the land in dispute

In this appeal I will confine myself to the identity, location and extent of the land in dispute. I will therefore refrain from expressing any views on other aspect of this case. There is no doubt that the onus – (and a very heavy onus it is) is on a plaintiff/claimant asking for a decree of declaration of title to show clearly the area of land to which his claim relates. Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159 refers. The plaintiff can do this by such oral description of the land that any Surveyor acting on such description can produce a plan of the land he claims – see Kwadzo v. Adjei (1944) 10 W.A.C.A. 274. Another and perhaps better way of proving the identity and extent of the land claimed is by filing a plan reflecting all the features of the land and showing clearly the boundaries: Udofia & Anor. v. Afia & Ors. (1940) 6 W.A.C.A, 216: Udekwu Amata v. Udogu Modekwu (1954) 14 W.A.C.A, 580.

Where the parties own land along a common boundary. It is necessary to show and prove the precise boundary features along that common boundary: Okorie v. Udom & Ors. (1960) 5 F.S.C. 162.

In the case now on appeal, the following plans were tendered:

1. Plan No. BK 7458 was tendered by the Plaintiffs as EX.A.
2. Plan No. BK672 (Plaintiff’s Plan) was tendered by the Plaintiffs as EX.B.
3. Plan S.A.P.l40/62 (Defendants’ plan) was tendered by the Plaintiffs as EX. C.
4. Plan S.A.F./122/63 (Defendants’ Plan) was tendered by the Plaintiffs as EX.E.
5. Plan No. 8699 (Defendants’ plan) was tendered by the Defendants as EX.F
6. Plan No. L&L/A9009 (Defendants’ plan) was tendered by D.W.7 as EX.Z.

The interesting thing about the plans tendered in this case is that some of them were made ante motam litem while others like EX. C were plans used in previous proceedings in which the Defendants were parties. Any admission made by either side in any of those plans will now in this case be regarded as an admission against interest. Each party is therefore entitled to rely on such admission against interest in proof of his own case Aduke & Anor v. Aiyelahola (1942) 8 W.A.C.A. 43 at p. 45: Akinola & Anar. v. Oluwo & Ors. (1962) W.N.L.R. 133 at p. 134.