Chief Wahab Gbemisola V. John Balarinwa & Anor (2003)

LawGlobal-Hub Lead Judgment Report

A.O. OMAGE, J.C.A.

This is an appeal against the judgment of Arasi J; sitting in the High Court Oyo State where on 9th day of January 1998, he delivered the judgment in favour of the plaintiff; respondent in this appeal. In the judgment the learned trial court ordered in favour of the plaintiff the following reliefs;
(A) A declaration that the area of land there in dispute between the plaintiffs and defendant, is in the statutory occupancy of the plaintiff/respondent; that is the area lying and being the tract of land, situates at Oke Igboho, stretching from behind Oke Igboho and other areas traditionally associated with Onigboho of Igbobo Agoro Orelope, Local Government of Oyo State.

The court ordered the sum of N50, 000,00 as damages for continuing trespass on the said tract of land; and an order for perpetual injunction to restrain the defendant/appellant; their servants, agents and privies, and against any person whosoever, who claims through the defendant, under or in trust from the defendants. The court also restrained the defendant from committing further trespass. The area of land over which the court made the court is as contained in the amended statement of claim of the plaintiffs; and it includes the following. The area or tract of land under Onigboho are Boni of Igboho, (2) Agoro Onigboho (3) Otun Agoro Onigboho (4) Baale of Igboho (5) Okelaba Onigboho (6) Sobaloju Onigboho (7) Iyalode Onigboho etc.

The defendants who are now the appellants are traditionally known as Chief Alomo; who is sued as representative of Alomo Chieftaincy Family. Here are the facts of the case in the court below. The plaintiff now respondent, by himself and through his 5 witnesses deposed as follows, that the land in dispute belonged to their ancestor; which therefore makes it a stool land; on which behalf the plaintiff as its representative commenced the action in the court below. The plaintiffs therefore are Onigboho of Igboho family; he deposed that the title of Onigboho derived from one Prince Tondi whose original home was Eruwa. He had sojourned to Igboho when instead of him his younger brother was instituted as a Chief in the chieftaincy contest; Tondi therefore went with his three wives and others to jingle, which he found to be full of big boulders and holes, where dangerous reptiles lived; hence the name Igbo iho Igboho for the place.

While there, one of Tondi’s wives who had hitherto not been blessed with a child conceived and was delivered of a child whom he named Sanya; because he believed his suffering had been compensated. In consultation with his deviners Tondi decided to stay in the dreaded wilderness of Igho Iho; and named the river he saw in the wilderness as Sanya. The plaintiffs’ deposed that Jakuta people were the last set of people to go to Igboho and they were given a portion of land of the stool to settle, which portion is now in dispute. Alomo is their head in Jakuta quarters. The boundaries of the land in dispute are as follows; Owode, Onigboho family land on the two sides, 3 Sanya stream. The area is demarcated on red on plan No.ADAKS59D/09/94 Exhibit P1. Plaintiff asked for judgment.

In their defence the defendant’s now appellant’s deposed that their ancestor was then granted the tract of land by the Alafin; who founded Igboho. The defendant named the Alafin as Egungunoju. The defendants’ are of the Alomo chieftaincy, house who has never been under the Onighoho of Igboho. He said the Alono chieftaincy title has under him, the Otunloja of Jakuta (2) Balogun of Jakuta (3) Agoro of Jakuta, Otun Agoro of Jakuta and Iyalode of Jakuta. The defendant deposed further that Tondi; the plaintiffs’ ancestor was a hunter, who in the hunting expedition got lost in the bush. Chief Boni of Isale Boni found Tondi wandering in the bush of Igboho town.

This event happened after the founding of Igboho town by the Alafin Egungunoju and his followers, He said when Tondi was found wandering in the bush, he had a big sore on his leg, but Chief Boni took Tondi to Alafin. Tondi he said was quartered in the compound of Olowo Njaye in Igboho some of the ten witnesses for the defendant said while conveying the corpse of his father to Oyo Ile for burial, Alafing Egungunoju saw two birds called Igbo and Oyo fighting. The king ordered the two bids bought to him; he regarded the two fighting birds as a good omen; ordered the birds to be killed, and thereafter settled on the land; which he called Oyo Igboho. On settling at Iju Sanya, Alafin Egungunoju began a reign till be died as was buried at Oyo Igboho. Alafin Abiba led his people away from Igboho town to Oyo Oro for another settlement.

During the lifetime of Alafin Egungunoju, he and his people were at Jakuta Ile. From Jakuta Ile, Alomo had been going to Oyo Ile to pay tribute to Alapata and Boni were some of the chiefs who were allotted portions of lands by the Alafin; to settle upon. Alapata was settled on what is called Abengo quarters. Boni at Isale Boni, the witnesses deposed that the land on which the Oke Igboho Baptist Primary School was built was granted by Alomo through Onigboho. He said Alomo and Jakuta community through self help constructed the road leading to Owode, to Waala. That the ancestors of the defendant had a shrine called Omolola, while they worshiped, which shrine is still on the defendants land to date said, many defendants have farmland with economic crops on the land now claimed by the plaintiffs. He urged the court to award judgment in his favour.

The plaintiff filed an amended reply to the defendants’ statement of defence, in which the plaintiffs’ deny the averments of ownerships of the land in dispute made by the defendants. At the hearing the plaintiff tendered several exhibit to establish his claim. As revealed above the court gave a reasoned judgment in favour of the plaintiff now respondent. The defendants were dissatisfied with the judgment of the court; they filed on 24/2/98 six grounds of appeal, and formulated four issues for determination of the appeal.

The issues are;
(1) Whether in spite of the historical and judicial notoriety of a fact a court of first instance may make findings contrary to such facts.
(2) Whether in the circumstance where a plaintiff fails to prove the West title he is relying upon a court may resort to acts of ownership and find for him.
(3) Whether a judge who has found that the acts of ownership relied on by the defendant was not on the land in dispute can also make them the basis of his award of damages for trespass on the same land in dispute.
(4) Whether the lower court had jurisdiction to entertain this suit”.

It is partial to record that the appellants’ issues 4, 6 and 7 are founded on the additional grounds of appeal filed by the appellants.

The respondents also filed issues for determination of the appeal thus;
(1) Whether the High Court has jurisdiction to entertain the action.
(2) Whether the court is right in the application of the principles of law in KOJO II V. BONSIE 1957 1 NLR 1223; Privy Council judgment by Olisa Chukwura SAN 1 668.
(3) Whether the court is bound to act in documents and or historical books not pleaded by either party.
(4) Whether the judgment is based on the findings of fact not supported by evidence”.

In his brief filed on 6/4/2001, and adopted by the respondent on 3/7/03, the
respondent in addition to the issues formulated above raised a preliminary objection to the appellants’ issue 2, 4, and urged this court to disregard the contents of the appellants’ brief because the appellant failed to formulate issue on ground 2 of his ground of appeal; which ground the respondents urged the court to treat as abandoned and in ground 4 of the grounds of appeal, the respondent averred that the particular of the ground is hanging in the air because the ground does not flow from the said ground 4.

In his brief of argument previously referred to the respondent argued the appellants’ issue 4; as his issue one which deals with the jurisdiction of the court on land matters in rural areas over which the appellants’ submitted is within the jurisdiction of the customary court; and (11) That the High Court in Saki; which jurisdiction extends to include matters in Orelope Local Government Area; but that the said High Court has jurisdiction only on land declared an urban area; and that land in Igboho in the said local government is not declared an urban area; consequently the appellant submitted that the subject matter of the land in dispute being in the rural area is outside the jurisdiction of the High Court in Saki; and its decision on the said land is incompetent. The appellant urged this court to set aside the decision of the learned trial judge in this appeal.

The appellants cited and relied on the decision of the Supreme Court in SALATU V. SHEHU (1986) 1 NWLR (Pt.15) 198 at 211 paragraph D II (11) OYENIRAN V. EGBETOLA (1997) 5 NWLR, Pt.504. 122, and to the provision of Section 6 and 41 of the Land Use Act which in Section 6, gave jurisdiction to the customary court to adjudicate on land in rural areas, Section 41, denies jurisdiction to High Court of land in rural areas. Before proceedings were with the submissions of the appellant in his said brief of argument I want to refer to the respondents’ brief which possibly because the appellant commenced the submission in his brief with the issue NO.4, the respondent responded to the said issue 4; as issues No 1; founded on grounds 6 & 7 of the appellants amended grounds of appeal.

So certain is the appellant that the submissions in his issue as formulated by him will terminate the appeal that he opened his issues, with the last one; issue 4 of the appellants’ issue as set out in the appellants’ brief. It is right to consider together therefore, the appellants’ issue 4 in his brief with the respondents’ issue 1. It is appropriate to record that the territorial jurisdiction of a court in a state is a matter of convenience for the judiciary which delineates the territorial limit of the High Court.
Subject to this all the High Court in a state is one. In the court below; the plaintiff now respondents claim was for a declaration that the statutory right of occupancy in the tract of land described in the writ is in the chieftaincy family of Onigboho of Ighobo, (11) N50, 000 damages for trespass; and for an injunction.

The immediate cause of the claim being the trespass said to be committed by the defendant on the plaintiffs stool land, beyond the area allegedly granted by the respondent to the defendant in Jakuta. Since the suit in the court below commenced before the operation of the 1999 Constitution, since it commenced in 1992, it is the provision of the 1979 Constitution of the appellant in SALATU V. SHEHU referred to above, and SADIKU V. DALORI, (III) OYENIRAN V. EGBETOLA 1997 5 NWLR. Pt.504, and under the Provision of Section 41 of the Lands Use Act 1978; sought to exclude the jurisdiction of the High Court created under the provision of Section 236 of the 1979 Constitution from adjudicating on land in a rural area; except it exercise equivalent jurisdiction with the area court, recent decision in ADISA V. OYINLOLA, (2000) 6 S.C. (Pt.11) P.47, have ruled to the contrary.

Here is the pronouncement of the Supreme Court on the issue whether the regular high court has jurisdiction over any lead in rural area per Ayoola JSC.
“In my judgment the decision of this court in Oyeniran v. Egbetola Supra was erroneous and made per incuriam. This court should not be bound by that decision, which would create such unnecessary problem and difficulties in states where area courts and customary courts or courts of equivalent jurisdiction do not exist, and may lead some State governors to resort to designating land in all areas of the state as urban land contrary to the spirit and intention of the Act. I hold that the High Court has jurisdiction to by the proceedings and resolve the jurisdictional issue against the defendants”.

Admittedly such a decision did not exist at the time in 1992, when the court below considered the issue; the court below uncannily came to a right decision when he proceeded to exercise jurisdiction and made a proper declaration of customary right of possession of the land in dispute in favour of the respondent; in the face of exhibit P1 the survey plan tendered by the plaintiff in the court below; who are now the respondents. This court is bound by the decision of the Supreme Court in the decision of ADISA V. OYINLOLA, (2000) 6 S.C. Pt.11, upon which reason besides the reasoning in the judgment with which I agree, also I agree with the submission of the respondents, that the High Court Saki covering Oorelope local government area had the jurisdiction to rule as it did on the relief sought by the plaintiffs in the court below; for a declaratory right of customary possession over the area claimed by the plaintiffs now the respondent in this appeal. I therefore resolve the issue 4 of the appellant against him; and resolve issue I, in the respondents’ brief in favour of the respondent.

The appellants’ issue 1 asks whether in spite of the historical and judicial notoriety of a fact a court of first instance may make findings contrary to such facts”. This issue involves the consideration of the facts, in the matter in the court below, where each party to the proceedings adduced evidence of acts of ownership of the land in dispute; the evaluation of the facts by the learned trial judge and the conclusion of law on the facts are the issues contained in the appeal, ants issues 2 and 3.

The respondents’ issues 3, 2, and 4 are also based substantially on the issues of facts tendered at the hearing in the court below, the consideration of the principles of law established in KOJO II V. BONSIE, to indicate the person likely to succeed where conflict arises on historical facts of possession of land between claimants, the evaluation of evidence tendered are similarly contained in the respondent’ issues 2, 3 and in the appellants issues stated above. It is to me therefore right to consider the two sets of issues together in a general discussion of the evidence tendered of possession of the tract of land in dispute by the plaintiff and the defendant in the court below.
(2) The evaluation; and the weight attached by the learned trial court to each set of facts on claims to possessions by each of the party to the suit.
(3) The method of resolution of the conflict or of the concurrent claims to the same tract of land.
(4) The assessment of the facts, and the corrections or otherwise of the conclusion reached by the learned trial court on the issues before him.

Earlier in this judgment, I have slated above the description and quantum of the area of land claimed by the plaintiff in the court below and as contained in exhibit P1 tendered by the respondent who was the plaintiff in the court below. The respondent did not file any plan; and did not at the hearing deny that the area location and quantum of land is different from the area, location and quantum of the land which he denies as being in the ownership and possession of the plaintiff. The area of the disagreement of the defendant with the plaintiff is the original founder and settler on the same tract of land; and the person entitled to a customary right of possession to the said land.

The defendant now the appellant did not file a counter claim; but denies strenuously that Tondi; the hunter from whom the plaintiff derived the title of Onighobo of Igboho, the first settler on the land described by the plaintiff as stool land, was the first settler to the land; and the defendant deny that Tondi founded the land now known as Igboho. Each party gave evidence of its acts of possession on the land.

The defendant claimed the foundation of the Igboho to Alafin Egungunoju, from whom Alomo, as a chief in Jakuta derived his claim to the land, which he claimed was allotted to him by the said Alafin. Specifically on the area land in dispute, the plaintiff claimed to have granted part of stool land to the Alomo chieftaincy family; which part extends to Jakuta, near where the Baptist school is located. The defendant denied this, and sought to show that the Alomo family had a right to sell or alienate part of what the plaintiff claim as part of Igboho chieftaincy stool land.

The learned trial judge, considered the evidence of acts of possession of the land by both parties, and come to the conclusion that the testimony offered by the plaintiff by the plaintiff on acts of possession by the plaintiff was clear positive, consistent and long. The learned trial judge could nor say that the evidence of traditional history of possession offered by the defendant did measure up to the principles established in the decision of EKPO V. ITA, 1932, 11 NLR 68. The judge resolved in the event that there was conflict in the evidence of traditional history offered by both sides the court then decided to employ the principles of law emaciated in the case of KOJO II V. BONSIE an acts of recent possession to indicate the possible owner of the small tract of land in dispute between the parties.

In order to further appreciate the point sight must not be lost that the plaintiff in the court below testified and the court below admitted the testimony as true that the property surrounding the area in dispute are in the possession of the respondent. However in order to establish scrupulously the ownership of the small tract of land in dispute, the court considered evidence of recent possession and use of the land in dispute. For instance, evidence was given that in the 70’s the defendant commenced building on the site within the area in dispute, the plaintiff objected to the structure or attempted alienation of the area by the defendant. The plaintiff testified that a report was made to the police.

That report deterred the defendant from proceeding with the structure until this course of action arose almost ten years or more after the appellants’ issues 2 and 3, whether it was right to prove the title to the land by employing the rule in KOJO II V. BONSIE of evidence of recent possession where evidence of traditional history of possession has been found to be inadequate? It is true as determined in IDUNDUN V. OKUMAGBA 1976, 1 NWLR (Pt.200) at 210-211, that title to land may be established in one or two of the five ways prescribed. In this case, the two parties have tendered evidence of acts of long possession over a long period of time.

It is also an established rule of law that the onus of proof in an action for declaration of title to land, by possession that are numerous positive and exclusive is on the plaintiff. See SANUSI V. AMOYEGUN 1992, 4 NWLR (Pt.237)527 at 547. The evidence of both parties is to be weighed on an imaginary scale. See MOGAJI V. ODOFIN & ORS. 1978 4 S.C, however the issue was determined in ATANDA V. AJANI REPORTED IN (1989) 3 NWLR, (Pt. III) at 547 – E & F, whether possession without more is not only a defence to a claim for declaration where the equities are equal. What the plaintiff claimed in the court below is a declaration of right to possessory hilts on the land in dispute, under the customary right of possession. See MOGAJI V. ODOFIN 1985 7 S.C. 59 to establish the claim, the court below was entitled to require and consider that the proof of possession by the plaintiff was made to the hilt.

The rule in KOJO II V. BONSIE Supra is one of such which indicates a proof, to consider acts of recent possession of the land in dispute. In my opinion and I so rule the learned trial judge in the court below was right to consider and determine the person entitled to a declaration of customary right of possession on the land in dispute by considering the act of recent possession of both parties on the land; and prefer that of the respondent, I therefore resolve issue 2 against the appellant, in favour of the respondent. Was the court below right to order the award of damages for acts of trespass on the land in dispute; when the acts of ownership (proved by the plaintiff) was on another land; seem to me to be the substance of the issue contained in the appellants’ issue 3, the evidence tendered in the court below show; not only that me land in dispute had long been in occupation, possession and exclusive use of the plaintiff; but also that the surrounding areas to the specific area in dispute; the area including the Baptist Primary School; had continued to be in exclusive possession of the plaintiff. Ordinarily Section 46 of the Evidence Acts application would have assumed possession of the adjourning land to the plaintiffs’ land as being in the possession of the plaintiffs. See THOMAS V. HOLDER 13 WACA; IDUNDUN V. OKUMAGBA (1976) 1 NWLR Supra, (11) FASORO V. BEYOKU 1988, 2 NWLR, (Pt.76) P.263 at 271.

The court below showed in his evaluation of the evidence tendered by the defendant that the several acts of the defendant is clear evidence of entry into the land in the possession of the plaintiff. The acts of trespass on the plaintiffs’ land are established. See BANGBADE V. BALOGUN (1994) 1 NWLR 718 (PT. 323). Trespass is after all an invasion of another into the land in the possession of the plaintiff. It is incorrect for the appellant to couch his question in the issue 3, as if the area of Ian proved to be in the possession of the plaintiff is different from the area of land on which trespass is held to be proved. The tract of land in the possession of the plaintiff in the court below is the area on which trespass is found to have been committed. I find no error in the assessment and evaluation of the evidence in this matter on appeal and find correct the conclusion made by the trial judge. I resolve issue 3 also in favour of the respondent, and against the appellant. The appeal has no merit it is dismissed. I affirm in its entirety the judgment of the court below. I award against the appellant the sum of N5, 000.00 as costs in this appeal. I make no comments on the order of injunction, ordered by the court below as no ground of appeal or issue is formulated on it.

---

Other Citations: (2003)LCN/1505(CA)