David Dawodu Lokoyi & Anor V. Emmanuel Babalola Olojo (1983)
LawGlobal-Hub Lead Judgment Report
OBASEKI, J.S.C.
The appellants were defendants in suit No. HIL/12/74 instituted by the respondents in the former High Court of Justice, Western Nigeria on the 9th day of May, 1974. In the said suit, the respondent claimed as endorsed on the writ of summons:
(1) A declaration of title to all that parcel of land situate, lying and being at Oke-Eyiyi via Inashin in Ijesha South Division which would be more particularly described in a survey plan to be filed;
(2) Injunction restraining the defendants, their servants and agents from entering the land in dispute.
On the orders of the court, pleadings were filed, exchanged and served and the issues joined came up for hearing and were set down for hearing and were set down for hearing before Adenekan Ademola, J. At the conclusion of the hearing, the learned trial judge, (Ademola, J.) delivered a well considered judgment in which he allowed the plaintiffs claim in the following terms:
“Now looking at exhibit 2 and exhibit 4 tendered by the parties in this case, one is in no doubt that the land in dispute is the same or almost shown to be the same in both plans. The evidence of 1st D.W., Mr.Gascoyne is to that effect. Both pans show that the land of the same persons, i.e. Olojo’s land and Ishotun’s land, bound the land in dispute on two sides. The northern side of both plans shows a road from Inashin village to Ishotun and also both plans show the footpath from Inashin to Iworo or Oshu.
The problem is to decide to whom the land belongs. . . What then are the decisive factors in this case We go back to the plans exhibits 2 and 4. They tell us a story. Both sides claim Sanni Opesan as a tenant. His holding and location is on both plans. He is shown as having farms at the upper and lower parts of the land in dispute. Another name common as the tenant to both sides of Odunro. His holding and location is also shown on both plans. The descendants of these tenants are Abiodun Opesan and Timothy Olatunji, the 2nd p.w. and 4th p.w. respectively. They confirm that their ancestors were tenants to the plaintiffs’ family. . . .
Turning now to the claim by the defendants of tenants on the land in dispute, it is clear if one goes by exhibit 2 that apart from the three tenants (Opesan, Odunro and Amodu) who have farms on the land in dispute, the others mentioned, i.e. Doherty, Saka Afenifere, Karimu Alaka, Eyiola Salako and Sansan Salako do not have farms on the land in dispute. Their holdings are shown on exhibit 2 to be outside the area in dispute between the parties. The defendant did not call any of the people he claims to be his tenants within the land in dispute. This is very much against him. . . .
I have come to the conclusion that Sanni Opesan, Odunro Amodu and others are tenants of the plaintiffs family and that the plaintiffs’ father had farm on the land in dispute. This finding, to my mind, tilts the balance in favour of the Plaintiffs in this case.
Plaintiff has in my view satisfied the conditions of success required in this type of case by adducing cogent evidence of tradition, by giving evidence of positive and numerous acts of ownership pointing unequivocally to the facts that he was exercising dominion over the land in dispute or by giving evidence of both’ . . . per Coker, J.S.C. in Olujebu of Ijebu v. Oso The Eleda of Eda (1972) 5 SC page 143 at p. 151.
The plaintiff in this case has not only given cogent evidence of tradition but has shown me that his family exercises dominion over the land in dispute. Plaintiff would therefore be entitled to judgment for a declaration of title to the land depicted in exhibit 4 Plan No. EBS 17 and an injunction against the defendants their servants and agents.”
The defendants were not satisfied with the judgment. They felt aggrieved and so appealed against it to the Federal Court of Appeal. Eleven rounds of appeal were filed. At the hearing before the Federal Court of Appeal, four of the grounds was abandoned and only seven grounds were argued. At the conclusion of the hearing, the Federal Court of Appeal (Aseme, Akanbi, and Uche Omo, JJ.C.A.) gave a unanimous decision dismissing the appeal. Uche Omo, J.C.A. in delivering his judgment (concurred in by Aseme and Akanbi JJ.C.A.) dealt with all the issues raised and in particular the issue as to the identity of the land and as to whether there was one mound or 26 mounds along the western boundary and observed and commented:
“It is true as submitted in support of ground 11 (a) that the court below did not consider where (sic) there was one mound or twenty six mounds on the western boundary of the land in dispute.
Whereas the respondent pleaded that there was one mound, the appellants alleged twenty-six mounds, situated on both sides of a footpath. The evidence of the parties was supported by their respective surveyors. In the face of this divergence, the court preferred to rely on a boundary feature which was agreed to by both sides, i.e. the footpath which is said to go along the entire western boundary. This, the court was perfectly entitled to do; and its failure to decide whether there was one mound or twenty six also on that boundary becomes relatively immaterial and certainly not fatal to its penultimate decision on the case.” Ground 10 which was argued last reads as follows:
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