Isaac Ayoola V. Jinadu Adebayo & Ors (1969)

LawGlobal-Hub Lead Judgment Report

Coker, J.S.C.

The respondents were the plaintiffs in an action instituted by them against the first appellant, then defendant, in the Egba Grade A Customary Court where they claimed as follows:-

“1. Declaration of title to all that piece or parcel of farmland situate lying and being at Ita-Oshin Aro Abeokuta on the Lagos Road. 2. £50 damages against the defendant for alleged act of trespass on the land”.

No provisions for filing pleadings are made for customary courts and so the parties gave evidence at the trial in support of their cases. The plaintiffs claimed to be using for and on behalf of the Aro Oguntade family and in the course of the trial produced in evidence a plan of the land claimed by them.

PAGE| 2 The plan was admitted as exhibit ‘A’ and shows an area of some 67 acres. According to the plaintiffs and their witnesses the land in dispute was first settled by one Oguntade Aro a hunter of some fame and the present plain-tiffs who claimed to have descended from him, contended that the first defendant as well as all his people was put on the land by their permission.

It was also part of the plaintiffs’ case that the defendant’s ancestor, one Ojo Aroba, was given refuge by their own ancestors when he fled from his original home-stead in Oke Ibarapa after having committed a criminal offence there.

It appears that some other defendants were joined in the action but the records are confused as to the precise nature of the application for their joinder. It is sufficient to point out that on the evidence given by and on their behalf they claimed to have always been in possession of the portions of the land in dispute which they occupied in their own right and not by or with the permission of the plaintiffs or their ancestors.

A point seemed to have been canvassed at the hearing relating to the procedure that obtained when a hunter like the ancestor of the plaintiffs first discovers farmland; it was said, and the learned trial judge seemed to have accepted it as such, that such a hunter could not become the true owner of the land so discovered by him unless and until he reported his discovery to the District Head or Chief of the area where he came from, and obtained in return for his discovery an express grant of the land from such district head or chief.

After hearing the parties, the President of the Customary Court dismissed the claims of the plaintiffs observing thus:-  “It seems to me after reading the above that the hunter who discovered a forest land is obliged to report to the chief of his township for a for-mal grant of the land by the chief to the hunter to conform with the rules of `FIFUN’ or ‘TITO’.  

There is no evidence before me that Oguntade Aro reported his find to the Olubara the acknowledged head of Orile Ibara from where he came and there was no evidence of formal grant to Aro by the Olubara to satisfy the rules of ‘TITO’ and `FIFUN……  I dare say that the mere fact that ARO first settled on unidentified portion of the land now known as ARO did not make him an absolute owner of all the land in ARO.

The present site of the mental hospital is not part of the land known as ARO even though the hospital is popularly known as ARO mental hospital. I hold that the evidence of the Olubara is indispensable to prove the plaintiffs’ title that his predecessors granted the land to Oguntade ARO after the said Oguntade had discovered the forest and reported the discovery. That in my opinion would have helped the plaintiffs…..  In exhibit ‘A’ tendered by the plaintiffs the area in dispute was edged green approximately 66.97 acres but the evidence before the court was that the whole area edged red is in dispute.

This includes the land acquired many years ago by the Railway Corporation…. I find there-fore that the description of the land as to the area and extent does not agree with the plan submitted in evidence…..

PAGE| 3  I have carefully considered the evidence before me and I hold that the plaintiffs have failed to prove their case to warrant the granting of declaration of title in their favour…..  

As regards the second leg of the claim, I find as a fact from the evidence before me that the defendants are in possession of the farmland in dispute at the material time and that the plaintiffs were not in pos-session…. the onus of proof of possession is on the plaintiffs. I find that the plaintiffs have failed to discharge the onus, the claim for trespass is accordingly dismissed”.