Kayode Okuoja V Obafunmilayo Ishola (1982) LLJR-SC

Kayode Okuoja V Obafunmilayo Ishola (1982)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

This suit began in the Ikeja Judicial Division of the Lagos High Court as No. IK/27/68. In it the plaintiff (respondent in this court) sued the defendant (appellant, herein) for the following reliefs:-

“1 (a) declaration of title to the vast area of land at Ajaguro near Isawo known as Oko Cole in Ikorodu District

(b) 500 pounds damages for trespass committed by the defendant (sic) on the said land

(c) An injunction restraining the defendant his servants and or agents from committing further acts of trespass on the land. Annual rental value of the land cannot be assessed”

Pleadings were ordered, filed and duly exchanged. The plaintiff (hereinafter known as respondent) first filed a plan dated 30.8.69 with their statement of claim. This plan was first admitted in evidence through respondent himself as ID.1 and later admitted through the appellant as Exhibit D.1 At an advanced stage of the proceedings, in fact, after 3 witnesses for the respondent had given evidence, the respondents put in a plan through their surveyor which plan No.72/76 was admitted in evidence and marked Exhibit PN. Because of the importance which the various plans have assumed in determining the issues in contention in this suit, it is pertinent to mention that there is a third plan attached to a conveyance marked in the proceedings as Exhibit PC. I shall return to this conveyance in due course. Suffice it to say that the land in the plan attached to that conveyance which measures 179.613 acres (72.7 hectares) is verged yellow in Exhibit PN. It is not in dispute in this suit.

The case of the respondents on the pleadings was essentially that their predecessor-in-title (Adedeji Ishola) bought parcels of land including the land in dispute from one Ajayi Oluguno (otherwise known as Odukuno). The relevant portions of the amended statement of claim are paragraphs 3- 16 portions of which I crave your indulgence to set down:

“3. At the trial the plaintiff will trace the history of the land in dispute from time immemorial till the time the plaintiff’s father became seized of the land.

4. That plaintiff will show that his father late Adedeji Ishola was his predecessor-in-title and the effective owner of the land in dispute.
5. That land in dispute is part of Ajaguro Nla Village or Cole’s farm and the portion trespassed thereon is edged green in the attached survey plan.
6. The late Adedeji Ishola (known as Adedeji Ishola Cole) bought the land in dispute from one Ajayi Oluguno (otherwise known as Odukuno).
7. At the trial the plaintiff will rely on the following documents to establish his title:-

(i) A deed of conveyance dated 21/5/21 and registered as no. 67 at page 227 in volume 150 of the Registry of Deeds in the Lagos Land Registry

(ii) Purchase receipt for the sum of 70 (Seventy pounds) out of an agreed sum of 140 (One Hundred and Forty pounds) dated 9th January, 1922 on the second parcel of land

(iii) Purchase receipt of 55 (Fiftyfive pounds) out of the balance of 70 (Seventy pounds) dated 8th February 1922

(iv) Purchase receipt for the sum of 10 (Ten pounds) making a total of 135 (One Hundred and Thirty Five pounds) paid to the vendor out of the agreed sum of 140 (One hundred and forty pounds) for the second parcel of land

(v) Purchase receipt for the sum of 5 (Five pounds) being the due balance paid to the children of the vendor dated 1st December, 1925.

8. The late Adedeji Ishola was put in effective possession of the purchased land (including the land in dispute) at the time of sale and he so remained until his death in 1950.
9. The late Adedeji Ishola demarcated the boundary of the whole area of the land he bought in a whole parcel and planted “peregun” trees right round the boundary of the whole parcel of land including the land in dispute.
10. The late Adedeji Ishola planted cocoa and kola trees on the land in dispute.
11. The late Adedeji Ishola performed various acts of ownership on the land till his death. He put tenants on the land who he led to show that many of these tenants are still on the disputed land after spending almost twenty years as tenants and still pay their rent.
12. …….
13. …….
14. ………
15. The title of the late Adedeji Ishola was confirmed in the following court proceedings:-

(i) In Suit No.64/1927 between Sani v. Adedeji Ishola in the Supreme Court of Nigeria

(ii) In Suit No.163/57 between Asani Kaka & Ors v. Mrs. Alice Ishola in the Ikorodu Native Court.

(iii) Suit No. IKD/600/74 in Commissioner of Police v. Vincent Ishola & 7 Others, Ikorodu Magisterial District.

16. Evidence will be led to show that the area in dispute is approximately 195 acres and shown in the plan edged green in the attached plan……..”

The purchase receipts referred to in paragraphs 7(i), (ii), (iii) and (iv) above were tendered in evidence by the respondents and marked as Exhibits PD – PD3. I may mention that neither in the pleadings nor in oral evidence were they challenged by the appellants. Nevertheless, I shall return to consider the probative value, if any, of those receipts as it is certainly one of the issues on which the appeal will turn. The suits referred to in paragraphs 15(i), (ii) and (iii) of the amended statement of claim were received in evidence as Exhibits PF, PG. and PK.

On the other hand, the case of the appellants is that their family are the owners from time immemorial of the land in dispute. This appears from the relevant portions of the statement of defence which I set down hereunder, particularly paragraph 8 thereof:

“2. The defendant deny paragraphs 3, 4, 5, 6, 7, 8, 10 and 11 of the statement of claim……..

5. With further reference to paragraph 5 of the statement of claim, the defendants aver that the piece of land alleged to have been purchased by the late Adedeji Ishola Cole, differs substantially in SIZE, BOUNDARIES, AREA and physical identity from the land in dispute.
6. The defendant aver that the plan filed and attached to the plaintiff’s statement of claim is grossly inaccurate as it has shown an enormously larger area of land than the late ADEDEJI ISHOLA COLE ever claimed in his lifetime.
7. The defendants aver that the judgment in Suit Nos. (a) 64/1927 (b) N.C. 163/57 (c) IK/5A/58 relied upon by the plaintiff in paragraph 8 of their statement of claim have no bearing to the land in dispute and cannot be pleaded as ESTOPPEL per rem judicatam. There were no site plans filed in the suit and the subject matter are absolutely irrelevant to this suit.
8. The defendant aver that their family are the original owners under native law and custom to all the large piece or parcel of land edged GREEN (sic) survey plan filed by the plaintiffs situate lying and being at Ajaguro village near Ikorodu in the Lagos State on which they have been farming from one generation to another and have from time immemorial been exercising all acts of ownership thereon without any interruption or disturbance.
9. The plaintiffs have on several occasions broken close and sought to go beyond their boundaries which the defendants vehemently and successfully resisted.”

At the close of the case of the parties, the learned trial judge, Oladipo Williams, J., dismissed the respondent’s case on the ground that they had failed to make out a case for declaration of title. He refused to grant the reliefs of damages and perpetual injunction. As the appeal presently before this court turns on facts, I shall in the course of this judgment have to deal with Oladipo Williams, J’s., findings on the main issues in contention between the parties. His dissatisfaction with the case of the respondent can perhaps be exemplified by one of the passages of his judgment: There he said,

“As I said above quite apart from the question of title to the land in dispute which I have held is defective because Exhibits PD – PD3 cannot be relied upon, it is still possible for the plaintiff to establish by evidence various acts of ownership or user which can oust the title of the defendant. On a careful consideration of the evidence relating to the disputes as mentioned above, I find that they could not have been related in any way to the land in dispute and if it could be said that they did in fact which I do not accept the defendants had shown that every attempt of plaintiff’s father to add to the land conveyed in Exhibit PC had been resisted in a manner which showed clearly that the defendants had never since 1925 recognised the plaintiff’s claim to the land in dispute”

The respondents, dissatisfied with this judgment, appealed to the Federal Court of Appeal which in a majority judgment (Coker and Uthman Mohammed, JJ.C.A; Nnaemeka-Agu, J.C.A., dissenting) allowed the appeal but granted the respondent a declaration of title and ancillary reliefs only in respect of the area verged green in Exhibit PN i.e. the area in dispute.

The appellant has appealed to this court against that majority judgment.The grounds of appeal were previously filed with the notice of appeal. With leave of this court, appellants further filed 11 additional grounds of appeal. As it was agreed that the appeal turned on issues of facts ( a position which I have already mentioned above), and moreso as learned counsel for the appellant argued all the grounds of appeal together, I do not deem it necessary to set down those grounds of appeal. I may refer to any of them as it becomes necessary in the course of this judgment. The main issues which arise in the appeal and which are covered by the grounds of appeal appear to me to be as follows:-

(1) The probative value, if any, to be attached to Exhibits PD-PD3 i.e. the receipts for purchase of land.

(2) whether the acts of user and possession alleged by the respondents are enough to give them and their family title to the land in dispute.

(3) The relative positions of plaintiff/respondent’s and defendant/appellant’s lands as they appear in the plans attached to Exhibit PC (deed of conveyance) and the plans Exhibits D1 and PN. The effect of these plans on the case of the respondents.

(4) Whether the various suits pleaded and relied on by the respondents relate to the land in dispute.

(5) Whether, having regard to the evidence available at the trial and the findings of fact of the learned trial Judge, the learned Justices of the Federal Court of Appeal ought to have interferred with those findings, and related to this,

(6) Whether the plaintiff/respondent led enough credible evidence to entitle them to succeed in a case which was for declaration of title.

Before discussing these issues it may be convenient here to deal briefly with the submissions of learned counsel for both parties.

In his submission, learned counsel for the appellant, Mr. Lardner, SAN., contended that the findings of fact made by the learned trial Judge were amply supported by the evidence and that there was no justification for the interferance by the majority Justices of the Federal Court of Appeal.The main plank of his submission, however, related to the differences discernible in the relative position of the land of the respondents not in dispute (i.e land conveyed by Exhibit PC) and the land of the Oshin people (appellants) in the plan attached to Exhibit PC and the plan Exhibit PN. In Exhibit PN a chunk of land verged green (the land in dispute) he said now separated the land conveyed in Exhibit PC from the land of Oshin people, whereas in the plan attached to Exhibit PC (as well as in Exhibit D1) the land of Oshin people was contiguous to the land conveyed by Exhibit PC. That chunk of land, he said, could only be the land of the appellants. If the respondents bought they must have bought it from the Oshin people. There is no evidence, he further argued, that such a sale took place, nor is there any evidence that Odukuno from whom the respondent’s predecessor purchased his land was a member of the Oshin family. This, in my view, was clearly a most powerful and persuasive submission. Chief (Mrs.) Solanke, SAN., learned counsel for the respondents gallantly replied by contending that the fact that the land of Oshin people is on the plan attached to Exhibit PC did not mean that it was immediately contiguous to the land conveyed by Exhibit PC. She referred to the recitation in Exhibit PC and to one of the boundaries of the land conveyed therein which was described as land of Oshin 4250 feet. By this she meant that the distance between the land of Oshin and the land conveyed by Exhibit PC was 4250 feet! Such a distance would presumably leave space to take in the area verged green! Ingenious and gallant as this response no doubt is, I do reject it for reasons which I shall later give in this judgment. The reference to 4250 feet is to my mind the extent of the land of Oshin which lies to the south of the land conveyed by Exhibit PC and not the distance between those 2 lands.

I shall now return to the issues I earlier identified as the main matters for determination in this appeal.

1. Receipts PD – PD3

What probative value could be attached to these receipts Do they relate to the land in dispute It is beyond dispute that the predecessor of the respondents (Adedeji Ishola) bought the land conveyed by Exhibit PC from Ajayi Odukuno. It was the case of the respondents that Exhibits PD-PD3 covered the purchase of other lands including the land in dispute. The learned trial Judge dismissed these receipts as worthless claiming that the makers were illiterate and that they may even have been prepared by Adedeji Ishola himself. The receipts Exhibits PD-PD3 can be impugned for many reasons, as I shall presently show, but I do agree with Nnaemeka- Agu, J.C.A., that the learned trial Judge was wrong in impugning them on the ground of illiteracy of the makers. I would repeat that neither in evidence nor in their pleadings did the appellants challenge them.The problem with Exhibits PD-PD3 is that no instrument accompanied them to indicate what land they covered. No plan was attached either. Worse still, the description of the land said to be purchased as stated in those receipts was vague and imprecise. It may be revealing to set the contents down. Exhibit PD reads as follows”

“piece of land at Ajaguro in the Ikorodu District measuring from a Peregun tree behind the village at Ajaguro right on to Jakoro extending to Ade’s boundary and coming down through a Jaganyin Orange Tree at Ajaguro to the Swamp.”

Exhibit PD3, which was issued by Odukuno’s children, read:

“a piece of farm land sold to him by our late father Ajayi Oluguna now deceased for a total of 140 pounds at Ajaguro in the Ikorodu District duly marked out at the time by our late father with five peregun trees in the presence of witnesses.”

These descriptions are not unlike those in the case of Alhaji A. W. Elias v. Alhaji Suleiman & Ors (1973) 12 S.C. 113 at 131 which this court rejected. There, a portion of the disputed land which one of the defendants claimed to have bought was described thus:

“Farmland situated at Owodo port facing Ogun river bridge on the left and on the right side of the Lagos-Ikorodu Motor Road to the second culvert concrete bridge extremely surrounded by Roro river the farmland known and called Oko Agbon and Okon Idunkun.”

The defendants in that case produced no deeds of conveyance to support their claims of possession in respect of portions of the land in dispute. Like in the case in hand, they relied mainly on purchase receipts.

Most of the features described in Exhibits PD and PD3 cannot be found in Exhibit PN or Exhibit D1, all plans made by the respondents. Ajayi Odukuno never gave evidence of what he sold as per Exhibits PD-PD2, nor did his children who actually completed the transaction represented by Exhibit PD 3 appear to clarify the confused situation. The inescapable conclusion, in my view, is that though Exhibits PD-PD3 clearly show purchase of more land after 1921 by Adedeji Ishola from Ajayi Odukuno, they cannot in any way relate that purchase to the land in dispute. They may have related to the portion marked “C” in Exhibit PN, not in dispute, or even to the land north of the area conveyed by Exhibit PC, but that certainly has no effect on the resolution of the question of ownership of the land in dispute. The surveyor of the respondents, 4th P.W. Cutbent Oluremi Dawodu sought in evidence to relate the receipts Exhibits PD-PD3 to the land in dispute but I think that effort was puerile in the face of the contents of those receipts set down above. In his testimony he said:

“I was able to survey and give the units of the whole area apart from that edged yellow from the purchase receipts Exhibit PD-PD3. I also used the purchase receipts Exhibit PD-PD3. in ascertaining the boundary between the area in dispute and the land belonging to the Ijokoro people in the eastern side within the area in dispute. I found what is known as Igboti and Oro grave. It is on the South Eastern Side. Near the Igboti there is excavation of rock laterite.”

It seems therefore that the respondent failed in the attempt to link Exhibits PD-PD3 to the land in dispute as Exhibit PC was unarguably linked with the land shown on the plan attached to it. It will be remembered that the respondents’ case rested on purchase – in 1921 per Exhibit PC, and thereafter the land in dispute and other lands as per Exhibits PD- PD3. It does seem to me therefore that the learned trial Judge was right when in relation to these receipts he concluded as follows:

“I do not agree with learned counsel for the plaintiff when he said that Exhibit PD3 covers the area edged pink nor can I agree that it covered any area of land in the Plan Exhibit PN. PD – PD3 are not, in my view, documents which can be relied upon in proving plaintiffs father’s title to the land in dispute”

In the face of the shortcomings of Exhibits PD-PD3, it is my view that the Federal Court of Appeal erred in ascribing to them the weight which it gave them. In his judgment Coker, J.C.A., said of them –

“The learned trial Judge was of the opinion, and again without justification that the plaintiff employed evidence of user of the land conveyed in Exhibit PC to claim title to the land in dispute. It was not part of the defence that the receipts Exhibits PD-PD3 were not issued by the makers or that the authors did not understand their contents. The defendant conceded that Adedeji Cole was owner of more land than that conveyed to him under Exhibit PC. In his evidence at the hearing, defendant said –

“Before the 1927 case, Cole the father of the plaintiff bought another piece of land from Odukuno. Although he denied that it was part of the land in dispute”.

Uthman Mohammed, J.C.A., in his own judgment was more decidedly satisfied with the receipts. The learned Justice of Appeal said of them –

“I have referred to the receipts of purchase of the said land exhibits PD, PD1 and PD3 and I have found the description of the land in the wordings of the said receipts to have agreed with the plan of the land claimed by the plaintiff in Exhibit PN.”

With these views, I am in total disagreement. In fact, with all respect, it is in the minority judgment of Nnaemeka-Agu, J.C.A., that those receipts are put in their proper place based on the reasons already adduced above. After thoroughly reviewing the case of the respondents in respect of these receipts, particularly their failure to prove the boundaries of the land allegedly bought through Exhibits PD-PD3, the learned Justice concluded:

“I must therefore hold that although Exhibits PD-PD3 show that the appellant’s predecessor-in-title bought some land after the conveyance, Exhibit PC (which land might well have been parcel ‘C’ in Exhibit PN) he has failed to prove the precise boundaries of that land or that the land includes the land in dispute.”

2. The plans Exhibit PN, D1 and that attached to Exhibit PC

As had earlier been mentioned in this judgment, the relationship of the lands of the parties as shown in these plans formed a vital plank in the case of the appellant before this court. For ease of reference, I would repeat the point that a plan was attached to the conveyance Exhibit PC (the conveyance by which the respondent’s predecessor-in-title bought from Ajayi Odukuno the parcel of land not in dispute, marked B in Exhibit PN). Exhibit D1 is a plan which the respondent filed with their statement of claim. It was first tendered by them as ‘Identification 1′ and later taken in evidence through the appellants as Exhibit D1. Exhibit PN is plan filed by the respondent in the court of trial at a time when the trial had reached an advanced stage. In that plan the land in dispute is verged green marked “A”, the land conveyed in Exhibit PC verged yellow and marked “B” and part of the rest of the land marked “C”.

The relevance of these plans to the issues between the parties in this appeal lies in the fact that in the plan attached to Exhibit PC the land directly south of that land, covering the entire south and contiguous to it is the land of the OSHIN people (appellant’s people). This was also the position in Exhibit D1. The boundaries of the land being sold to Adedeji Ishola as per Exhibit PC were described as follows:-

“Land described and measuring as follows –

On the North 5305 feet by a swamp

On the East 1980 feet by a swamp

On the South 4,265 feet by land of Oshin

On the West 3807 feet by land of Ijokoro people and the same is more particularly delineated on the plan at the feet of these presents” (Underlining mine).

(Lest it be said that the plan referred to was a mere drawing, it may be pertinent to mention that it was drawn to scale by a licensed surveyor, Issac T-Wey.) But when the plan Exhibit PN was made, the LAND of Oshin people was now pushed to the south west of the land conveyed in Exhibit PC and was no more contiguous to it. Instead, between them now lay the land verged green – the land in dispute. It is this land in dispute (and other lands not in dispute) that the predecessor of the respondent purportedly bought with Exhibits PD-PD3.

From the relative position of the land of Oshin people to the land of the respondent (in Exhibit PC) not in dispute, it follows without any serious question that this chunk of land verged green in Exhibit PN and which is the land in dispute must be part of the land of Oshin people. If Adedeji Ishola, predecessor-in-title to the respondent bought that land he could only have bought legitimately from the Oshin people – appellant. But that evidence was that he bought from Odukuno. There was no evidence that Odukuno was a member of the appellant’s family. In fact, the evidence was rather that he was a member of the Oluwo Akojuagbabele family which does not appear to have any connection with the appellant. It is surprising therefore that the majority Justices of the Federal Court of Appeal could have frowned on the finding of the learned trial Judge on this part of the plaintiff’s case. The learned trial Judge on this part of the case said:-

“Reading the plan in Exhibit PV (PC) with the plan Exhibit PN, it is apparent that what is now the land in dispute must be part of the land described as the land of OSHIN in the plan attached to Exhibit PC. Without mincing words, it follows to my mind that for the plaintiff to set up a claim to any part of the land south of the land conveyed in Exhibit PC and contiguous with, it plaintiff must show that Oshin family or a person authorised by that family had at one time or other conveyed the said land to his father through whom he is now claiming.”

As I said earlier in this judgment, I find the submission of learned counsel to the appellant on this point unanswerable. In my view this part of the defence case demolished the other parts of the respondents’ case – such as user, acts of possession, tenants, court cases between the parties – for as I shall show later the question is whether those activities could have taken place in the land in dispute. So decisive is the effect of the plan attached to Exhibit PC that I agree with the observation of Nnaemeka-Agu, J.C.A., that that single point was sufficient to dispose of the whole suit. Yet the learned majority Justices of the Court of Appeal found fault with the finding of the learned trial Judge set down above. Coker, J.C.A., thought such a conclusion was unjustified either on the evidence or the pleading. He also said that that was not the case of defendants. He seemed to have relied on paragraph 8 of the statement of defence in which the appellants identified the area verged green in Exhibit PN as the land in dispute and claimed ownership of it – apparently not disputing the rest of the land in the area verged red in Exhibit PN. But, with due respect, this does not make any difference to the point under consideration. The appellants are not laying claim to the area marked “C” or “B” in Exhibit PN and though, as he says, in both plans Exhibits PN and D1, the northern part of the Oshin land is south of the land covered by Exhibit PC, this land of the appellants is more directly contiguous to the land conveyed in Exhibit PC. But the land in dispute now lies between both lands. That is the point in issue. I think there is every justification for the finding of the learned trial Judge and for the conclusions of Nnaemeka -Agu, J.C.A., that

“Using the position of the north as shown in both plans as a guide, it is pretty clear that intervening chunk of land part of which is the land in dispute is part of the land conceded to be “Land of Oshin” in Exhibit PC. The respondent, as defendant, pleaded inter alia, estoppel in paragraph 11 of his statement of defence. Having conceded that intervening land to be the land of the people of the respondent, the appellant would be estopped from now saying, as his case now postulates, either that the “Land of Oshin” is further south as shown by his new plan Exhibit PN or that it was the land of Odukuno from whom he purports to have purchased the same.”

3. Act of User. In paragraphs 8, 9, 10 and 11 of the amended statement of claim set down above, the respondents had pleaded that the late Adedeji Ishola was put in effective possession of the purchased land (including the land in dispute). He was said to have exercised various acts of possession on the land in dispute. In the Court of Appeal the respondents (appellants in that court) had complained that they established enough acts of ownership, numerous and positive to have entitled them to succeed. These acts of possession on which respondents relied are those referred to above in paragraphs 8, 9, 10 and 11 of the amended statement of claim. In addition is the claim that the respondent’s predecessor-in-title lived and farmed on the land in dispute; and had a quarry on it. Although Exhibits PD-PD3 which is the root of the title of the respondent’s predecessor to the land in dispute have been held to be unreliable, if sufficient and positive acts of ownership extending over a long period had been established the respondents could have been entitled to the inference that they were exclusive owners of the land in dispute (See Ntoe Ekpo Eta Ekpo v. Chief Eta Eta Ita II NLR 68).

But the respondents failed to prove acts of ownership and possession in the land in dispute. They therefore failed to establish paragraphs 8, 9, 10 and 11 of the amended statement of claim referred to above. Indeed, several factors negatived such exercise of ownership or possession. As I have already held in this judgment, what was held out as the land in dispute was clearly part of “Land of Oshin people”. The various acts of possession claimed by the respondents, such as putting tenants on the land in dispute, could have been in relation to some other land if in fact tenants were actually put on any land. But even without shutting out the respondent from what they claim as the land in dispute, they failed to establish acts of ownership or possession on it. For instance, it was claimed that Adedeji Ishola lived on the land in dispute. In Exhibit PN, Ishola Village is only shown in the area verged yellow and marked “B” which is the land conveyed by Exhibit PC. There is not one single house in the area of that plan verged green and marked “A” which is the land in dispute. There is a claim that the respondent’s predecessor-in-title planted kola and cocoa farms in the land in dispute. It is in the area marked “C” in Exhibit PN that there are substantial cocoa, kola and ewe-ram farms. In the land in dispute there is a very negligible kola farm on the south eastern flank. In paragraph 9 of the amended statement of claim particularly, Adedeji Ishola was said to have put peregun trees right round the whole land he bought and these trees were said to be right round the boundary till date. There are no peregun trees right round the land in dispute not to mention the area verged red in Exhibit PN which the respondent claimed. There was only 5 peregun trees along the south eastern portion of the land in dispute. The only other acts of possession related to the Igboti (Oro) Shrine and laterite quarrying. In paragraph 18 of the amended statement of claim, the respondent admitted that it was the appellant’s predecessors, agents, servants, tenants and workers who had been quarrying rock laterite on the land in dispute although this was cited as acts of trespass. As regards the Igboti (Oro) shrine, the respondent showed it in Exhibit PN describing it therein as Oro Jomu (Jomu and Oshin being the appellants’ family). Besides there was evidence to the effect that the appellants’ family still worshipped the Oro Shrine and owned it up to the time of trial. The 3rd defendant (i.e. appellants’ witness) had testified thus:

“In Isawo we have also an Igboti. The name of the “Oro” we worship in the Igboti Isawo “Aingbo Odo”

and the 4th defendant witness Sokunbi Okuoja who claimed to be head of the family of Jomu (appellants) confirmed that there is an Igboti on the land in dispute. He produced Exhibits D2-D4 (photographs of the Shrine) and maintained that the appellant still worshipped the oro every year. That the oro shrine was owned and worshipped by the appellant’s family cannot be in any doubt. It is significant in this respect that in Exhibit D1 which is the plan made on 30th August, 1969, by the respondent and attached to their statement of claim, no “Oro” is shown.

4. Previous Suits

The respondent had in paragraph 15 of the amended statement of claim (set down above) pleaded three judgments of the Supreme Court of Nigeria, Ikorodu Native Court, and Ikorodu Magisterial District respectively. They were received in evidence as Exhibits PF, PK and PG. They were intended to show that the respondent’s predecessor-in-title had resisted alleged acts of trespass on the land in dispute by appellants. I do not propose to examine them in any detail as I am of the view that on the evidence before the learned trial Judge they could not have related to the land in dispute. The appellant said as much in paragraph 7 of the statement of defence (also set down above). No site plans were tendered in those suits. It was in evidence (see Exhibit PH) that there were two Ajaguros – Ajaguro II and Ajaguro I. In Exhibit PH the appellant’s father was described as the Bale of Ajaguro I. Ajaguro II was the land which Odukuno conveyed to the respondent’s father as per the conveyance Exhibit PC. It seems from the evidence that the dispute between the parties was concerned with Ajaguro II and perhaps other lands not the land in dispute. When Buraimoh Tojokun was caught passing through the respondent’s father’s land it was Ajaguro II that was involved. A close study of the plans Exhibits PN, D1 and that plan attached to Exhibit PC, shows that there are no swamps in the area marked A (i.e the land in dispute) in Exhibit PN. There are swamps mainly in Exhibit PC and rather sparsely in the area marked “C” in Exhibit PN. The learned trial Judge was therefore right in finding, as he did, that the acts of trespass complained of in Exhibits PH and PJ were all in connection with Ajaguro II. The learned Justices of the Court of Appeal (particularly the judgment of Coker, J.C.A.) rejected these findings not because there was no evidence to support them or that they were perverse. It was more a case of drawing their own conclusions from the evidence available. In his minority judgment, Nnaemeka- Agu, J.C.A., carried out an exhaustive analysis of the three judgments relied on by the respondents – Exhibits PF, PK and PG – and came out in support of the findings of the learned trial Judge to which I have made reference above. These conclusions appear to me fully justified on the evidence available. Apart from Exhibit PG which was declared a nullity and so cannot be used to establish the title of the respondent, one passage in the minority judgment (dealing with Exhibit PK) seems to me to underline the difficulties besetting those judgments – that they relate to lands other than the land in dispute and (in respect of Exhibit PF) that there were no plans annexed to them to indicate what portions of land were involved in the disputes or to connect them with portion “A” in Exhibit PN. The learned Justice of Appeal had said of Exhibit PK:

“The Native Court summarising the evidence on behalf of the appellant (as defendant in Exhibit PK) said inter alia:

“Defendant (i.e Mrs. Alice Ishola ) said that Ishola Cole, as the owner of the farmland in dispute, Ajaguro No. 2, summoned a meeting of people in the suburbs on 26th March, 1935 to discuss on a charge of trespass and theft being committed by the Ajaguro No. 1 tenants on his farmland. Buraimo Tojuokun, the Bale of Ajaguro No.1 was present in the meeting. The evidence was supported by a copy of the report of the meeting tendered as Exhibit “K”. Ishola Cole also made trespassers to admit the charge of trespass by signing agreement papers which were each tendered as Exhibit “H”, “I”, and “J” to prove the fact.”

This makes it clear that there were Ajaguro Nos. 1 and 2; that what Ishola bought was No. 2; that the trespass in 1954 was by tenants in No. 1 That it was Ajaguro No.2 which was in issue is confirmed by the evidence of the defendant’s attorney Abayomi Alabi Ishola under cross-examination. He said:

“I am 37 years old. Ishola Cole is my father. Ishola Cole bought the Ajaguro No.II farm about 37 years ago……..”

For as the witness was giving evidence in April 1958, the above was an obvious reference to the 1921 purchase by Exhibit PC (i.e. 37 years from 1921)”.

It is clear that the majority Justices of the Federal Court of Appeal rejected the findings of fact of the learned trial Judge on all the issues to which reference has been made in the course of this judgment. In his brief of argument, learned counsel for the appellants complained that “against the clear and sound findings of facts by the trial court the majority judgment of the Federal Court of Appeal by some strange reasoning reversed the said findings of facts…..” The principles on which a Court of Appeal can interfere have been examined in so many authorities of this court, and the law is so settled, that it has almost become trite. For a recent examination of these principles See Chief victor Woluchem & Ors v. Chief Simon Gudi & ors. (1981) 5 S.C. 291 at 295 and 326. The basis of it all is that the trial court has the advantage of having seen the witnesses, an advantage which the Court of Appeal does not have limited as it is to the printed evidence. The presumption is that the findings of fact by the trial Judge are right and the duty to displace such a presumption falls on the party challenging them. Kojo v. Bonsie (1953) 14 WACA 242; Akesse v. Ababio (1935) 2 WACA 264; Kisiedu & Ors v. Dompreh & Ors (1935) 2 WACA 268. In a criminal case R.v. Ologen 2 WACA 333 it was the view of the West African Court of Appeal that

“it is not the function of a Court of Appeal to retry a case on the notes of evidence and to set aside the verdict, if it does not correspond with the conclusions at which the members of the court would have arrived on these notes.”

That is not of course to say that the Court of Appeal has no function. If the learned trial Judge has drawn the wrong inferences from the primary facts found, then the Court of Appeal is in as good a position as the court of first instance, see Brantuo v. Poko (1938) 4 WACA 210; Mann v. Mann 97 CLR 433 at 440. The majority Justices of the Court of Appeal rightly referred to Lawal v Dawodu & Anor. (1972) 1 All NLR (Part 2) 270, at 286 and 287 but regrettably failed to apply the principles contained therein to the case in hand. Applying the principles in these authorities, I cannot find any inference drawn by the learned trial Judge which is not justified, nor do I think that any of his findings of fact was erroneous or perverse. There was abundant evidence to support those findings and I do agree that they ought to stand. The Federal Court of Appeal erred in reversing them.

It remains merely to add that from the totality of the evidence which was before the learned trial Judge the respondent (plaintiff) could not but have failed. The total effect of my examination of the main issues in this appeal is that in none of them could the respondents have succeeded. They woefully failed to discharge the onus which rested on them, the suit being one for declaration of title. Part of the duty they had to discharge to succeed was proving the boundaries of the land they claim was owned by their predecessor-in-title (See Baruwa v. Ogunshola (1938) 4 WACA 159; Udofia v. Afia 6 WACA 216). Exhibits PD-PD3 which was the root of title to the land bought by Ishola Cole after 1921 (which allegedly included the land in dispute) did not indicate with any certainty the boundaries of the land in respect of which they were made. Contrary to the amended statement of claim to the effect that Ishola Cole planted peregun trees right round the land in dispute, in Exhibit PN the area marked A and verged green had only 5 peregun trees on the south eastern corner!

For all the reasons stated above, this appeal must succeed. The appeal is allowed. The majority judgment of the Federal Court of Appeal dated 25th June, 1980 including the order for costs is hereby set aside. The judgment of the Lagos High Court, Ikeja Judicial Division, per Oladipo Williams, J., dated 28th February, 1977 is restored and that shall be the judgment of that court. I would award costs to the appellants which I assess at N300 in the High Court, N506 in the Federal Court of Appeal and N300 in this court.

Other Citation: (1982) LCN/2168(SC)