M.A. Akinsuroju & Ors Vs Chief Paul O. Joshua (1991)

LawGlobal-Hub Lead Judgment Report

M. L. UWAIS, J.S.C.

In this case the appellants were the plaintiffs in a suit which they brought on the 26th day of May, 1966 in the then High Court of Western Group of Provinces, holden at Akure, against the respondents as defendants. The plaintiffs’ claims against the defendants in the suit were as follows –

“(a) Declaration of title (in perpetuity or absolutely) according to native law and custom of all that piece of land situate at Odo Aye consisting of the Villages of Epewe, Mobi. Moboro, Oluagbo and the surrounding area.

(b) 200pounds General Damages for trespass committed by the defendants on the said plaintiffs’ land.

(c) An injunction restraining the defendants their servants and or agents from further trespassing on the said plaintiffs land.”

At the hearing of the suit, the plaintiffs called the 1st plaintiff as witness as well as a surveyor who tendered a plan of the land in dispute and one other witness as a boundary man. The defendants called the 1st defendant as witness and two other witnesses. In his judgment, the learned trial Judge (D. O. Coker J., as he then was) stated as follows-

“It is a common ground that the plaintiffs are Ikales of Aye. The 1st plaintiff claims he is the Oba of Aye people with the title of Lapoki. The defendants are Ijaws and people of Igbobini and 1st defendant is the Oloja and natural ruler of the people. These facts are not in dispute. From the evidence, it is clear and also not disputed that originally the Ikales, including the Aye people were mainly farmers, while the Ijaws including the Igbobini were fishermen and canoe pullers by trade. I have no difficulty in finding that the defendants, like other Ijaws, have temporary huts along the Rivers and Streams where they fish within the land in dispute. The plaintiffs have never complained about the erection of these temporary huts nor have they challenged the right of the defendants to fish in the Rivers and Streams within the disputed land. What the plaintiffs complain of are the other activities of the defendants on the land since the 1948 cases. These activities include the granting of land to Urhobos to build houses and granting permission to some people to collect palm oil fruits from the land. The plaintiffs contend that the defendants are not entitled to do so.”

and later made the following findings of facts-

“After very careful consideration of the whole evidence, I am satisfied that the Ikale-Aye people have been using the land in dispute for very many generations past and that they were never the tenants of the defendants. I am satisfied that before 1948, the defendants never claimed ownership of any part of the land in dispute, and they lost to the plaintiffs’ people in the very first encounter of their claim of ownership of the three villages which are part of this land. I am satisfied that apart from fishing in the streams and rivers within the land, they also erected temporary fishing huts and or camps along the shores during their fishing activities. Defendants’ people never farmed or claimed ownership of the land nor did they ever place any Sobo Tenants on the land, as they have now done since the 1948 case. I am satisfied that the plaintiffs’ people have from time immemorial been carrying on their rotational or shifting farming on the land, and that they did so as owners of the land not as tenants of the defendants’ people.”

before entering judgment for the plaintiffs.

The defendants, who were aggrieved by the decision, appealed to the Court of Appeal. In its decision the Court of Appeal. (Eboh, Ikwechegh and Musdapher, JJ.C.A) inter alia observed as follows (per Ikwechegh, J.C.A) –

“But what connection have Ikale Aye people as a community with these lands which were founded by individuals of a definite family When did these lands pass into communal ownership In my understanding of the case and the evidence before the court of trial it seems that this is where the weakness in the proof of ownership lies. Damkan was said to be an Ikale Aye man, and his children Legbowuwa and Lagboju were Ikale Aye, too. They founded Epewe, Imobi and Mororo respectively – so the evidence shows. But then these lands can pass as inheritance only to the children of the individual founders, and it seems to me that any claims by a community, unless the history of transmission of the interest to a community is first pleaded and proved in evidence, cannot be maintained as in this case. The judgment appealed against has decided that the traditional history in this case has sufficed to show that right of ownership and title is in the plaintiffs/respondents and they were declared the absolute owners of the lands. I would say that it is only the children – the direct descendants of Damkan, Legbowuwa and Legboju who could be on the evidence declared true owners. In my view the Ikale Aye people of Epewe, Imobi and Mororo have not proved their rights over and ownership of these lands. And it was wrong to declare them the absolute owners.”

and concluded the judgment in the following terms –

“In my view, the appeal succeeds on this point and I allow it. The claims of Ikale Aye people as a community are not proved, I order therefore dismissal of the claims in suit AK/23/66. I award cost of N300.00 to the appellants.”