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

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

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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.”

Then the plaintiffs appealed to this court against the decision of the Court of Appeal. -They stated, in their brief of argument, only one question for determination, which reads thus – “Whether having regard to the representative nature of the action before the court as borne out by the writ of summons as well as the Statements of Claim and Defence and also having regard to the relevance of the 1948 cases to the subject matter of this appeal, the learned Justices of appeal were right to refuse to confirm a declaration of title to the land in dispute in favour of the appellants.”

The defendants conceded, in their own brief, that the question for determination, as formulated by the plaintiffs accurately reflected the grounds of appeal filed by the plaintiffs, but the defendants contended that the question raised was irrelevant.

In his argument, Mr. Akin Sikuade, learned Senior Advocate for the plaintiffs, canvassed that no issue was joined, in the pleadings of the parties, on the representative nature of the action by the plaintiffs. The heading of the writ of summons and the Statement of Claim, he said, clearly indicated that the plaintiffs sued in a representative capacity. He referred in particular to paragraphs 4, 6, 7, 8 and 12 of the Statement of Claim. Learned Senior Advocate referred also to the Statement of Defence and in particular paragraphs 2, to and 11 thereof and submitted that it is clear from the references that the contest in the case was between two different ethnic groups – the people of Ikale Aye and the people of Igbobini who are Ijaws. He therefore, contended that the Court of Appeal did not give consideration to the representative nature and character of the action before them and hence their failure to confirm the plaintiffs as the absolute owners of the land in dispute under native law and custom.

In reply, Chief Williams, learned Senior Advocate for the defendants, argued that the Court of Appeal did not determine the appeal before it on the issue of the identity of the parties. He said that there was in fact no dispute that the plaintiffs and the defendants sued and were being sued in representative capacities. He submitted that what the Court of Appeal decided was that the evidence led by the plaintiffs did not prove that the land in dispute belonged to community as alleged by the plaintiffs but individuals. He cited the decision in Oragbade v. Onitiju (1962) 1 SCNLR 70; (1962) N.S.C.C. 16 at p.20 lines 20-28, which he said is on all fours with the present case.

Now it is true, as submitted by learned Senior Advocate for the plaintiffs, that the plaintiffs brought the action in the High Court in a representative capacity. This is quite clear from the headings of the writ of summons as well as the Statement of Claim. However, there is inherent inconsistency in the averments in the plaintiffs Statement of Claim. While paragraphs 3,4, 5, 6, 7 and 12 thereof aver as follows-

“3. The plaintiffs bring this action on behalf of themselves and the Ikale-Aye people.

  1. The defendants are being sued on behalf of themselves and the people of Igbobini.
  2. The plaintiffs are the owners from time immemorial of all the piece of parcel of land situate and being in Okitipupa District and which said land is more particularly described and delineated on Plan No. Al 102/1966 filed with this statement of claim.
  3. The villages of Mobi, Epewe, Moboro and Oluagbo are within the said land in dispute.
  4. The plaintiffs’ ancestors had exercised rights of ownership on the land and the plaintiffs in succession have always exercised rights of ownership thereon.”

“12. These villages have ever since been administered from Aye and have since remained in the possession of the Ikale-Aye people.”

paragraphs 8, 9, to, 11 and 13 allege thus –

“8. The said villages were founded by ancestors of the Ikale- Aye people (the plaintiffs) many years ago thus:

  1. Mobi was founded by Daniken an Ikale-Aye man who gave the name Mobi to the place because he planted Kolanut trees (Obi) in the place
  2. Epewe was founded by Lagbonuwa the son of Daniken and be gave the name Epewa to the place because mushrooms were there in great quantity.
  3. Moboro was founded by Jagbojuan IkaIe-Aye man who later extended his farm to the surrounding areas of Oluagbo and Lagerele.”

“13. Among plaintiffs’ ancestors who had exercised rights of ownership on the area are Ojaramuwa, Jiboro, Adotiwa, Luwoye-Fafi, Aduwo-Dego Ijimakinwa and Ogidimo.”

In his testimony in proof of the aforementioned averments the 1st plaintiff, Oba Martins Olowu Akinsuroju, the Lapoki of Ode Aye, who testified as 2nd P.W. stated as follows –

“I and other plaintiffs on (sic) Ikales of Aye. I know the land subject matter of this Suit It comprises of Mobi, Epare, Moboro and Oluagbo and Lagereke (which) are villages within the land in dispute. On the North, we have boundary with Ondo people by the Owun Stream, the Irele people occupy the South, there is also the Oluwa Stream, which has boundary with it. The Ikales established these villages which I have earlier mentioned. Daniken founded Mobi. He was an Ikale. It was called Mobi because the land was suitable for Kolanut and he planted Kolanut trees there. Lagbowuwa, son of Daniken founded Epewa, because a plant called Epe, a kind of Mushroom grew on the land luxuriously. One Yaboju founded Moboro. Yagboju was also son of Daniken. Yagboju entered his farm to the forest land which were called Olugabo and Lagereke (sic). My ancestors who had used the land were Daniken, Kiborode, Ojaramuwa, Adojiwa, Luwoye-Laji, Aduwo-Dego, Ijimakinwa and Are Ogidimo. The Lapoki is the overlord of all these villages. From the time of Daniken the Lapokis have always been the overlord of these Villages and they are members of his family.” (Italics mine).

What the foregoing evidence established was that the land in dispute was founded by the ancestors of the 1st plaintiff and succession to the land had been by the members of the family of the founders of the land. Apart from the general statement by the 2nd P.W., that the Ikale’s established the villages that constitute the land in dispute, there is nothing in his evidence to show that the land belongs to the community as a whole. On the contrary the evidence proved that only the members of the family or direct descendants of Daniken can and do inherit the land in dispute.

Neither the testimony of 2nd P.W. nor that of the two other witnesses called by the plaintiffs establish that the people of Epewe, Imobi and Mororo own the villages or had any right of ownership over the village. In my view, therefore, the Court of Appeal was right in holding that the community represented by the plaintiffs, to wit Ikale Aye people, had not proved their claims.

As a consequential order, the Court of Appeal dismissed the claims made by the Ikale Aye people. The question that arises from this is: should the claim have been dismissed or should an order of non-suit have been entered against the plaintiffs The issue came to the notice of this court after counsel for the parties had concluded their addresses and the case was adjourned for judgment which was to be delivered on the 21st day of June, 1991. Learned counsels for the parties were therefore invited to further address the court on the 5th day of April, 1991. Only Mr. Akin Sikuade, learned Senior Advocate, for the appellants appeared and addressed the Court. There was no explanation as to why Chief Williams, learned Senior Advocate, for the respondents failed to honour the invitation.

Mr. Akin Sikuade, urged that an order of non-suit, in place of the order of dismissal, should be entered against the plaintiffs and cited the following cases in support- Olagbemiro v. Ajagungbade III, (1990) 3 NWLR (Pt. 136) 37 at p.42 and A.C.B. Ltd., v. Chief. S. Yesufu, (1989) 1-2 S.C. 49 at p.52. As already shown, the plaintiffs’ case was, ‘as per their pleadings in the Statement of Claim, inherently contradictory. In one breath they pleaded that the case was brought on behalf of the people of Ikale Aye and that the land in dispute was a communal land. In

another breath they pleaded that the land in dispute was founded by Daniken and his descendants and succession to the land had been through their descendants. It is manifest that in no way could the plaintiff prove their case since the pleadings had been inconsistent. If the plaintiffs case were to be dismissed both the people of Ikale Aye and the descendants of Daniken would be deprived of exercising any right on the land. But there is a previous judgment of the West African Court of Appeal- Suit No. WACA 3685 which was tendered in the suit as exhibit B – which established that the land in dispute or pan of it was a communal land. The learned trial judge, Coker, J. (as he then was) found as follows-

“The judgment Exh. B (including Exh. C) is therefore material evidence in favour of the plaintiffs and against the defendants. Its effect therefore should not be ignored in considering the case of the parties. The three claims in the 1948 cases themselves presupposed that the Aye Ikale people were to possession of the three villages in 1948 when the defendants claimed ownership of them. The court held that defendants’ people were not the owners, but that the plaintiffs’ people were on the land in 1948 as owners, not as tenants of the defendants as they contended in the 1948 cases and also in the present suit”

Now by the provisions of Order 30 rule 3 of the High Court Rules, Cap.45 of the Laws of Ondo State, 1978 – “The court may in any suit, without the consent of the parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”

and by the decision of this court in Olagbemiro’s case (supra) at p.62 an order of non-suit is to be made in the following circumstances –

(a) Where the plaintiff has not failed in toto or entirely to prove his case; and

(b) Where the defendant is not in any event entitled to the court judgment and

(c) Where no wrong or injustice to the defendant would be caused by such order.

I am Satisfied that these conditions have been met in the present case. Accordingly, the appeal has succeeded in part. The decision of the Court of Appeal is confirmed but the order of dismissal is hereby varied by the substitution therefore of the order of non-suit against the plaintiffs/appellants.

There is no order as to costs. The parties shall bear their costs.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Uwais, J.S.C. and I find myself of the same opinion as himself on all the issues for determination in the appeal. I agree with him that the order of dismissal of plaintiffs’ claim made by the Court of Appeal be varied to one of non-suit of plaintiffs and I so order.

To that extent, the appeal has succeeded. To the extent seeking a declaration of title it has failed.

The parties are each to bear their costs.

Other Citation: (1991) LCN/2464(SC)

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