O.K.O. Mogaji & Ors V. Cadbury Nigeria Ltd. & Ors. (1985)

LawGlobal-Hub Lead Judgment Report

A. O. OBASEKI, J.S.C. 

This appeal is against the decision of the Court of Appeal delivered on the 13th day of June, 1983, delivered in an appeal from the judgment of the High Court, Ikeja (Cole, J.) delivered in suits IK/233/65, IK/171/68 and IK/172/68 consolidated for the purposes of hearing.

In suit No. IK/233/65 commenced on the 17th November, 1965, the plaintiffs claimed:

“1. 100.00 pounds damages for trespass, in that, sometimes in the month of October 1965, the defendant and their servants and agents wrongfully entered upon the plaintiffs’ land along Ikeja/Isheri Road, Ikeja, cleared the land and erected sheds thereon. The said land is in possession of the plaintiffs. The defendants continued to trespass on the said land in spite of repeated warnings by the plaintiffs;

2. An injunction to restrain the defendants, their servants and/or agents from committing further acts of trespass on the said land.”

This suit had a chequered career in that after the trial in the High Court, it went on appeal to the Supreme Court and on the 4th day of February, 1972, the Supreme Court, after setting aside the judgment of the Court, remitted it to the High Court, Ikeja for trial de novo. By that time, suits IK/171/68 and IK/I72/68 touching the land in dispute had been filed. Then on the 11th day of June, 1973, on the application of the plaintiffs in the three suits, the court made an order consolidating the suits for hearing and determination. Before then, leave to make necessary amendments to the writs of summons and pleadings had been granted.

In their amended writ of summons, the plaintiffs in suit No.IK/171/68 and their amended statement of claim filed on the 21st day of April, 1975, claimed against the defendants jointly and severally:

1. Declaration of title under native law and custom to all that parcel of land situate at Ikeja and being at Agidingbi Village, Ikeja;
2. N200.00 being damages for trespass committed on the plaintiffs’ said land;
3. An injunction restraining the defendants, their servants, and/or agents from committing further acts of trespass on the said land;
4. Mesne profits at the rate of N15,600.00 per acre, from October, 1965, until defendants give up possession of the land in dispute.

By their amended writ of summons, the plaintiffs in Suit No. IK/172/68 claimed against the defendants jointly:

1.100.00 pounds damages for trespass to the said land;

2. An injunction restraining the defendants, their servants and agents from committing further acts of trespass on the said land;
3. Mesne profits at the rate of N1,200.00 per acre per annum from October 1965, until possession is given.”

After several amendments to the pleadings filed by the parties, the matter eventually came to trial on the 2nd day of February, 1977, before E. Akinola Cole, J. Before Cole, J. the plans showing the land in dispute were tendered by the P.W.1 Mr. Isaac Body Lawson, a licensed surveyor. They are Exhibit A, Exhibit B and Exhibit C. He was a very valuable witness as he had been involved in a survey of land in the vicinity of the area in dispute since 1963. Exhibit B is a plan of the survey of land he carried out for the Mogaji family in 1963. It bears the date 23rd March, 1963. But the plan produced from the survey was upside down. So in 1966, he had to prepare another plan for the Mogaji family. By this time, Cadbury Nigeria Limited had come on the scene. Exhibit A is the plan. It shows the relative positions of the land claimed by the plaintiffs Mogaji family and the land claimed and occupied by Cadbury Nigeria Limited. It bears the date 27th September, 1967. The portion verged Red is the area claimed by Mogaji family and the portion verged Yellow on Exhibit A is the area claimed by Cadbury Nigeria Limited.

The land surveyed in 1963 is the same land as the area verged Red on Exhibit A. The land is close to Agidingbi village. Exhibit C is a composite plan. It bears the date 2nd of December, 1974. The area verged Yellow on Exhibit A is the same land verged Yellow on Exhibit C. Exhibit C shows the relative position of the land claimed by Saka family. The land of Mogaji family shown in Exhibit A is not shown on Exhibit C but it is immediately south of the land claimed by Saka family and adjoining it on the south end. The land claimed by Saka family is verged Red on Exhibit C. The mention of the plan of the lands in dispute at this stage is to create a true picture of the land in dispute in our minds from the onset.

After hearing evidence from witness called by the appellants and witnesses called by the respondents, counsel for the parties addressed the learned trial judge at length before he adjourned to consider and write his judgment. In a very well considered judgment covering 76 pages of typed script, the learned trial judge dismissed, in their entirety, all the claims of all the plaintiffs.

The learned trial judge, dealing with the claim for declaration of title, first considered the question of estoppel raised and said:

“I am satisfied that there is an averment that the 1st defendant acquired title to land in dispute from Chief Ashamu, and they would rely on the conveyance granted to Chief Ashamu relevant to the issue in controversy between the parties as settled on the pleadings . ……………………

Mr. Ajayi, learned counsel for the plaintiffs has submitted that the title of Ashamu, which was sought to be put in issue in this case had once been defeated by the plaintiffs in a previous suit IK/236/65 and there is no basis for the submission that estoppel per rem judicatam can only be used as weapon of defence and not of offence. It can be used both as a weapon of defence and offence cites Spencer Bower & Turner on the Doctrine of Res Judicata 2nd Edition page 9 paragraph 9 which reads:

“……………………….

………………………..”

In Suit IK/236/65 the parties were Mogaji family against E.O. Ashamu. The cause of action was “a declaration of title as absolute owners under native law and custom to all that piece or parcel of land situate, lying and being at Ikeja/Isheri Road, Ikeja, and particularly described in a plan to be filed latter.”

The judgment of the Court by Adeoba, J. reads:

“The plaintiffs are hereby granted a declaration of title under native law and custom to the land in dispute coloured Red in the plan marked Exhibit L- plan No. SEW/W.461.” The plan of land in dispute in IK/236/65 is Exhibit J drawn by Mr. Body Lawson, a licensed surveyor, and it is also Exhibit O it is difficult for me to say that the area of land contained in plan Exhibit L is the same as the area of land contained in Exhibit J in Suit IK/236/65 which is also Exhibit O in these proceedings.

According to the evidence of the surveyor who testified for the plaintiffs in IK/236/65, the land in dispute in that case is on the right when going from Ikeja to Isheri. The land in dispute in the present case is on the left when going from Ikeja to Isheri. Surely, the cause of action in that case is not same as the one in this case.

………………………..

There is nothing in the judgment in Suit IK/236/65 to show that the title of Ashamu by virtue of the two conveyances was defeated in that suit. As a matter of fact, the court did not award to the plaintiffs any portion of the land conveyed in Exhibits D23 or D24. There is no plan before this court to show that the land in dispute in that case forms portion of land in either the conveyance

Exhibits D23 or 024. There is no composite plan showing that the land in dispute in that case falls on land conveyed by Exhibits D23 or D24.

In my own judgment, the submission of learned counsel for the plaintiffs that the title of Ashamu in the conveyance tendered in evidence in this case has been defeated, is without foundation and I am unable to accept it………….

In a claim for declaration of title to land, the plaintiff must rely on the strength of his own case and not on the weakness of his opponent’s case and where a plaintiff claims a declaration of ownership based upon long possession, the onus is on him to prove the nature of that possession in such a way that the inference that he is exclusive owner may be drawn – Thomas v. Holder 12 WACA p. 78. I have found as a fact that Aina Adeokun, through whom the plaintiffs claim, was not the original owner of the land in dispute.

Even if it is admitted that the plaintiffs, and their ancestor, Gbadamosi Mogaji before them have been farming on the land in dispute since 1925, that, in my view, is not sufficient to oust the title of Ashade family on the land. Occupation or user of land for a long time does not entitle a party to ownership of the land. See Chief Tijani Jegede v. Bakare Gbajumo (1974) 10 SC.183 at 187. I am not satisfied that Mogaji family have discharged the onus on them to entitle them to a declaration of title to the land in dispute……….

Again, the making of a declaratory order is within the discretion of the learned trial judge and his discretion should not be too readily exercised. In a claim for declaration of title to land, if the defendant is able to adduce evidence, oral or documentary, which had the effect of discrediting the plaintiff’s evidence, such declaration should be refused.

See Ogundairo (Bale of Ijako Orile) v. Okanlawon (1963) 1 All N.L.R. p. 350 at 361.

lbeneweka v. Egbuna (1964) 1WLR 219

Taiwo v. Ogunsanya (1967) N.M.L.R. p. 378

I am satisfied on the evidence that the defendants have adduced evidence, both oral and documentary, which has the effect of discrediting the plaintiffs’ evidence, that the land in dispute originally belonged to Aina Adeokun, and that being so, I hold the view that the claim of the plaintiffs, the Mogaji family, for a declaration of title must fail and it is hereby dismissed.”

The learned trial judge then proceeded to consider the claim for damages for trespass and said, inter alia:

“The plaintiffs gave evidence that they and their ancestors before them have been in possession of the farm land in dispute since the sale under customary law by Dada Okin to Gbadamosi Mogaji in 1925. That evidence of possession is not disputed. Trespass is a tort against possession and a person who is in exclusive possession of land can maintain an action in trespass against anyone except the true owner or anyone claiming through the true owner.”

After quoting the dictum of Fatai- Williams, JSC. (as he then was) in the case of Pius Amankor v. Obiefuna (1974) 1 All NLR. p. 119, the learned trial judge continued:

“The law is that where two persons are claiming concurrently to be in possession of land in dispute, the person with title is in possession and the other person a trespasser – Jones v. Chapman (1847) 2 Ex 803.

In Goddy Umeobi v. Chief Otukoya (1978) 4 SC. p. 33 Aniagolu, JSC. delivering the judgment of the Court said at page 55:

“The principle of law enunciated by Maule J. in Jones v. Chapman (1847) 2 Ex 803 and approved by Lord Selborne in Lewis v. Talford (1876) 1 App Cass 414 at 426 remains the law as between two persons in disputed possession. Proof of ownership is prima facie proof of possession, the presumption being that the person having title to the land is in possession. As has been shown in Jones v. Chapman (supra) the legal effect of entry by a person entitled is not in any way affected by the fact that another who without title, was previously in possession persists in remaining upon the land concurrently with the true owner.

Said Maule, J. at page 821 ibid:

“As soon as a person is entitled to possession and enters in assertion of that possession………the law immediately vests the actual possession in the person who has so entered.”

In my judgment, the plaintiffs Mogaji family have not been able to prove that they have a better title to land in dispute than the defendants. Their claim for damages for trespass must also fail and it is hereby dismissed.

Since the claim for damages for trespass has failed the claim for an order of perpetual injunction must also fail and it is hereby dismissed. The plaintiffs can only succeed in their claim for mesne profits if they had succeeded in their claim for a declaration of title to the land in dispute. The claim for mesne profits is also dismissed.

In summary, the claim of the plaintiffs in Suit IK/233/65 for100.00 pounds or N200.00 damages for trespass and injunction are dismissed.

The claims of the plaintiffs in suit IK/171/68 are also dismissed.

The learned trial judge then went on to give detailed consideration to the claims in Suit IK/172/65 and said:

” the Saka family are claiming the land in dispute as originally belonging to the family of Dada Okin (deceased) and that some years ago Bale Saka became customary tenant to Dada Okin family and was put in possession of the land. Bale Saka died intestate many years ago leaving the plaintiffs as his surviving children who succeeded him on the land under Yoruba native law and custom and remained in continuous and undisturbed possession……….

It is apparent that the Saka family are alleging that they purchased the land in dispute in Suit IK/172/68 from the family of Dada akin. It is abundantly clear from the evidence led in these cases that Dada akin died in 1925 without issue and that Dada Sogunro succeeded to the estate of Dada akin………..

Property is acquired under customary law either by settlement, by inheritance by grant or by sale. There is no evidence whatsoever of how Dada Ikin himself became owner of the land which he gave out to his tenants……….

I hold the view that there was no valid sale under customary law of (the) land claimed by the Saka family by Sogunro to Saka family in 1962. I do not believe the evidence of the plaintiffs, the Saka family, and their witnesses Saka Adamo that their father Saka was a customary tenant of Dada Okin. Even if it is admitted which is not, that there was a valid sale under customary law of the land of proving that the family of Dada akin were the original owners of the land in dispute.

I am not satisfied that the plaintiffs have discharged that onus.

Where the claim is for damages for trespass and injunction against further trespass, title is put in issue and the plaintiffs, the Saka family, must prove either that they are the owners of the land in dispute or that they had had, prior to the trespass complained of, exclusive possession of the said land. Kponuglo v. Kodadja (1931) 2 WACA 24,”

The learned trial judge then proceeded to cite the dictum of Henley Coussey, J. A. in Archibong v. Ita 14 WACA p.520 and said

“I am not satisfied that the plaintiffs, the Saka family have discharged the onus on them of proving acts of ownership extending over a sufficient length of time numerous and positive enough to warrant an inference that they are exclusive owners of the land in dispute……………..

The plaintiffs must prove that their title to (the) land in dispute is better than that of the defendants. In my view, the plaintiffs have failed to discharge this onus and their action for trespass against the defendants must fail.

I have found as a fact that Agidingbi Village is part of Ogba land which originally belonged to Ashade family of Ogba Village.

It has been adjudged by the courts in the various litigations between Ashade family and Dada akin, that the latter had no title to land at Alawusa Village a place which is, according to the evidence of A.T.G. Mogaji, only half a mile away from Agidingbi village.

I have also found as a fact that the Ashade family are the original owners of a vast area of land known as Ogba land which includes Ogba village, Alausa village, Abule George, Abule Fagba, Peter Davies farm, Randle’s farm and Agidingbi village (see composite plan Exhibit D8)

There is evidence on record that Dada akin lived and died at Alawusa village. There is no evidence that Dada akin ever laid claim to any land at Agidingbi village against Ashade family during his life-time.

In order to be able to maintain an action in trespass against the defendants, the Saka family must show that they have a better title to (the) land in dispute than the defendants. in my view, they have not been able to do this and their claim for damages fm trespass against the defendants must fail and it is hereby dismissed.

The claim for perpetual injunction automatically fails and it is hereby dismissed.”

This judgment was delivered on the 27th day of March, 1981. The plaintiffs were quite naturally not satisfied with the judgement in all the three consolidated suits. They then filed a notice of appeal against the judgment to the Court of Appeal on the 17th day of June, 1981. Six grounds of appeal involving questions of law, mixed law and fact and fact alone were set out in the notice of appeal. With the leave of court, 15 additional grounds of appeal were added to make to make a total of 21 grounds.

Grounds 6, 6 and 11

Grounds 20 and 18

Grounds 9 and 10

Grounds 2, 7, 8 and 13

Grounds 12 and 14

Grounds 15, 21 and 16

Grounds 17 and 19

were all argued. The arguments of counsel took four days – 3rd, 4th, 5th and 6th May, 1983. All the grounds but 30n record appear to have been argued. The Court of Appeal on the 13th day of June, 1983, delivered a well considered judgment dismissing the appeal. Ademola, J.CA. delivering his judgment concurred in by Nnaemeka-Agu, JCA. and Kutigi, JCA. reads, inter alia:

“Of prime importance in this appeal is the findings and conclusion on the issue of origin of title of the appellants. The learned judge found that the original title pleaded as being in Adeokun was not proved. The reasons given by him for saying so in respect of both sets of appellants are in my view, correct. Both appellants did not call any evidence to support the averment on the pleadings; the evidence of members of Aina Adeokun family or the Sogunro family who are said to be descendants from Aina Adeokun should have been called. The learned judge was right in saying that the original ownership of Aina Adeokun must first be established before one can consider the various acts of ownership allegedly done on the land by Dada Okin and those who succeeded him………….Another reason for the failure of the appellants on this issue is the contradiction in the evidence of the appellants and their witnesses………..I only need to say that such being the case, the application of the principle of law in Onubogun v. The State (supra) about the unreliability of a story because of fundamental and serious contradictions becomes relevant. I endorse the application of the principle of that case to the situation here .

Mr. Ajayi has urged thatthe learned judge did not apply the test laid down in Kojo v. Bonsie (supra) in the appraisal of the traditional evidence Let me say straightaway that though the learned judge mentioned the case of Kojo v. Bonsie (supra): in my view, its relevance here is doubtful…………… Kojo v. Bonsie is, with great respect to the learned judge, irrelevant and need not be applied at all to the evidence of tradition given here…………Chief Williams submission that two credible and conflicting stories of tradition must exist (side by side) before the evaluation of such conflicting evidence by events of present fact is the true meaning of the principle laid down in Kojo v. Bonsie and not the submission of Mr. Ajayi that contradictions that exist within one side as well must be tested by events of present fact. My view is that Mr. Ajayi’s submission runs counter to the principle of law in Onubogun v. The Sate (supra) From the failure of the appellants to prove that Aina Adeokun was the original owner, it follows that the finding that Kasumu Aleshinloye was not a customary tenant of the land in dispute is right. This has been attacked by appellant’s counsel. I think that the finding is a logical sequel to a major conclusion that the averment in the pleading about Aina Adeokun has not been proved………….Mr. Ajayi learned counsel for the appellants has contended that the appellants ought to succeed by virtue of their possession of the land in dispute and their exercise of the right of ownership on the land in the case of the 1st set of appellants since 1925 in respect of the second set of appellant since 1949. They should succeed on the principle of law laid down in Ekpo v. Ita 11 NLR. p. 68 and D. O. Idundun v. Daniel Okumagba (1976) 9/10 SC. p. 227 and 249. It is settled law that long possession and enjoyment of a piece of land cannot ripen into ownership against the interest of the true owner.

……………. Thomas v. Holder 12 WACA p. 78 at p. 80………….The point is also well put by the Supreme Court in the case of Da Costa v. Ikomi (1968) 1 All NLR. p. 394 at 398 and 399.

“Possession may under section 145 of the Evidence Act give a presumption of ownership but it does not do more and cannot stand when another proves a good title”

It is my view that the submission made on behalf of the appellants that their long possession of the land should entitle them to a declaration to be made in their favour is highly misconceived. The respondents, in my view, have been able to show that their claim to the land in dispute is traceable to Ashade family who have over the years been declared owners of the land in and around the land in dispute in a series of judgments pleaded and tendered in the course of the proceedings in the court below.”

On the invocation by the learned judge of section 45 of the Evidence Act in favour of respondents’ claim of Ashade’s original ownership to Agidingbi village including the land in dispute, the learned justice said:

“The criticism against this finding is that some of the lands proximate to the land in dispute have not been shown to be in possession and enjoyment of the Ashade family………..

I find learned appellants’ counsel’s criticism unjustified. The learned judge was right in the conclusion that the Ashade family own the land in dispute on the strenght of the various judgments against Dada akin from whom the appellants derive title to the land in dispute.”

On the issue of admissibility of Exhibits 5, 20, 23, 24 and 25, learned justice said:

” Therefore under section 96(c) of the Evidence Act, Exhibits 5 and 20 became admissible as secondary evidence of the original that was lost and there has been a failure to get it after a search has been made for it

The other objection on admissibility is to the documents of title of Chief Ashamu. It is about Exhibits 23, 24 and 25 that were admitted in the proceedings as not being pleaded.

Upon it being shown that during the course of the argument that part of the pleading did say the respondents would rely on (the) title deeds from Ashade family by way of purchase in suit IK/171/68 68 in paragraph 12of the amended statement of defence; I am of the view that the fact of sale evidenced by deeds of conveyance was pleaded. Appellants did not ask for particulars of such deed of conveyance as they would have done under Order 16 rule 6(1) High Court Civil Procedure Rules 1972. The Exhibits 23, 24 and 25 went in by consent of the appellants’ counsel during trial. They cannot be rendered inadmissible. What is more, learned counsel for the appellants cross-examined Chief Ashamu on those Exhibits 23 and 24; they become, on the authority of Olukade v. Alade (1976) 1 All NLR. p.67 at p.75, admissible in evidence.”

On the issue of Estoppel, the learned Justice said:

“The issue here is whether the plan used in suit IK/236/65 and on which judgment was entered for the appellants is the same as the plan of the land in dispute here. The appellants did not prove this in the court below and has not done so here. Therefore, there could not be any question of issue estoppel raised by suit 1K/236/65 that would bar respondents’ title here. The net result is that the appeal fails on all the grounds it has been argued.”

The appellants were still not satisfied. They therefore appealed against the decision of the Court of Appeal to this Court seeking as relief:

“That the judgments of the High Court and of the Federal Court of Appeal be set aside and judgment entered in favour of the plaintiffs in the consolidated suits.”

The appellants filed 9 gounds of appeal and two additional grounds of appeal. Learned counsel for the appellants formulated 6 main issues and two subsidiary issues for determination in this appeal.

They are:

“1. Who was in possession of the land in dispute between 1874 and 1925

2. Of the plaintiffs’ predecessors-in-title and those of the defendants, which, on a balance of probabilities was more likely to have been the true owner having regard to:

(i) the unchallenged evidence by several witnesses that the plaintiffs’ predecessors exercised open acts of ownership over not only the land in dispute but over immediately adjoining lands and Agidingbi village.

(ii) the admission by the defendants’ predecessors-in-title that the plaintiffs’ predecessors-in-title placed a customary tenant on the land in dispute about 90 years before the cause of action, that customary tenant being the ancestor of the plaintiff.

3. Is a plaintiff who pleads and proves acts of ownership, positive and numerous under the principle of Ekpo v. Ita 11 NLR. 68 also bound, in order to succeed on issue of title also to plead and prove how he came by original ownership of the land
4. (i) Whether there was any real inconsistency in the evidence of some witnesses for the plaintiffs;

(ii) whether any inconsistency between the evidence of witness for a party on matters of traditional evidence is fatal to the case of that party;

Subsidiary Issue

Does the rule in Kojo v. Bonsie apply where the conflict in the traditional evidence is between witnesses of one party.

5. Did the defendants prove a better title than the plaintiff
6. Whether the decision of the Ikeja High Court in the case of suit No. 1K/233/65 – O. K. O. Mogaji and Ors. v. Chief E. O. Ashamu operates by way of estoppel against the defendants in this case.”

The appellants in their brief raised one minor issue. It is “as to the propriety of the High Court and the Court of Appeal finding that Dada akin sold the land in dispute not as head of the Aina Adeokun family, but in his personal capacity.” These six main issues together with one subsidiary issue and one minor issue can be rolled up into one main issue which is “Whether the plaintiffs discharged the onus of proof or attained the standard of proof required to entitle them to be declared owners of the land in dispute under native law and custom.”

I may observe that the Mogaji family in their statement of claim as one of the reliefs ‘a declaration of title to the land in dispute. This is in suit No. IK/171/ 68. It is also observed that the two surviving Saka’s children or the Saka family in their statement of claim raised the issue of title to the land in dispute n suit IK/172/68. Basic to the success of the appellants’ therefore is the successful resolution of this issue in their favour.

Before dealing with the issues, it is necessary to recall that a preliminary objection was taken by learned counsel for the respondents to two questions dealt with in the appellants’ brief at pages 54 to 56 thereof. These questions are

“(a) whether the decision of the Ikeja High Court in suit No. IK/236/65 O. K. O. Mogaji & Ors. v. Chief E. O. Ashamu operates by way of estoppel against the defendants (respondents) in this case

And

(b) whether the courts below were correct in holding that the sale of the land in dispute to Mogaji family in 1924 was or was not a sale on behalf of the Adeokun family.”

The grounds of objection were:

(i) that each of the question raises issues of mixed law and fact

(ii) the questions were not raised in the grounds of appeal

(iii) the question raised under (b) was never raised in the Court of Appeal

(iv) The question raised under (a) as argued before the Court of Appeal did not cover the extensive points now sought to be canvassed.”

Learned counsel for the appellants readily conceded that the questions were not raised in the grounds of appeal filed. We also examined the grounds of appeal meticulously to see whether the questions arose before coming to the decision that the questions are not open to the appellants for argument before this Court.

The unavailability of question (a) for consideration, in my view, was a fatal blow to the appellants’ appeal. Also fatal was the bar on the argument of question (b).

Learned counsel for the respondents submitted and I agree with him that there is a limit to fresh points which can be raised before the Supreme Court being the Court of last resort or highest appeal court in Nigeria, when it is sitting in exercise of its exclusive appellate jurisdiction to hear appeals from the Court of Appeal. The Supreme Court does not sit in judgment directly over the decisions of the High Court and the decisions of the High Court are relevant only in so far as those decisions are relevant to the exercise of its appellate jurisdiction over decisions of the Court of Appeal.

The dictum of Lord Hudson in United Marketing Co. v. Kara (1963) 1 WLR 523 at p. 524 that:

“Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the judges in the court below.”

is particularly apposite. It is only in very exceptional circumstances that an issue dropped in an intermediate court of appeal can be revived on appeal to the court of last resort. This was echoed by Lord Blanesborough in Ahamatter & Ors. v. Umma (1931) AC799 at 803 in the Privy Council when he said:

“It must only be under exceptional circumstances that an issue dropped in an intermediate court of appeal and for that reason not dealt with or referred to by that court, can be revived before this Board.”

It is not normally the practice of the Supreme Court to entertain a point not submitted for review to the Court of Appeal. This is because the Court of Appeal has exclusive jurisdiction to hear appeals from the Federal and State High Courts [see section 219 of the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree No.1 of 1984]. It also has exclusive jurisdiction to hear appeals from the decisions of the Sharia Court of Appeal of a State and the Customary Court of Appeal of a State.

Lord Robertson in the Privy Council case of D. Sing v. M. P. Sing (1907) 34 L.R.LA. 164 at 166 gave expression to the powerlessness of the Privy Council in such circumstances when he said:

“Their Lordships are confronted with this objection to the appeal, that the argument offered to them is on a question of fact, namely, that of waiver – which was decided adversely to the present appellants in the court of subordinate judge, and was not submitted for review to the Court in Calcutta. Accordingly, it is out of their Lordships’ power to entertain the ground of appeal, it being one of fact which has not been subject to the consideration of the court below.” (Italics mine)

Learned counsel for the respondents contended that the argument set out on pages 54 and 55 of the appellants’ brief do not criticise the concurrent findings of fact by the courts below, namely, that there was no proof of identity of the land awarded to the plaintiffs in suit No. IK/236/65 or its relation to the land in dispute in this case. Learned counsel then submitted that the appellants can only raised in this Court points which they have submitted for a review to the Court of Appeal.

With regard to question (b), learned counsel observed that the finding of the learned trial judge which reads:

“I do not believe his evidence that the four farmlands were sold by Dada Okin as head of Aina Adeokun family.”

i.e. whether the sale was made by Dada Okin as head of Aina Adeokun family was extensively canvassed in the address of the respondents. He then contended that it was not attacked in the grounds of appeal to the Court of Appeal or in the submissions of learned counsel for the appellants to that court and that the observation of the Court of Appeal (per Ademola, JCA.) was a purely passing remark and not a determination of the arguments before that Court of pages 724 lines 24 to 734 line 23. He further contended that the appellants were now seeking to argue before this Court a distinct finding of the Court of first instance that was never challenged before the Court of Appeal.

Having said that the questions were not raised in the grounds of appeal before us and that the appellants’ counsel is not entitled to raise them and or argue the questions for this Court’s determination, it is unnecessary to deal with the other grounds of objection beyond the observations I have made so far on them.

It is necessary at this stage to examine the grounds of appeal before proceeding further with the judgment. The grounds read:

“‘1. Error in Law:

The Federal Court of Appeal (in the judgment of Ademola, JCA.) erred in law in holding that the reasons given by the learned trial judge for holding that the original title of the Aina Adeokun family was not proved [were justified]. when:

(i) the plaintiffs called traditional evidence as to the ownership of the Aina Adeokun family;

(ii) the plaintiffs called evidence to the effect that Aina Adeokun family performed acts of ownership on the land by placing tenants – their ancestors – on the land about 100 years ago.

(iii) the evidence of the occupation of such ancestors was not only challenged but was confirmed by the main witness for the defendants;

(iv) ………………………………….

(v) ………………………………….

(vi) ………………………………….

(vii) ………………………………….

2. Error in Law:

The Federal Court of Appeal erred in law in using the evidence given in another case in respect of land situated in another locality to buttress a finding that the land in dispute did not belong to Aina Adeokun but to Dada Okin when:

(i) Evidence given in one action in respect of another land is not admissible to discredit the evidence in another.

(ii) It was never the case of the plaintiffs that the land in dispute was part of tile land litigated upon at Alawusa village.

3. Error in Law:

The Federal Court of Appeal erred in law when it held (in the judgment of Ademola, JCA.) as follows:

“Let me say straightaway that though the learned judge mentioned the case of Kojo v. Bonsie (supra) in my view, its relevance here is doubtful. He did not apply the test laid down there in the evaluation of the traditional evidence given.

Kojo v. Bomie is with great respect to the learned judge, irrelevant and need not be applied at all to the evidence of tradition given here. To start with, the appellants did not prove the origin of their title as being in Aina Adeokun by any evidence, which need to be in conflict with the evidence of the respondents that Ashade family owned the land before the evaluation of such conflicting evidence by the happening of recent events. The need for the application of such test has not arisen here,” when

(i) the principle enunciated by the Privy Council in Kojo v. Bonsie are applicable here if there was any cause to doubt the authenticity of the traditional evidence as to the original ownership of Aina Adeokun family.

(ii) The need to apply the principle of Kojo v. Bonsie arises where the traditional evidence given is considered doubtful for any reason whether the cause of doubt arises out of conflict in traditional evidence given by the two opposing parties.

4. Error in Law:

The Federal Court of Appeal erred in law in holding that the finding of the learned trial judge that Kasumu Aleshinloye was not a customary tenant on the land in dispute was right when

(i) Even the defendants’ witness Olalere Ashade admitted that Kasumu Aleshinloye was a customary tenant on the land thereby agreed with the evidence and case of the plaintiffs on the issue.

(ii) Once the one party admits in evidence the case of the opposite party, it is not open to a court to reject such an admission or to refuse to give full credit for the same.

5. Misdirection in Law:

The Federal Court of Appeal misdirected itself in law when it held that:

“The respondents, in my view, have been able to show that their claim to the land in dispute is traceable to the Ashade family, who have over the years been declared owners of the land in and around the land in dispute in a series of judgments pleaded and tendered in the course of the proceedings in the court below;”

when

The cases that were relied upon and produced in evidence only related to land at Alawusa village more than half a mile from the land in dispute.

6. Error in Law:

The Federal Court of Appeal erred in law in holding that the provisions of section 45 of the Evidence Act was applicable to the facts of this case and that its application does not necessarily have to do with proximity when

(i) the whole basis of the application of section 45 of the Evidence Act rests on proximity of the relevant parcel of land to the land in dispute

(ii) the only parcel of land in respect of which Ashade family has successfully litigated was at Alawusa village some half a mile away;

(iii) the defendants’ witness Olalere Ashade admitted that the series of litigation relied upon by them did not relate to the land in dispute;

(iv) the said witness also admitted that although his family knew of the occupation of the family of the plaintiffs through the years, they did not institute any proceedings against the plaintiffs family up till the date of the action.

7. Error in Law:

The Federal Court of Appeal erred in law in holding that Exhibits 5 and 6 were admissible in law under section 96(1)(c) of the Evidence Act;

when

(i) the same were photocopies-of a plan which had been tendered as evidence in previous proceedings;

(ii) they were therefore copies of a public document;

(iii) they were not admissible in evidence.

8. Error in Law:

The Federal Court of Appeal erred in law in admitting Exhibits 23, 24, and 25 in evidence; when

(i) they were not specifically pleaded;

(ii) they remain inadmissible notwithstanding that the other party cross-examined on them did not object to their admissibility

9. Error in Law:

The Federal Court of Appeal erred in law when it held in the judgment of Nnaemeka-Agu, JCA. that long possession could not ripen into title without proof of that nature of that possession

when

(i) long possession as owner is in law evidence of ownership

(ii) two of the three cases cited in support of the passage complained of relate to claims of ownership based on long possession of customary tenants against original owners.

(iii) the proposition of law cited only applied as between a customary tenant and his overlord.

10. Misdirection and Error on the Facts: Saka Family

The Court of Appeal misdirected itself on the facts and was wrong in impliedly holding the finding of the learned trial judge contained at page 516 line 8 viz:

“I do not believe the evidence of the plaintiffs the Saka family that they were customary tenants of the Dada akin or Sogunro family”

When

(i) There was uncontradicted evidence of plaintiffs’ witnesses to the effect that

(a) the land was granted to plaintiffs’ father Saka by Dada Okin.

(b) The plaintiffs’ father and the plaintiffs have been in uninterrupted possession of and farmed the land in dispute for about 100 years before the institution of the action.

(ii) There was uncontradicted evidence that like other tenants who were given farmlands in the area by Dada akin family, the plaintiffs’ family were also given land to build a house in Agidingbi village and the plaintiffs’ house at Agidingbl village was still in their possession at the time of the action;

(iii) The learned trial judge accepted the evidence of the Saka family on the issue of purchase of the land and held that, they in fact purchased from Dada Okin family in 1949 and 1962.

11. Misdirection and Error on the Facts:

The Court of Appeal fell into error in affirming the decision of the High Court that the evidence on behalf of the plaintiffs as to the original ownership of Aina Adeokun family was a maze of contradictions and had to be rejected when

(i) There was, having regard to the fact that the evidence related to the traditional family history of the plaintffs’ vendors, in effect, no real, contradiction by them, were fact that the plaintiffs’ witnesses said that they did not know Aina Adeokun (the person pleaded as the original owner of the land and the grand father of Dada Okin), although they knew that it was Dada Okin who gave the land out to customary enants through Kasumu Aleshinloye, the Chief customary tenant;

(ii) A witness who said that her great grand-father was granted land as customary tenant by Dada Okin, the eldest in the family and his younger cousin cannot, with any seriousness or cogency, be said to have contradicted another witness who said the land had been given out to the customary tenant by Dada Okin especially when it had not been an issue in the trial whether the land was given out by Dada Okin alone or whether it had only been given out by him and his younger cousin Sogunro.

(iii) The mere fact that some witnesses, for a party say they do not know or have never heard of the person pleaded to be the original owner of the land, cannot properly lead to an inference or conclusion that such evidence contradicts the evidence of another witness who knows such original owner.

(iv) The High Court was wrong and so was the Court of Appeal in upholding him that there was therefore contradiction between the evidence of the witness for the plaintiffs who either said they did not know Aina Adeokun or had never heard of him or did not know the father of Dada Okin on the one hand and the other witnesses for the plaintiffs who have traditional evidence that they knew Aina Adeokun as the original owner or that they knew the name of Dada Okin’s father.”

It is therefore crystal clear from the grounds of appeal that the main issue raised is one of proof. Such an issue naturally requires an examination of the pleadings, the evidence and the findings made by the learned trial judge and affirmed by the Court of Appeal and this exercise I now embark on.

The appellants’ statement of claim in suit No. IK/233/65 contains only 12 paragraphs and the very material facts pleaded are in paragraphs 4, 5, 6, 8 and 9 and 10 are as follows:

4. The plaintiffs are the owners and occupiers of a farm situate at Agidingbi village, Ikeja District of the Colony Province, more particularly described and edged RED on the plan attached hereto and marked Exhibit’ A’.
5. The plaintiffs state that since 1874 their grandfather, Kasumu Aleshinloye, who first settled on that piece of land later known at (sic) Agidingbi village together with the surrounding lands including the said farm and after his death their father aforesaid had been customary tenant of one Dada Okin of Abule Hausa Agege in respect of the said farm.
6. Shortly before his death in or about 1926, the aforesaid Dada Okin sold the farmland in dispute and three others to Alhaji Gbadamosi Mogaji absolutely under native law and custom for the sum of ‘a340.
7. By a receipt dated 11th March, 1930, one David Sogunro as head of Dada Okin family confirmed the sale of the said farm among others to Alhaji Gbadamosi Mogaji.
8. The plaintiffs aver that since 1874 the plaintiffs their father and their grandfather aforesaid were in effective occupation as customary tenants and for the past forty years have exercised maximum acts of ownership and been in effective possession of the farm in dispute without let or hinderance from anyone.
9. Sometime in October, 1965, the defendants with their agents and servants wrongfully entered the said farm with tractors and lorries and destroyed economic crops like cocoa, kolanuts etc. and erected sheds thereon.
10. The plaintiffs aver that the defendants have since the filing of this action commenced building operation on the said affirm.”

The defendants in suit No. IK/233/65 in reply to the above averments pleaded in paragraphs 3, 4 and 5 of their statements of defence as follows:

“3. The defendants are aware that Messrs Cadbury Nigeria Ltd claims interest in the property which is the subject matter of this action but the aforesaid company is a distinct entity from the defendants to this action.

4. The defendants aver that if (contrary to its contention) the court should find that it made entry on the land in dispute or any portion thereof then such entry was made with the authority and consent of Cadbury Nigeria Ltd. who are the true owners of the said land.

The defendants deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the statement of claim.

Thus, it is apparent that the defendants joined issue with the plaintiffs on every allegation of fact made by the plaintiffs in their pleadings.

The pleadings in suit No. IK/I71/68 is copious and more detailed. The more important and pertinent facts are pleaded in paragraphs 4, 4a, 4b and 4c; 5, 5a, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 19 and 21 of the amended statement of claim. For the purpose of this judgment and for easy reference, the facts pleaded in the paragraphs are as follows:

“4. The land in dispute is situate at Agidingbi village in the Ikeja Division of Lagos State and is shown on the plan attached hereto and therein edged RED

4a. The land in dispute forms a portion of a large track of land which originally belonged absolutely under native law and custom to Aina Adeokun;

4b. Upon his death intestate the land devolved under native law and custom to his children – Kuleni and Okuru who became known as the Aina Adeokun family whose descendants become known over the years variously as Dada Okin family or the Sogunro family.

4c. Dada Okin son of Kuleni died without issue and Dada Sogunro and Oshunlana were the children of Okuru.

5. The plaintiffs’ grandfather, Kasumu Aleshinloye in 1874 became customary tenant of the Aina Adeokun family otherwise known as Dada Okin family under Yoruba native law and custom and was put in possession of four large parcels of land, and, as customary tenants, farmed on the same and remained in exclusive possession thereunder until his death in 1907.

5a. The land in dispute forms portion of one of the four parcels granted to Kasumu Aleshinloye;

6. The said Kasumu Aleshinloye died intestate in 1907 leaving him surviving four children who succeeded to their late fathers aforesaid interest in the said land……. and remained in continuous and undisturbed possession of the lands including the land in dispute.
7. Thereafter, the four surviving children of the said Kasumu Aleshinloye allotted different portions of the said parcel of land amongst themselves for the separate use of each of them as customary tenants of the Aina Adeokun family;
8. The land in dispute was a portion of one of the four farmlands and was thus allotted inter alia to Gbadamosi Mogaji one of the said children of Kasumu Aleshinloye and the said Gbadamosi Mogaji thereafter remained in exclusive possession of the said land as customary tenant.
9. In 1925 Dada Okin as head and on behalf of the Aina Adeokun family (also then referred to as the Dada Okin family) sold the land in dispute with three other lands to Gbadamosi Mogaji absolutely in accordance with Yoruba native law and custom for the sum of 40 pounds (N80.00) and usual customary gifts, and thereupon Gbadamosi Mogaji became absolute owner thereof under Yoruba native law and custom;

10 After the death of Dada Okin sometime in 1926, one David Sogunro who succeeded him as head of the Dada Okin or Aina Adeokun family in 1930 acknowledged in writing the fact of the payment of the purchase price of the four parcels of land to Dada Okin.

11. Gbadamosi Mogaji remained in peaceful possession of the said farmland until his death intestate in 1945.
12. Gbadamosi Mogaji died leaving him surviving several children who have succeeded into the land absolutely under native law and custom and the said children have remained in possession of the land in dispute until they were disturbed in 1965.
13. In October, 1965, Messrs Poletti Brothers Limited, the 2nd defendant, came into the land in dispute and destroyed economic crops, trees and other farm produce and thereafter commenced building operations thereof.
14. The plaintiffs aver that the defendants are estopped from denying the validity of the sale of the land in dispute by Dada akin to Gbadamosi Mogaji on the ground that: In suit No. 1K/236/65 between the plaintiffs herein as plaintiffs and E.O. Ashamu (the 1st defendants’ vendor herein) as defendant in which the source of the plaintiffs’ title is the same one relied upon herein, it was open to the said E.O. Ashamu to so plead but he did not plead the invalidity of the sale to Gbadamosi Mogaji.
15. The plaintiffs further aver that the defendants are estopped from contending that the plaintiffs are not owners of the land in dispute by reason of the judgment in suit No. 1K/236/65 O.K.O. Mogaji & Ors. v. E. O. Ashamu and the decision of the Supreme Court in respect of the appeal relating thereto in suit No. SC/311/73
16. The plaintiffs aver that the defendants are estopped from denying that the plaintiffs’ predecessor-in-title Gbadamosi Mogaji obtained a good title under Yoruba native law and custom to the land in dispute on the following grounds.

(i) ………….

(ii) ………….

(iii) …………

(iv) …………

(v) ………….

(vi) ………….

(vii) …………

(viii) …………

(ix) The judgment in suit No. 1K/236/65 had specifically determined the issue that the sale made by Dada akin as Head of the family of Aina Adeokun in 1926 was a valid and complete sale under Yoruba native law and custom and that the same passed on absolute title under Yoruba native law and custom to the land in dispute therein and a fortiori to all other plots covered by the transaction including the land in dispute) to Gbadamosi Mogaji

(x) ………………….

21. The 1st defendants have remained in possession of the said land and carried on business in a factory now erected thereon at great profit themselves.

The defendants duly filed an amended statement of defence in reply wherein they pleaded all the important material facts they relied on. Deserving of special mention in this judgment are paragraphs 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 they read as follows:

2. The defendants aver that the land in dispute is a portion of a vast area of land (hereinafter referred to as “the land”) on which the villages of laguna, Ogba, Agidingbi, Abule Tapa, Abule George and some smaller villages are located. The defendants will rely on a plan of Ogba made in 1896 by the late Herbert Macaulay, Civil Engineer and Licensed Surveyor which shows the various farmlands in the area and the location of the villages aforesaid.
3. The defendants deny paragraphs 4(a), 4(b) and 4(e) of the statement of claim.
4. The defendants deny paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19,20 and 21 of the statement of claim.
5. The defendants aver that the alleged transaction between David Sogunro and Gbadamosi Mogaji pleaded in paragraph 10 of the amended Statement of claim cannot operate to confer any right, title or interest in the plaintiffs in or over land in dispute because:

(a) Dada akin could, if there was any such transaction, have issued the receipt himself.

(b) David Sogunro was acting in lis as a successor to the estate of Dada akin in respect of the properties claimed personally by Dada akin and not in respect of family property of Aina Adeokun

(c) David Sogunro agreed to sell land to Gbadamosi Mogaji with effect from 11.3.30 in accordance with the common law, i.e. the agreement is coupled with the obligation of the vendor (Sogunro) to execute the necessary conveyance

(d) David Sogunro did not act nor did he purport to act for or as representative of the Adeokun family.

(e) There is no connection between the land in dispute and the undefined or ill defined area of the land in the alleged acknowledgment pleaded in paragraph 10 for the amended statement of claim.

(ii) The several matters pleaded in this item under item (a) to (c) of this paragraph are relied upon jointly, severally or in the alternative;

8. With reference to paragraphs 17, 18 and 19of the amended statement of claim, the defendants aver that they cannot be estopped by the proceedings and judgment in suit No. IK/236/65:

(a) they were not parties to the said proceedings nor did they have any notice of such proceedings.

(b) all the issues which arc raised by the defence to this action have not been considered or determined in the aforesaid proceedings;

(c) this action was commenced in 1968 before judgment was delivered in suit No. IK/236/65

(d) the title upon which the defendants rely in this action was acquired by them before judgment was recovered in suit No.IK/236/65;

(e) some of the documents of title relied upon by E. O. Ashamu in granting title to the first defendant were obtained by him after the commencement of the proceedings in IK/236/65 and did not form part of the proceedings in that action.

9. The defendants aver that by deed dated the 12th day of July, 1967, and registered as No. 32 at page 32 in vol. 1012 of the Register of Deeds, the 1st defendant acquired title to the land near Agidingbi village now occupied by it from Emmanuel Oyedele Ashamu. The said land is a portion of the land.
10. The defendants aver that the land belonged originally to the descendants of Oshun who are otherwise known as the Ashade family and they have over the years exercised acts of ownership and possession on the said land;
11. By a Power of Attorney made on the 4th day of December, 1962 and registered as No. 57 at page 57 in vol. 564 of the Lands Registry in the Office at Lagos, the Ashade family authorized Chief Sani G. Ashade (the Head of the family) and others to sell the land or any part thereof.
12. Emmanuel Oyedele Ashamu aforesaid purchased portions of the land from the attorneys of the Ashade family for valuable consideration. The defendants will rely on the conveyances granted to Emmanuel Oyedele Ashamu pursuant to such purchases.
13. In proof of ownership of the land by Asahde family the defendants will rely on

(a) the proceedings and judgment of the court in the cases listed in the table of cases at the end of this statement of defence;

(b) the exhibits tendered in the cases aforesaid;

14. Further and in the alternative, by reason of the judgments referred to in paragraph 13(a) of this statement of claim, Dada Okin and anyone who claims through or under him are estopped from claiming the land and consequently of claiming the land in dispute in this action.
15. The plaintiffs who are claiming through or from Dada Okin are estopped by the judgments pleaded herein from asserting that the Asade family are not the owners of the land.

Table of Cases

Suit No. Title

128/1890 Alii v. Ashade

Ashade v. Brimah Balogun

Osho v. Odu Ijebu

Osho v. Shomefun

227/1911 Ashade v. Brimah Bashorun & Awudu

184/13 Dada Okin v. W. B. Maciver & Co. Ltd.

Lawani Ojo and Ashade

224/18 Ashade v. Aileru

75/1918 Ashade v Dada Okin

445/22 Ashade v Dada Okin

169/1928 Apotu v. Asatu Adeyanju

271/36 Oje Asahde v. DadaSogunro

337/1950 R. A. Randle v. Elegbede & Ors.

Consolidated

418/1950 A. I. Sogunrov. R. A. Randle & Ors.

WACA No. 3886 R. A. Randle v. Elegbede & Ors.

115/59) Minister of Lands etc. v.

Dr. Nnamdi Azikwe & Ors

SC.169/68)

The pleadings in suit No. IK/172/68 went along similar lines as those in suit No. IK/171/68 but with slight variation, the plaintiffs and the parcel of land in dispute being different. The plaintiffs were the two surviving children of Bale Saka.

The statement of claim contains 12 short paragraphs and of particular importance for this judgment are paragraphs 4, 5, 6, 8, 9, 10, 11 and 12 which read as follows:

4. The land in dispute is situate at Agidingbi village in the Ikeja Division of Lagos State and is shown on the plan attached hereto and thereon edged RED.
5. The land in dispute formed portion of land originally belonging to the family Aina Adeokun which family was variously known as
6. Dada Okin family or Sogunro family.

Some year ago, one Bale Saka became customary tenant of the Dada Okin family and was put in possession thereof.

8. The said Saka farmed the said land and remained in exclusive possession thereof until his death intestate some years ago.
9. The said Bale Saka died intestate many years ago leaving him surviving the plaintiffs who succeeded to their late fathers aforesaid interest in said land under Yoruba native law and custom and remained in continuous and undisturbed possession of the land in dispute.
10. Sometimes early in 1949, the plaintiffs agreed to purchase the reversion of the family of Dada Okin in the land in dispute for 12 pounds and made a part payment of 6 pounds as per purchase receipt dated 1st February, 1949 and paid the balance of 6 pounds as per purchase receipt dated the 16th April, 1962 and thereafter became the absolute owners of the land in dispute under native law and custom.
11. In October, 1965 the 1st defendant by its agents Messrs Polletti Brothers Limited and the 2nd defendant by their servant, and agents came on to the land in dispute and destroyed economic crops, trees and other farm produce and thereafter enclosed the same.
12. Notwithstanding written warnings, the 2nd defendant continued to trespass on the said land.”

In reply to this amended statement of claim, the defendants did file an amended statement of defence containing 16 fairly long paragraphs. These paragraphs challenged the validity of the title of the plaintiffs/appellants and set up the title of 1st defendant. In other words, the issue of title was raised although the appellants did not seek a declaration of title as one of the reliefs they desired the court to grant.

Pertinent to the issue for determination in this appeal are paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 the facts in which have also been pleaded in suit No. IK/171/68 by the defendants/respondents who are also defending the action in suit IK/171/68. The paragraphs read as follows:

5. The defendants aver that the allegation that the land in dispute formed portion of land originally belonging to the family of Aina Adeokun which family has variously been known as Dada Okin family or the Sogunro family as alleged in paragraph 5 of the 8 statement of claim is unfounded and was made for the first time in recent years.
6. The defendants aver that the land in dispute is part of a vast area of land (hereinafter referred to as the land”) on which the villages of Jaguna, Ogba. Agidingbi, Abule Tapa, Abule George and some smaller villages are located.
7. Between 1890 and 1926 there have been numerous litigations over title to the land between –

(a) descendants of Oshiun who were often described as “Ashade family” and or grantees of that family on the one hand; and

(b) (b) Dada Ok in and persons who obtained grant from him.

8. After the death (without issue) of Dada Okin in 1926, his relatives who described themselves as Sogunro family continued to bring or provoke further litigations over the land but with no more success than Dada Okin.
9. The defendants aver that at all material times Dada Okin referred to in the satement of claim had always falsely claimed that he owned the land or that he inherited the same from his father Kuleni. Dada Okin never throughout his life claimed the land on behalf of Adeokun family and his descendants have always (until around 1965) falsely claimed the land as the property of the descendants of Dada Okin who they claimed to be the original owners
10. The defendants aver that the land belonged originally to the descendants of Oshuim who are otherwise known as the Ashade family and they have over the years exercised acts of ownership and possession on the said land
11. In proof of the ownership of the land by Ashade family, the defendants will rely on –

(a)the proceedings and judgment of the court in the cases listed in the Table of cases at the end of this statement of defence; and

(b)he exhibits tendered in the cases aforesaid.

12. By reason of the judgements referred to in paragraphs 7 hereof Dada Okin and his descendants are estopeed from claiming the land and consequently, of claiming the land in dispute in this action against the Ashade family and those claiming through or under them.
13. The defendants aver that by deed dated the 12th day of July, 1967, and registered as No. 32 at page 32 in volume 1012 of the Register of Deeds, the first defendant acquired title to the land near Agidingbi village now occupied by it from Emmanuel Oyedele Ashamu. The said land is a portion of the land.
14. By a power of Attorney made on the 4th day of December, 1962, and registered as No.57 at page 57 in volume 564 of the Land Registry in the Office at Lagos, the Ashade family authorized Chief Sanni G. Ashade (the head of the family) and others to sell the land or any part thereof.
15. Emmanuel Oyedele Ashamu aforesaid portions of the land from the attorneys of the Ashade family for valuable consideration. The defendants will rely on the conveyances granted to Emmanuel Oyelede Ashamu pursuant to such purchases.
16. The defendants aver that they cannot be estopped by the proceedings and judgment in suit No. IK/236/65.

(a) they were not parties to the said proceedings nor did they have any notice of such proceedings;

(b) all the issues which are raised by the defence to this action have not been considered or determined in the aforesaid procceedings;

(c) this action was commenced in 1968 before the judgment was delivered in suit No. IK/236/65;

(d) the title upon which the defendants rely was acquired by them before judgment was recovered in suit No. IK/235/65;

(e) some of the documents of title relied upon by E.C. Ashamu in granting title to the 1st defendants were obtained by him after the commencement of proceedings in IK/236/65 and did not form part of the proceedings in that action

Table of Cases

Suit No. Title

128/1890 Alii v. Ashade

Ashade v. Brimah Balogun

Osho v. Odu Ijebu

Osho v. Shomefun

227/1911 Ashade v. Brimah Bashorun & Awudu

184/13 Dada Okin v. W. B. Maciver & Co. Ltd.

Lawani Ojo and Ashade

224/18 Ashade v. Aileru

75/1918 Ashade v Dada Okin

445/22 Ashade v Dada Okin

169/1928 Apotu v. Asatu Adeyanju

271/36 Oje Asahde v. DadaSogunro

337/1950 R. A. Randle v. Elegbede & Ors.

Consolidated

418/1950 A. I. Sogunrov. R. A. Randle & Ors.

WACA No. 3886 R. A. Randle v. Elegbede & Ors.

115/59) Minister of Lands etc. v.

Dr. Nnamdi Azikwe & Ors

SC.169/68)

From the above pleadings, it is abundantly clear that the main issue contested is the issue of title. The appellants claimed title to the land in dispute. The respondents denied that the appellants have title and turned round to claim title to the land in dispute. Each side then set up a different root of title.

While the appellants’ root of title is traced to Adeokun family, the respondents’ root of title is traced to Ashade family. The appellants conceded that their interests did not amount to absolute ownership when their ancestors acquired the land in dispute from the Adeokun family. It was customary tenancy that Kasunmu Aleshinloye acquired from Adeokun family in 1874 which he passed down to his son Gbadamosi Mogaji. It was also customary tenancy that Bale Saka acquired which he on his death passed on to his two daughters, Allimotu Saka and Morinatu Saka the plaintiffs in suit 1K/172/68.

The metamorphosis of Adeokun family to Dada akin family and David or Dada Sogunro family seems to be a mystery that has beaten all explanations in view of the well known customary law of inheritance among the Yorubas. There is therefore ample justification for the refusal of the learned trial judge and the learned Justices of the Court of Appeal to accept the line of succession put up by the appellants.

The appellants’ dissatisfaction with the judgments of the courts below stems from this rejection and learned counsel for the appellants has launched scathing attacks on the findings of facts by the learned trial judge and the Court of Appeal. What then were these findings of facts

A Concise narration of the facts in this case as found by the learned trial judge and affirmed by the Court of Appeal is, in my view, desirable. The 1st suit 1K/233/65 was instituted by the descendants of one Gbadamosi Mogaji against Cadbury & Fry (Export) Limited for damages for trespass to the land at Agidingbi and for an injunction. The land, the subject matter of the action has now been occupied and developed by Cadbury Nigeria Limited.

The plaintiffs in the second suit – Suit No. 1K/171/68 are the same descendants of Gbadamosi Mogaji. They claim a declaration of title, damages for trespass and an order of injunction against Cadbury (Nigeria) Limited. The defendant Company – Cadbury Nigeria Limited obtained title to the land from E.O. Ashamu for Chief E.O. Ashamu sold and transferred the land to the Company for an estate in fee simple. See Exhibit D3. The land in dispute in suit No. 1K/l72/68 is the land immediately adjoining the land in dispute in the first two actions. In this action, the plaintiffs are the two surviving children of one Saka and claim damages of trespass and injunction against Cadbury (Nigeria) Limited as the occupation and development by Cadbury (Nigeria) Limited span both parcels of land, i.e. the land of Gbadamosi Mogaji family and the land of Saka family. The learned trial judge found as fact that the descendants of Gbadamosi Mogaji inherited the land from their father Gbadamosi Mogaji. Gbadamosi Mogaji bought the land from Dada akin. The learned trial judge rejected the story that Adeokun family or Dada akin had let in Kasunmu Aleshinloye, the father of Gbadamosi Mogaji as customary tenant in 1874. Also rejected was the story that when Kasunmu Aleshinloye died in 1907, Gbadamosi Mogaji became the customary tenant of Dada akin in respect of the land in dispute following the partitioning of the parcels of land in respect of which Kasunmu Aleshinloye was customary tenant of Dada akin by the surviving children of Kasunmu Aleshinloye. Also rejected was the contention of the appellants that Kasunmu Aleshinloye was the head customary tenant of Dada akin. Bale Saka obtained from Dada akin a grant of customary tenancy of the land now being claimed by Allimotu and Morinatu Saka. Dada akin was a grandson of Aina Adeokun and an only child of his father, Kuleni. Dada akin died about 1926 and Dada or David Sogunro in 1930 by exhibit L confirmed the sale of the land to Gbadamosi Mogaji but this confirmation was of no effect as Dada akin had sold the land absolutely.

On the death of Bale Saka his interest in the land granted him by Dada akin devolved on his two children Alimotu and Morinatu. These two children decided to buy the land and acquired absolute title to it in 1949. They bought it from Dada Sogunro for 12. pounds 10/. But they paid only 6 pounds, in 1949 and could only complete the payment in 1962 when they paid the balance of 6. pounds 10/ Dada Sogunro is also a grandson of Aina Adeokun but not of the same father as Dada akin. His father was Okuru.

Although it is in evidence that Aina Adeokun originally owned the land in dispute, there is no evidence of his his own acquisition. There is also no evidence of how the land became known as Dada akin family land or Dada akin’s land thereby evidence cut off Kuleni, the father of Dada of akin and Okuru the father of Dada Sogunro from the line of succession. I observe from this maze of conflicting evidence that whereas 2nd p.w. and 4th p.w. had never heard of Aina Adeokun; to the 3rd p.w., Aina Adeokun was one of the children of the original owner of the land and a brother of Sogunro, Salami and others. Sogunro, as far as the 5th p.w. was concerned was the original owner. The 6th p.w. regarded Aina Adeokun family as the original owners. But the 7th p.w. gave the original owners as Aina Adeokun not Aina Adeokun family. The 2nd p.w. and 4th p.w. knew of Dada akin as the original owner. It therefore seems to me that the evidence is totally at variance with the pleading in which it was averred, asserted and alleged that Aina Adeokun was the original owner of the land. If one witness says Adeokun is the original owner and another says he has not heard of him, Dada akin is the original owner, a third person gets up and says oh no, Adeokun family are the original owners and yet a forth person gets up and says oh no! Sogunro is the original owner, there is definitely sharp conflict among the four versions. The compound conflicts can result in nothing less than the breakdown of the case for the plaintiffs as set out in the pleadings. The defence case is solid. There is really nothing in the evidence which imports the application of the principle of Onubongun v. The State. This is a case of the conflict between one witness and another destroying the case pleaded.

Chief E.O. Ashamu, D.W.1 sold and executed a deed of conveyance Exhibit D3 in favour of the 1st respondent. He had bought the land from Ashade family from whom he received deeds of conveyance Exhibits D23 and D24. The result of inquiries he made before he bought showed that Ashade family were the owner of the land in dispute and that this has been confirmed in several court judgments. These are suits No. 75/1918; Ashade v. Dada Okin (page 304 Exhibit N); Exhibit D7 Alii v. Ashade of 10/2/1890 (pages 224-247 of Exhibit N), Exhibit D9 suit 128/1895Ashade v. Braimoh Bashorun and Awudu (pages 260 – 299 of Exhibit N) Exhibit D10. Suits Nos. 337/1950 and 418/50 Randle v. Liadi Elegbede and 12 ors. (Consolidated) Exhibit D 14. Suit No. 184/1913 Dada Okin v. W. B. Maclver & Co. Ltd. Exhibit D12 pages 119 -122 of Exhibit D11, suit No. 227/1911 Ashade v. Braimoh Bashorun & Ors. Exhibit D13-; WACA No. 3386 of 26/5/1953 Randle v. Elegbede & ors. Exhibit Di5. Supreme Court judgment in suit No. B

SC.i69/68 Minister of Lands v. Dr, Nnamdi Azikiwe Exhibit D16. He also bought the land from others who claimed they owned or had interest in the land to avoid litigation. He admitted being the defendant in suit IK/236/65 and said that he relied on conveyance Exhibit M and Exhibit N at page 254 of the proceedings. The Sogunro family executed Exhibit H in his favour. He tendered conveyance dated 14/5/63 Exhibit D24 which conveyed to him the areas marked EFGH and I on plan AK.155 of 5/3/63. He obtained another conveyance earlier on 12th December, 1962, Exhibit D23 covering areas A, B, C, D, on the plan attached to the deed. The original of Exhibit D17 is Exhibit D24. D17 is a certified true copy. Another conveyance Exhibit D25 was executed by Ashade family in favour of Chief Ashamu on 25th November, 1965, and the fifth conveyance on Exhibit 026 was executed on the 16th of February, 1966 in favour of Chief Ashamu by the Ashade and the Omosehim families.

The land Chief E.O. Ashamu bought is known as Ogba land and Agidingbi is part of Ogba land. The land covered by Exhibit D24 is described as being situate and lying at Agidingbi. it covers the land Chief E. o. Ashamu sold and conveyed to Cadbury Nigeria Ltd. Chief E. O. Ashamu testified that the land in dispute in suit IK/236/65 is not within the land covered by Exhibit D24 and the court so found. It was Exhibit 023 he relied on in suit IK/236/65. Gabriel Oiran Adewunmi, 2nd d.w. tendered Exhibit D5 certified Photostat copy of plan Exhibit 02 in suit HK/115/59.

Olalere Ashade 3rd d.w. a pensioner and a member of Ashade family gave testimony part of which found favour with the appellants and part of which found favour with the respondent. The trial court found part of his testimony marked and riddled with obvious inaccuracies and contradictions and rejected that part. Learned, counsel sought to capitalise on these inaccuracies and utilise them to support his contention that Kasunmu Aleshinloye was customary tenant of Oada Okin to the knowledge of the Ashade family in respect of the land in dispute. The learned trial judge quite properly rejected the inaccuracies and concluded that there was a mistaken identity of Gbadamosi Mogaji as Kasunmu Aleshinloye. The witness who was born in 1916 could not possible have seen Kasunmu Aleshinloye who died in 1907 alight from a train coming from Lagos at Agege and walk on foot through Ogba to Agidingbi. I agree with the learned trial judge when he held:

“From the evidence of Olalere Ashade, it is clear that he could not have known Kasunmu Aleshinloye as customary tenant of Oada Okin on the land in dispute. Kasunmu Aleshinloye died in 1907. The witness himself was born in 1916. I am satisfied on the evidence however and I find as a fact that Olalere Ashade was speaking of Alhaji Gbadamosi Mogaji Aloko and not of Kasunmu Aleshinloye.”

The 4th d.w., Mr. A. Seweje, a licenced surveyor, produced Exhibit D18, a composite plan showing land covered by Exhibit D3 in RED. A portion of the land in Exhibit D5 is shown on Exhibit D19.

The learned trial judge could not relate the plans Exhibit D3 and Exhibit 0 because they do not show a common origin. As the plan showing B the extent of Ashamu land was not available when 4th d.w. was preparing Exhibit D18, Exhibits A, C and D3 could not be related to such plan by him.

After a reference to paragraphs 2 and 13 of the statement of defence in suit IK/171168 and analysing the judgments in the cases listed in the table of cases, particularly

(a) suit No.418/1950 R.A. Randle v. Elegbede & Ors.; A.L. Sogunro v. R.A. Randle & Ors. page 57 of Exhibit D11

(b) Exhibit D9 – Alii v. Ashade

(c) Exhibit D10 – Suit No. 128/1896 Ashade v. Braimah Bashorun and Awudu; Osho v. Odu Ijebu; Osho v. Shomefu

(d) Exhibit D7 – Suit No. 75/1918 Ashade v. Dada Okin

(e) Exhibit D13 – Suit No. 227/1911 Ashade v. Braimah Bashorun and Awudu (page 119 of Exhibit D11)

(f) Ashade v. Braimah Bashorun and Awudu suit No. 184/1895

(g) Exhibit D12- suit No. 184/1913 Dada Okin v. WB. Maclver Ltd. & Ors.

(h) Exhibit D8 – suit No. 169/1928 Apotu v. Asatu Adeyanju

the learned trial judge said:

“All these cases fought by Ashade family or by their privies from 1890 to 1950 are in respect of land at Abule Tappa. The defence, however contends that Abule Tappa is within Ashade’s Ogba land as well as Agidingbi village.”

and went on to hold

“I am satisfied on the evidence before me, both oral and documentary, and I find as a fact, that the villages of Alawusa, Agidingbi, Abule Fagba, Abule George, Peter Davies Farm are all within Ashade’s Ogba land. I am reinforced in this view, that Agidingbi village is within Ashade’s Ogba land, by the evidence of the 8th p.w. Olaitan Ishmail who testified that the Cad bury factory at Agidingbi is part of Ogba Industrial Estate………I am satisfied on the evidence before me both oral and documentary that Agidingbi village and all the farmlands surrounding it lie within Ashade’s Ogba land.”

With regard to the identity of the land covered by Exhibit L with the land in dispute in suit No. IK/171/68, the learned trial judge said:

“On the whole, I am satisfied that the plaintiffs have given enough description of the boundaries of the land they are claiming sufficient to identify it with the land described in item 2(b) of Exhibit L.”

Exhibit L is self explanatory and couched in plain simple unambiguous terms. Paragraphs I and 3 read:

1. “This is to certify that I David Sogunro, farmer, native of Otta Town, known as successor and head of the family of Dada Okin, who was the landlord of the vicinity of Agidingbi village, do hereby acknowledge and confirm the receipt of forty pounds (‘a340.0.0) paid to the landlord Dada akin for the portion of land known as Alhaji Gbadamosi Mogaji farmland.
2. That I sold to him all my right and title on the land stated above forever as from the 11th March, 1930.”

After reviewing the evidence of the witnesses on the issue of sale, the learned trial judge said:

“I accept the submission of learned counsel for the plaintiffs that the alleged sale in 1925 was a valid sale under customary law of the land in dispute by Dada akin to Gbadamosi Mogaji and there was nothing left for Dada Sogunro which he could sell in 1930….” I hold the ‘view that as between Dada akin and Gbadamosi Mogaji family, there was a valid sale under customary law by Dada akin to Gbadamosi Mogaji of the land in dispute in 1925. A person who was not a party to that contract of sale could still challenge the validity of the sale if he can establish that Dada akin was not the legal owner of the land he sold.

I do not accept the submission of Ajayi however that Dada Sogunro signed the document as head of Aina Adeokun family. Throughout the whole length and breadth of Exhibit L, there was not one word about that nomenclature, Aina Adeokun family.”

On the question of ownership of the land in dispute, the learned trial judge said:

“There is a maze of contradictions in the evidence of the plaintiffs and their witnesses on this issue. and so, I reject the traditional evidence as given by the plaintiffs that the land in dispute at Agidingbi village originally belonged to Aina Adeokun under customary law. I accept the evidence of the 3rd d.w. Olalere Ashade that Ashade family land starts at Agege and extends up to Ogba, Alawusa, Agidingbi and keeps boundary with Oregun and Isheri. I also believe his evidence that Agidingbi is part of Ashade family land.”

On the question of Kasunmu Aleshinloye being customary tenant of Adeokun family or Dada akin family in 18740r at any time, the learned trial judge said:

“I have carefully considered the evidence of the plaintiffs and their witnesses on this issue and I am unable to accept their testimony that Kasunmu Aleshinloye became customary tenant of Aina Adeokun family otherwise known as Dada akin family………..

I find as a fact that Kasunmu Aleshinloye was never at any time a customary tenant of Dada akin family on any farmlands at Agidingbi village.”

With regard to Saka family’s claim of ownership, the learned trial judge said:

“I am satisfied on the evidence and I find as a fact that Saka family bought farmland at Agidingbi only in 1949 and completed the purchase price in 1962.”

That, in my view, concludes the short narration of the facts and findings in this case.

It is now necessary to consider the arguments and submissions of counsel for each side. As indicated earlier, this is principally an appeal on facts. As there are concurrent findings of facts touching the original ownership of the land on which issues were joined, the task before learned counsel for the appellants is a very heavy one.

As earlier indicated, counsel for the respondents took objections to the consideration of two questions dealt with in the appellants’ brief of arguments and the objections were upheld by us. The two questions as stated in the brief are:

“(a) whether the decision of the Ikeja High Court in suit No. IK/233/65 – O.K.O. Mogaji and others v. Chief E.O. Ashamu operates by way of estoppel against the defendants

(b) whether the courts below were correct in holding that the sale of the land in dispute to Mogaji family in 1925 was or was not a sale on behalf of the Adeokun family.”

Before leaving this point of objection, I wish to point out an error that perpetuated itself in both the appellants’ and the respondents’ brief. It is an error in stating the suit number of the case – O.KO. Mogaji v. Chief E.O. Ashamu. The briefs gave the suit number as IK/233/65 instead of IK/236/65. Suit No. IK/233/65 is one of the three suits in the instant appeal which were consolidated at the High Court for purposes of trial.

The parties are not the same in both suits, the defendant in suit IK/233/65 is Cadbury Fry (Export) Limited while the plaintiffs are the same in both suits.

Chief F.R.A. Williams, S.A.N., for the respondent also drew the attention of the Court to the fact that grounds 7 and 8 of the grounds of appeal were abandoned in the brief as there were no arguments at all in support of both grounds. Mr. G.O.K. Ajayi, S.A.N., for the appellants conceded that no arguments were offered in support of the two grounds as he did not intend to offer arguments on the two grounds. Grounds 7 and 8 were accordingly struck out. These grounds raised the question of the admissibility of Exhibits 5, 6, 23, 24 and 25.

Turning to the findings, learned counsel for the appellants submitted that the appellants and their predecessors-in-title had exercised acts of ownership for a very long time; at least from 1874 and that on the evidence before the learned trial judge, he had no alternative but to find in the appellants’ favour that both Kasunmu Aleshinloye and his son, Gbadamosi Mogaji after him were successively in possession as customary tenants of Aina Adeokun family from 1874 right down to 1925 and onwards. Learned counsel relied heavily on the evidence of 3rd d.w. Olalere Ashade and contended that the learned trial judge was not entitled to make the conclusion he made that the 3rd d.w. could not have been referring to Kasunmu Aleshinloye in his evidence. He submitted that the evidence of3rd d.w. supported the evidence of the 5 prosecution witnesses and that as the evidence was unchallenged, the learned trial judge had no alternative but to find that Kasunmu Aleshinloye was a customary tenant. He then asked this court to reverse the finding of the learned trial judge and the Court of Appeal on the point. Learned counsel then cited:

Nwabuoku v. Ottih (1961) All NLR. 487 at 490

in support, and urged the Court to hold that from 1874 to 1965 the plaintiffs have been in possession first as customary tenants of Aina Adeokun family and from 1925 as owners.

Learned counsel then dealt with the question of ownership of the land by Adeokun family. He submitted that if plaintiffs’ predecessors-in- title were held to be in possession as customary tenants of Aina Adeokun, that would go to support the requirement of numerous and positive acts of ownership by Aina Adeokun family for over 90 years to warrant the inference that they were owners, a requirement recognised by this Court in Idudun v. Okumagba (1976) 9/10 SC. 227. 11will also satisfy the requirement of conclusive traditional evidence sufficient to support a declaration of title.

Learned counsel also contended that the Court of Appeal and the High Court were in error when they held that they could not look at the evidence of acts of ownership until the appellants first proved how their original predecessors-in-title came to own the land. Learned counsel then submitted that it is inconsistent with the five ways recognised by this Court in Idudun’s case. He then cited the case of Alade v. Awo (1975) 4 Sc. 215 at 233.

Counsel next referred to the case of Kojo II v. Bonsie (1957) 1 WLR. 1223 at 1226 where Lord Denning gave the guidelines for resolving conflicts in traditional evidence. Learned counsel submitted that once one accepts the basis of the principle in Kojo v. Bonsie, witnesses on the same side may give conflicting evidence or versions of what was said over 100 years ago and repeat it. A conflict of such a nature ought not to be fatal to the case of Adeokun being the original owner, learned counsel observed and urged. He conceded that Morinatu Saka, 2nd p.w. said she had never heard of Adeokun family. He pointed out that others who have heard of Adeokun family have testified to supply the missing evidence. He submitted that the descendants of Adeokun are still on the land.

On the table of cases pleaded by the respondent in the statement of defence, learned counsel observed that they do not relate to the land in dispute but to Abule Tappa or Alawusa village. Finally, learned counsel for the appellants submitted that the learned trial judge and the Court of Appeal were in error in their application of section 45 of the Evidence Act. He pointed out that the land in dispute is half mile from Alawusa village and that it was too far to attract the application of the presumption ..

Chief F.R.A. Williams, S.A.N. in reply submitted that in view of the ruling on the preliminary objections, it was not open to the appellants to contend that the appellant obtained their title from Aina Adeokun family. He observed that the finding of the High Court confirmed by the Court of Appeal, on the issue has not been challenged. He contended, and I agree with him, that Exhibit L does not prove that the appellants’ predecessors-in-title purchased the land from Aina Adeokun family. He submitted that there is a further concurrent finding which the appellants overlooked. It is that the original owners of the land in dispute were the Ashade family. He also referred to the judgments pleaded and tendered in evidence and submitted that they support the concurrent findings. He observed that counsel for the appellants has been unable to show any circumstances which would warrant an interference with the concurrent findings made by the two lower courts the High Court and the Court of Appeal.

Learned counsel then submitted that once one of the parties can trace his title to the true owners, evidence of long possession or acts of possession becomes irrelevant unless the possession is of such nature as to oust the title of the true owners by the doctrine of acquiescence and long possession. He then cited in support:

Da Costa v. Ikomi (1968) 1 All NLR. 394

Sanyaolu v. Coker (1983) 1 SCNLR. 168 at 182E

It is my opinion that having pleaded and traced the appellants’ root of title to Aina Adeokun fami]y, the appellants could not with a wave of the hand dispense with proof of that title as pleaded in relation to the land in dispute.

It is to be observed that the origin of the long possession that has been strenuously canvassed before this Court with force and passion is also Aina Adeokun family or Dada akin family. It is not open to the appellants to depart from their pleadings and pitch their title in immemorial origin. It must be borne in mind that where there is a claim for declaration of title to land, the age old and well settled principles governing the onus of proof and standard of proof have to be followed meticulously.

It cannot be too often repeated that in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu (1936) 2 WACA 336 at 337.

The pleadings having raised the issue of who the original owners of the title to the land were – whether Adeokun family or Ashade family, the appellants had a very heavy burden to discharge. The evidence led to discharge this burden had the hallmarks of deficiency. The dominance of Dada akin in the exercise of acts of ownership over land in the area paled Adeokun’s name and association into oblivion and gave the evidence that Adeokun family gave land to Kasunmu Aleshinloye the quality of incredibility. This is further emphasised by the evidence produced by the defence that by 1890 Dada akin was already locked in litigation with Ashade over ownership of some surrounding parcels of land in the area and the battles always ended in favour of Ashade. Therefore to describe the finding of the learned trial judge on the issue of possession from 1874 to 1925 as perverse is a total departure from the proper appreciation and correct assessment and evaluation of the evidence led on the issue.

It is the duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence or as put by Webber, C. J. Sierra Leone, and concurred in by Kindgon, C. J. Nigeria and Butler-Lloyd, J. in the celebrated cases of Kodilinye v. Mbanefo Odu 2 WACA 336 at 337;

“The onus lies on the plaintiff to satisfy the Court he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case.”

The defendants’ case may itself support the plaintiffs’ case and contain evidence on which the plaintiff is entitled to rely. In such a case, provided the evidence is credible and accepted by the judge during the assessment of the evidence adduced, the plaintiffs are entitled to the evaluation of such evidence in their favour so as to increase the strength of their case (see per Unsworth, FJ. in Akinola and Ors. v. Oluwoand Ors. (1962) All NLR. 224 at 227.

Learned counsel for the appellants contended with much force at his command, that the learned trial judge was in error in holding that the evidence by the plaintiffs’ witness was a maze of contradictions and unreliable. He also contended that the authority of Onubogu v. The State (1974) 9 SC. 1 is inapplicable to destroy the evidential value of the conflicting testimonies of the plaintiffs’ witnesses on the traditional history of the ownership of the land. He submitted that the rule or test in Kojo II v. Bonsie should have been used to resolve the conflict in the evidence given by the various witnesses called by the appellants. He conceded, however, that there were conflicts but was unable to agree that the conflicts amounted to contradictions. He argued that the test in Kojo II v. Bonsie is not limited in its application to conflicts between the evidence adduced by one side against the evidence adduced by the other side.

With the greatest respect to learned counsel for tile appellants, I do not think the proposed extension in the application of the test in Kojo II v. Bonsie was ever in the contemplation of Lord Denning and the Privy Council, the authors of the test. It was the conflict in the traditional history given by one side with the traditional history given by the other side, they had in mind. In his own words (see (1957) 1WLR. 1223 at 1226) Lord Denning said in clear and unambiguous terms:

“Witnesses of the utmost veracity may speak honestly but erroneously of what took place a hundred years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. This is how the native court approached the matter and their Lordships think they were right.”

This has received lucid interpretation from this Court in the case of Alade v. Awo (1975) 4 SC. 215 at 223

The High Court and the Court of Appeal were therefore justified in rejecting the submission of counsel on the issue. They refused to tread the path of error. Surely, it is elementary rule of law that where a party adduces two competing histories of their ownership in support of his claim, he has failed to make out the case he set out to make and his claim must be dismissed.

It is only where the conflict arises between the traditional history given by one side and the traditional history given by the other side that the test in Kojo II v. Bonsie is resorted to in the ascertainment of the true history. The conflict in the versions of the traditional histories given by the witnesses called by the appellants rather than strengthen, has, in my view, not only weakened but destroyed the case of the plaintiffs/appellants. The complaint of the appellants about the failure of the learned trial judge and the Court of Appeal to apply the test in Kojo II v. Bonsie to the conflicting traditional histories given in support of the appellants’ case is misconceived and totally without foundation.

Learned counsel for the appellants also complained that the Court of Appeal and the High Court were in error in failing to hold that the acts of ownership exercised by the plaintiffs/appellants which were positive, numerous and spread over the period from 1874 to 1965 warranted the inference that they were the owners and entitled to the declaration of title sought.

From the evidence accepted by the learned trial judge and the Court of Appeal, the possession of the Gbadamosi Mogaji family originated in the sale to them of the land by Dada Okin in 1925 and that of Alimotu Saka and Morinatu Saka originated in the sale to them of the land in dispute in 1949 when they paid 6 pounds out of the price of 12 pounds.10/ or 1962 when they completed the payment of the full amount. Both families have been unable to prove that Dada Okin and Dada Sogunro had any title to transfer. The respondents have on the other hand been able to prove that their title had a validly legal origin in Ashade family who were the original owners of the land. They have therefore been able to show a better title than the appellants.

It is my opinion that where the root of title is known and pleaded and not lost in antiquity and historical oblivion, the circumstances for any inference of title created by acts of ownership does not arise.

In Idudun v. Okamagba (1976) 9 & 10 Sc., the Court at pages 246-250 listed the 5 ways in which ownership may be proved. These are

(1) By traditional evidence

(2) by production of documents of title

(3) by proving acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner (Ekpo v. Ita 11 NLR. 68)

(4) by proving acts of long possession and enjoyment of the land.

These are really more of a weapon of defence rather than offence (by s. 145 Evidence Act possession raises a presumption of ownership although this presumption can be defeated). See also Abatan v. Winsalla SC/516/66 delivered on 26/6/70 unreported.

(5) by proof of possession of connected or adjacent land in circumstances rendering it probable that claimant is also owner of such adjacent land. (section 45 of Evidence Act)

Learned counsel citing Idudun case contended that the appellants adduced sufficient evidence to entitle them to a declaration of title on the basis of long possession. Long possession is more of a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass than of offence to establish a claim for a declaration of title and damages for trespass against the true owner. A claim for declaration of title is not founded on ownership by prescription under native law and custom. It should not be forgotten that the plaintiffs claim a declaration of title based on a grant under the native law and custom. Unless the origin of title is valid, the length of possession does ‘not ripn invalid title of a trespasser to valid ownership title.

See:

Thomas v. Holder 12WACA 78 at 80;

Jegede & Ors. v. Gbajamo & Ors. (1974) 10 SCc. 183 at 187;

Da Costa v. Ikomi (1968) 1 All NCR 394 at 398-399;

The complaint about the application of section 45 of the Evidence Act to declare the Ashade family is without merit. It is not unusual for a family to own land measuring a couple of miles in length and breadth. This was more prevalent in the distant past to which Ashade family belong.

It should be noted, however that the defendants never counter-claimed a declaration of title. The learned trial judge and the Court of Appeal have not granted a declaration of title to the defendants although they have justifiably declared on the evidence adduced by the parties that Ashade family were the original owners of the land in dispute.

On the contention that the learned trial judge and the Court of Appeal should have found for the appellants on the ground of long possession, I think i am right if I say that it is well settled by judicial authorities that long possession cannot found a claim of declaration of title, damages for trespass and injunction against the true owner of title to the land. The law is well settled and this Court has so declared in many cases coming before it recently that a trespasser in possession is only entitled to sue in trespass persons who are not the true owners of the land and that as against a trespasser possession attaches to title of ownership. See

David Fabunmi v. Abigail Agbe SC.57/1984 delivered on March 8, 1985

Aromire & Ors. v. Awoyemi (1972) 1 All NLR 101 at 112

Vincent Bello v. Magnus Eweka (1981) 1 SC. 101

Nwosu v Otunola (1974) 1 All NLR (Part 1) 533

Alhaji Adeshoye v. Siwoniku (1952) 14 WACA 86 at 87

Godwin Egwuh v. Duro Ogunkehin Sc. 329/66 of 28/2/69

Lyell v. Kennedy (1882) 20 Ch. D. 484

Asher v. Whitlock (1865) LR 1 QB 1 at 5

If he sues one who can show a better title, he cannot succeed.

In the case of Aromire and Ors. v. Awoyemi (1972) 1 All NLR 101, this Court observed and held at page 112:

“The plaintiff claimed that they were trespassers but assuming that they were indeed the plaintiff, in order to evict them, must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective.”

And in David Fabunmi v. Abigail Agbe SC.57/1984 of 8th March, 1985, this Court said, per Obaseki, JSC.

“The plaintiff cannot succeed by canvassing a title which itself was demonstrated to be defective The basis on which the Court of Appeal stood to reverse the findings of the trial judge and enter judgment in plaintiff’s favour and grant her declaration of title, damages for trespass and injunction cannot stand critical examination and having collapsed, the appeal is hereby allowed and the judgment of the trial judge dismissing the plaintiff’s claim in its entirety restored.”

The appellants’ title have been shown to be defective and as such the appellants’ appeal fails. The appellants throughout have urged this Court to depart from the concurrent findings of fact made by both the High Court and the Court of Appeal. There is no doubt that where circumstances warranting such a departure are shown to exist, this Court will readily depart from the findings which are shown to be erroneous. I, however, observe that the appellants have totally failed to show that the circumstances exist in the instant appeal.

Where there exist no circumstances warranting such a departure, the appeal must be dismissed. See:

Lokoyi v Olojo (1983) 8 Sc. 61 at 68-73

Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3 SC. 31 at 75

Ukpe 19 bodo and Others v. Iguasi Enerofia and Others (1980) 5-7 SC. 42 at 55

On the whole, the appeal by the appellants in the three consolidated suits fails and is hereby dismissed with costs to the respondents fixed at N300.00.

M. BELLO, J.S.C. (Presiding): I have had a preview of the judgment of my learned brother, Obaseki, J.S.C. For the reasons so comprehensively stated therein, I would also dismiss the appeal and affirm the decision of the Court of Appeal with N300 costs to the Respondents. I may only add that this Court has discretionary power and is competent to entertain a point of law raised for the first time before it but it may be emphasized that no point which has not been taken in the court below will be allowed to be raised for the first time before this Court except in special circumstances: Fadiora v. Gbadebo (1978) 3 S.C. 219 at 248 and Dweye v. Iyomahan (1983) 2 S.C.N.L.R. 135 at 138.The question of jurisdiction of a court of trial being so fundamental has been held to be one of the well recognized exceptions to the rule that points raised for the first time in an appeal court will not be entertained: Deborah v. Okonkwo (1982) II S.C. 74 at 94. New points which “involve substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of them” may also be allowed to be raised for the first time: Abinabina v. Enyimadu 12 W.A.C.A. 171 at 173 and Seismograph Service v. Eyuafe (1976) 9 & to S.C. 135 at 155.

In our Ruling of 30th April 1985, we did not allow learned counsel for the Appellants to argue the new points raised for the first time in this appeal because we were satisfied none of the new points fell within the foregoing rule of practice of this Court.

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Other Citation: (1985) LCN/2252(SC)