Princess Bilewu Oyewunmi & Anor. V. Amos Owoade Ogunesan (1990) LLJR-SC

Princess Bilewu Oyewunmi & Anor. V. Amos Owoade Ogunesan (1990)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

This appeal concerns land at Ogbomoso and raises the important issue of the customary law governing land ownership among the indegenes of Ogbomoso. The importance of this issue lies in the fact that the traditional Ruler of Ogbomoso who goes by the title of The Shoun of Ogbomoso figures prominently in this litigation and contends that under the Ogbomoso customary law, all lands except those already granted or transferred by himself or his predecessors in office are vested in him as Shoun to the exclusion of all other persons. He agreed with the contention of the respondents that there are five Ruling Houses each with vested right of producing a candidate for the office of Shoun in rotation but debunks and vehemently opposes the contentions of the respondent that each of these Ruling Houses own and controls large tracts of land since the 1st Shoun Ogunlola. His adherence to the concept of Shoun’s ownership of all lands (even though in trust for the people of Ogbomoso) and attempt to enforce his rights in accordance with that concept of Ogbomoso customary land tenure law naturally has brought him into conflict with those who hold the contrary view of Ogbomoso customary land tenure law. This appears to be the genesis of this case.

The respondent instituted these proceedings in the Oshogbo Judicial Division of the High Court of Justice, Oyo State of Nigeria on the 18th day of June, 1980 by a writ of summons endorsed with the following statement of claim. The plaintiffs’ claim are as follows below:

(a) The sum of #2,000.00 being damages for trespass which the defendant, her servant and/or agents have since the 7th day of June, 1980 been committing when the defendant, her servants and/or agents wrongly entered and destroyed plaintiffs’ properties on plaintiff’s piece or parcel of land which is in plaintiffs possession, situate, lying and being at slaughter slab area, Quarters Ogbomoso, Oyo State of Nigeria which said piece or parcel of land is particularly described and delineated and edged ‘RED’ on plan No.AB8272B attached to a Deed of Conveyance dated 2nd day of October, 1975 of the lands Registry at Ibadan, Oyo State of Nigeria.

The annual rental value of the said land is N100.00 (One hundred Naira).”

Subsequently, the 2nd appellant, on his application, was joined or added as 2nd defendant by the order of the High Court and the ground of his application appeared in paragraphs 1, 2, 3, and 4 of his affidavit in support of the motion which reads:

“(1) I am the Natural Ruler of Ogbomoso and the defendant is my niece;

(2) I am by tradition and custom of Ogbomoso the person in whom title to all Ogbomoso land is vested in trust for the people of Ogbomoso including the land in dispute;

(3) All land in Ogbomoso including the land in dispute is stool land and I am the only person entitled to (before the coming into force of the Land Use Act of 1978) make grants of land to any member of Ogbomoso community who requires land:

(4) In 1974, I had a parcel of land along the Ilorin Road surveyed and a plan thereof prepared, and from the land thus surveyed, I made a grant of a portion to the defendant in exercise of my right as Shoun of Ogbomoso.”

(7) In paragraphs 3, 4, 5, 6, 18, 19, 20, 21, 23, 24, 27, 28, 29 and 30 of the statement of claim, the plaintiff made claims inconsistent with my title to all land in Ogbomoso and in particular to the grant 1 made to the defendant.”

(8) The plaintiff also falsified the Native Law and Custom of Ogbomoso in land matters.”

After the joinder was ordered, pleadings were filed by the parties i.e. the plaintiff and each of the two defendants. The 1st defendant filed not only a statement of defence but also a counter-claim for:-

“(1) A declaration that the first defendant is the person entitled to a statutory right of occupancy on and over the land in dispute shown in Plan No. OD.4529A & B dated 21st December, 1979, made by Surveyor O. Bangbose and verged Red therein and marked “A”;

(2) The sum of N5,000.00 (five thousand Naira) being damages for trespass alleged herein;

(3) A perpetual injunction restraining the plaintiff, his servants and agents from entering the land in dispute or in any way permitting acts of trespass therein.”

At the close of pleadings, the issues joined were tried by Ademakinwa, J. At the conclusion of evidence and addresses of counsel on 7th February, 1983, he adjourned for judgment and on the 21st day of March, 1983, he delivered a well considered judgment in favour of the plaintiff. In the course of his judgment, the learned trial Judge said (dealing with the counter-claim). “The judgment in Ajao’s case has not, in my view, established the status of all land in Ogbomoso. Native Law and Customary Law derives its force to the extent that it reflects accepted usage in the community. (see Owonyin v. Omotosho (1961) All NLR.304 at p.309). And perhaps more importantly, the findings as to native law and custom in earlier cases are not precedents for subsequent cases (see Odunsi v. Ojora) (1961) All NLR. 283 at 287). Furthermore, judicial notice would only be taken of native law and custom and which is of such notoriety and frequently followed by the courts (see Abiodun v. Erinmilokun (1961) All NLR.294 at p.296). In the present ease, it would appear reasonable to say that native law and custom, which the 2nd defendant did not get to know of until he became the Shoun of Ogbomoso in October, 1973 could not be said to be of any notoriety at all. Similarly, it would not be said that the custom had been frequently followed. Indeed, my learned brothers, Sijuwade, J., in suit No. HOS/89/76 Prince Okanlawon & Ors. v. Gabriel Olayanju & Ors. (unreported) and Ibidapo-Obe, J., in suit No. HOS/104/76: Maria Bankole v. Alhaji Salami Bala & Ors. (unreported) have had cause severally to examine the claim that by native law and custom all land in Ogbomoso is vested in the Shoun in trust for the community but came to conclusion that such a claim is not supported by the facts of history in Ogbomoso. From the evidence adduced before me in this case. I cannot but come to the same conclusion. That being the case, I must hold and I so do, that the second defendant had no title to the land in dispute which he could validly pass on to the 1st defendant. As the saying goes ”Nemo dat quod non habet. Nobody gives what he does not have.” It follows therefore that the 1st defendant’s counter-claim for declaration that she is the person entitled to statutory right of occupancy in respect of the land in dispute based as it is on the non-existent title of the 2nd defendant must fail and it is hereby dismissed.”

On the plaintiffs claim, the learned trial Judge said:

“Be that as it may, there is still the need to examine the evidence adduced by the plaintiff in support of his claim for trespass. I must say in this respect that the traditional evidence adduced in support of the plaintiffs claim was not altogether satisfactory……It was therefore not shown how what was originally common property of Kumoye and other children of Jegioro came to be divided among only five sons of Kumoye, the fact that the descendants of the five sons of Kumoye came to be the five ruling houses of Ogbomoso notwithstanding. However, it is an established principle of law that where the traditional evidence is inconclusive, the plaintiff may still fall back on acts of (ownership and) possession exercised on the land (see Ekpo v. Ita 1 NLR.67; Idundun v. Okumagba (1976) 1 NMLR. 200 at p.210). One fact that cannot be ignored or denied is that the Odunaro/Layode family had-for a considerable length of time exercised in respect of land in Sabo area of Ogbomoso, of which the land in dispute forms part, acts of ownership which, in my view, are positive and numerous enough to warrant a presumption of ownership being invoked in their favour…….

It is the plaintiff’s Case that he bought the land from the Odunaro/Layode family under native law and custom in 1959 and obtained a purchase receipt (Exhibit B) from the family. It shall be mentioned that a sale of land evidenced by receipt is not a transaction ‘ known to native law and custom (see Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222). The requirements for the transfer of an absolute title in land under native law and custom are that the grant or sale must have been concluded in the presence of persons who must also witness the handing over of the land (see Taiwo v. Ogunsanya (1967) NMLR.375 at page 379). The evidence adduced by the plaintiff has, in my view, established the required ingredients of a valid sale under native law and custom and I must hold that the title to the land in dispute has passed to him under native law and custom since 1959……..

The plaintiff in this case has proved that his title to the land in dispute is much better than that of the 1st defendant. He is therefore, in my judgment, entitled to succeed in his claim for trespass. He is also in the circumstances entitled to the order of injunction sought to protect his interest in the land. By the same token, the first defendant’s claim for trespass and injunction must fail and they are hereby dismissed……..

In the result, the plaintiff’s claims succeed and he is hereby awarded against the defendants the sum of N250.00 being general damages for trespass committed on the land in dispute. The defendants, their servants and/or agents are hereby restrained from further acts of trespass on the land in dispute. The 1st defendant’s counter-claim is hereby dismissed.”

The defendants were dissatisfied with the judgment and so they appealed to the Court of Appeal. Five grounds of appeal were set out in their notice of appeal as follows:-

(1) The learned trial Judge erred in law in not giving effect to (i.e. in actual fact overruling) the binding decision of the Supreme Court in Ajao v. Ikolaba (1972) 2 All NL.R. (Part 2) 46 which (i) decided in rem the status of Ogbomoso land;

(ii) restated the principles of Ogbomosho Land Tenure; and

(iii) is otherwise applicable in the case.

(2) The learned trial Judge erred in law in granting the plaintiff’s claims when the plaintiff failed to establish the foundation of his title, i.e. that Kumoye during his lifetime divided all Ogbomoso land among his five children.

Particulars

Available evidence was that Kumoye had many brothers living at the time and that a distribution of Oghomoso land among his children in the circumstances was contrary to all accepted principle of customary law and could not and did not take place:

(3) The learned trial Judge erred in law in giving judgment for the plaintiff when the plaintiff did not establish that the land in dispute was that which he claimed was granted to him by means of exhibit ‘B’ in the case;

(4) The learned trial Judge erred in law in his approach to the documents of grant tendered in the case by the plaintiff, in that he failed to appreciate that the document did not establish the title of Layode’s family to the land in dispute or to any other land, as pleaded or at all.

Particulars

(i) The recitals in the documents conflict inter se and with the root of title pleaded by the plaintiff:

(ii) The second defendant offered reasonable and credible evidence of the transactions affecting them;

(5) The learned trial Judge erred in law in not deciding the issues raised in the counter-claim.

The appeal came up for hearing before the Court of Appeal holden at Ibadan (coram, Uche-Omo, Omololu-Thomas and Sulu-Gambari, J.J.C.A. After hearing counsel in oral argument in expatiation of the submissions in the briefs of argument filed by the parties, the court gave a well considered judgment dismissing unanimously, the appeal. The lead judgment concurred in by Omololu-Thomas, J.C.A. and Sulu-Gambari, J.C.A., was delivered by the learned Justice of the Court of Appeal, Uche-Omo, J.C.A. In the judgment, the learned Justice spared no effort to examine every issue contested before the Court of Appeal. He was meticulous in the treatment of every issue and lucid in the decision on every issue and in his closing paragraphs said:

“What is more the learned trial Judge carefully considered the competing titles of the parties and found for the respondent. He also made specific findings on the issue of trespass against the 1st appellant. The only course open to the trial court therefore was to dismiss the counter-claim.

In conclusion, all the grounds urged in the appellant’s brief and argued before us here having failed, this appeal is hereby dismissed with costs in favour of the respondent assessed at N300.00 to be paid by the appellants.”

The defendants were still dissatisfied and so appealed against the decision of the Court of Appeal to the Supreme Court. The grounds of appeal, the arguments and submission advanced by counsel on behalf of the parties both in their briefs of argument and orally will now be considered for this Judgment. Six grounds of appeal were set out in the notice of appeal filed by the defendants/appellants and without their particulars, they read as follows:-

(1) The Court of Appeal erred in law in refusing to apply to the appeal the legal effect of the Supreme Court judgment in Samuel Ajao v. M.O. Ikolaba (1972) 1 All NLR. (Part 2) 46 and to come to a conclusion on it.

Particular- Omitted

(2) The Court of Appeal misdirected itself in law when it held as follows:

“In the light of these statements of the law by the learned Justice of the Supreme Court, the case of Odofin v. Ayoola at its highest can be said to have decided that where traditional evidence is totally rejected, evidence of acts of ownership cannot be relied upon to support a claim for title, but where it is merely inconclusive the party claiming title can rely on positive acts of ownership over a sufficiently long time per Ekpo v. Ita to establish his claim and by reason of this misdirection refused to allow the appeals of the appellants and to grant the first appellant’s counter-claim.

Particulars – Omitted

(3) The Court of Appeal misdirected itself in law when it held as follows:

‘While it is true therefore that the Supreme Court agreed with the parties in Ajao v. Ikolaba that all the lands in Ogbomoso belongs to the Shoun of Ogbomoso, the head of Ogbomoso who holds all the land in trust for his people………. vide Giwa (Abiodun v. Erinmilokun (1961) All NLR. 290 (297).

Particulars- Omitted

(4) The Court of Appeal misdirected itself in law when it held: F

“In arguing ground 2, learned counsel for the appellants correctly submitted that the plaintiffs/respondent’s title was anchored on that of the Layode (Odunaro) chieftaincy families……..It was therefore not shown how what was originally a common property of Kumoye and other children of Jegioro came to be divided only among five sons of Kumoye …. Because of this, he was not satisfied with the plaintiffs traditional evidence He therefore proceeded to consider whether title had otherwise been established by the plaintiff/respondent.

(ii) It may well be that there was a time in the distant past when Shouns of Ogbomoso exercised rightly or wrongly such powers over Ogbomoso land …. If the 2nd defendant/appellant wants to change the present custom, he will be well advised that the best course is not litigation with his subjects, but by common concensus of his people.”

Particulars – Omitted:

(5) The Court of Appeal misdirected itself in law when it failed to allow the appellant’s appeal on the ground that the respondent failed to prove that the land in dispute is the same land over which he asserts title, after holding as follows:

‘This (i.e. the complaint in ground 3) is based on the correct observation that whilst the 1959 memorandum of sale, Exhibit B tendered by the respondent shows the land sold to him to measure 100ft. x 100 ft., the plan filed by him in support of his case – Exhibit A, which agrees with the plan attached to his 1975 conveyance – Exhibit C gives the measurement of the land sold to him to be 125ft. 5 inches x 61ft. 4in. x 106ft. 5ins. x 76ft. 9ins. Because of this ……..

Particulars-Omitted

(6) The Court of Appeal misdirected itself in law when it held as follows:-

‘Appellant’s learned counsel only dealt with and faulted seven out of eleven documents with which Layode’s family are directly connected…….I have dealt with the documents criticized so as to show that not all of them are null and void and that some of them therefore support the claims of Odunaro/Layode family to parcels of land conveyed.

Although the trial Judge did not specifically consider the objections made to these documents raised by the appellant’s counsel in his address, he stated his observation, findings and conclusions as to their effect as follows:

Particulars – Omitted

Arising from the grounds of appeal, four issues for determination in the appeal were formulated by the appellant in their brief as follows:

“(1) was the Court of Appeal (as also the High Court) not bound by the Supreme Court decision in Ajao v. Ikolaba (1972) 1 All NLR (Part 2) 46 on Ogbomoso customary law relating to land tenure and does refusal of the courts to follow and give effect to the principles laid down therein (and in the Evidence Act) in a matter on all fours, not vitiate the decision of the Court of Appeal (2) Where the incidents of a customary land tenure have been established by evidence in a suit supported by a decision of the Supreme Court, is the Court of Appeal entitled to shy away from giving effect to that custom, without evidence that the custom has been changed by the community – in other words, can the court indirectly change the custom

(3) Where the plaintiff fails to prove the radical title to land pleaded, can he in the same breath shift his ground and rely on acts of ownership which should have derived from the radical title, as proof to title to the land Would it not be fatal to his case and title if he adduced oral and documentary evidence of conflicting histories of his ownership

(4) In view of the decision of the Supreme Court in Odofin v. Ayoola (1984) 11 SC.72 to the effect that where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession which should have derived from that root – was the Court of Appeal right in not giving effect to that decision on the views which it expressed at pages 212 to 219 of the record

(5) In an action for trespass which raises the issue of title to land, is the plaintiff not bound to establish with clarity and precision the area of land of which he claims to be beneficial owner by purchase and should the Court of Appeal not have dismissed his claim for trespass and injunction after holding that the area of land on which he complains of trespass is at variance with that which he claimed to have purchased

These are issues the resolution of which depends on the findings of fact made by the High Court and affirmed by the Court of Appeal.

The respondent however, formulated two questions for determination in this appeal as follows:

“(1) whether by the customary law prevailing in Ogbomoso all land in that area of Oyo State belongs to the Shoun of Ogbomoso so that anyone claiming to sell land can only validly do so by tracing his title directly or indirectly to the Shoun.

(2) was the High Court and the Court of Appeal correct in relying on evidence of acts of possession to establish the title or the right to possession of the plaintiff

The issues formulated in the appellants brief and the respondent’s brief do arise but the issues formulated in the respondents brief are more germane and their resolution will easily dispose of this appeal.

Taking the issues formulated in the appellants brief one by one, issue No.1 charges the High Court and the Court of Appeal with a violation of stare decisis – the doctrine of precedent – on which the development of law in common law jurisdiction is firmly entrenched. Very many questions radiate from this apparently direct and simple issue. The first is whether the two courts below found the case of Ajao v. Ikolaba (1972) 1 All NLR. (Part 2).46 on all fours with the instant appeal. The second is whether if the two courts found the instant appeal on all fours with the case of Ajao v. Ikolaba (supra) they refused to follow it. The third question is whether they did not find the instant appeal on all fours with Ajao v. Ikolaba (supra). The 4th question is whether the customary law governing land ownership in Ogbomoso was ever in issue in Ajao v. Ikolaba. The 5th is whether the two courts below found that the customary law governing land ownership in Ogbomosho was in issue in Ajao v. Ikolaba (supra). The 6th question is whether the two courts below properly distinguished the instant appeal from Ajao v. Ikolaba (supra).

The 2nd issue or Issue No.2 formulated in the appellants’ brief poses a hypothetical question and no indication that the question arises from the facts of this case has been given. If it had been an issue in this appeal, the ready answer would have been in the negative, i.e. a Court of Appeal is not entitled to shy away from giving effect to ‘custom’ established before it or in proceedings from the High Court in an appeal before it.

Issue No.2 speaks of shying away while Issue No.1 talks of refusal to follow Ajao v. Ikolaba (supra).

Issue No.3 poses another hypothetical question. It could easily find suitable premises in the instant appeal if there is evidence that the respondent departed from the case set out in the pleadings in his testimony. It is settled rule of law in any court that parties are normally not allowed to shift from the case set out in the pleadings to another case not set out in the pleadings. Issue No.4 complains that the Court of Appeal did not give effect to or apply the decision in Odofin v. Ayoola (1984) 11 SC.72 on non-existent root of title. If the root of time is non-existent it is non-existent and no act of possession can provide evidence of non-existent title other than its non-existence.

Issue No.5 also poses a hypothetical question. The question can be easily properly premised on the facts of this case. The short answer to the question is that if title is in issue in an action for trespass, the area of land to which title is claimed is also in issue and has to be established as claimed and or pleaded.

Although the issues formulated in the appellants’ brief are five as against two in the respondent’s brief, the two issues in the respondent’s brief focus attention on the real questions for determination in this appeal.

Issue No.1 shows that there is real contention as to whether all lands in Ogbomoso belong to the Shoun and title to any land can only be acquired directly or indirectly from him. In other words, can title to some land in Ogbomoso be acquired from persons or family other than the Shoun according to Ogbomoso customary law

Issue No.2 poses the question of the correctness of the Court of Appeal in relying on the evidence of acts of possession to establish title or right to possession of the plaintiff

Proof of Customary Law

A very great issue has been made in this appeal of the customary law governing the ownership and transfer of title to land in Ogbomosho. The great divide is between the appellants (who contends that all land in Ogbomoso is stool land in the sense that the Shoun as the traditional Ruler holds the land for the use and benefit of his people the Ogbomoso community) and the respondent (who contends that not all Ogbomoso land is stool land and that each of the five Ruling Houses own parcels of land title to which they can transfer and have been transferring to purchasers without let or hindrance. It is not the contention of the respondent that there are no stool lands in Ogbomoso. His contention merely limits the area of stool land in Ogbomoso to a portion of Ogbomoso land. This contention did not arise in the case of Ajao v. Ikolaba (1972) I All NLR (Part 2) p.46 which originated in the customary law. Since then several cases have been instituted in the High Court as a Court of first instance and they support the contention of the present respondent. In the High Court, unlike the customary Court, or area court, proof of customary law in any particular case is governed by section 14 of the Evidence Act, Cap.62 Laws of the Federation 1958 or the similar provision in the Evidence Law of any State in the Federation of Nigeria.

That section reads:

“1. A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall be upon the person alleging its existence.

2. A custom may be judicially noticed by the court if it had been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the person or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
3. Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them; provided that in the case of any custom relied upon in any judicial proceeding. it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice equity and good conscience’”

Judicial notice is therefore an alternative method of proof of customary law. However, the provision of subsection (I)(c) of section 73 of the Evidence Act enjoins the court to take judicial notice of the following facts to wit:

“all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in Nigeria or the Supreme Court or former Supreme Court of Nigeria or by the High Court of the Region (now State) and all customs which have been duly certified to and recorded in any such court.”

Unlike statute laws, customary laws in Nigeria have not been codified and their proof in the superior courts is mandatory. Before continuing the consideration of the issues in this appeal, a brief statement reflecting the material facts pleaded and established before the courts below in this case is necessary. In this regard, I shall refer to the amended statement of claim.

The plaintiff/respondent has not claimed a declaration of title to the land in dispute. The claim is for damages for trespass. Issues as to title have been raised by the defendants. It is first defendant/appellant who proceeded to file a counter-claim claiming declaration of entitlement to a statutory right of occupancy in respect of the land in dispute. Of particular relevance to my consideration of the issues are paragraphs 3, 5. 5A. 7, 9, 11, 13, 14, 15. 16. 18, 19, 20, 22, 23, 24,25, 26, 27 and 28 of the amended statement of claim which read as follows:

“3. The land in dispute is part of the land formerly belonging absolutely under native law and custom to Layode family lying and situate at Sabo, Ogbomoso and forming part of a large tract of Layode’s family land at Ogbomoso held from time immemorial:

5. The land in dispute was in or about 1959 sold absolutely under native law and custom to the plaintiff by the Layode family for the sum of One hundred and ten Naira (N110.00).

5A. Thereafter, by a paper writing, a memorandum of sale and receipt of the purchase price of the land dated 11th day of December, 1959 was made in favour of the plaintiff;

7. Immediately after the sale, the plaintiff was put in possession and the plaintiff went into immediate possession and has been exercising absolute right of ownership on the said land since 1959 without hindrance, obstruction or challenge from anyone.
8. In 1974, the Ogbomoso local government trespassed on the land by attempting to construct an incinerator on the land and on being challenged by the plaintiff the Ogbomoso Local government had the incinerator removed.
9. By a Deed of Conveyance dated the 2nd day of October, 1975 made between (1) Ladoye Adisa Layode (Magaji) (2) Emmanuel Nkanlola Layode (3) Lasisi Okunlola Layode and (4) Raimi Ladipo (for themselves and on behalf of the Layode chieftaincy family and the plaintiff, registered as No.48 at page 48 in volume 1827 in the Register of Deeds kept at the Lands Registry at Ibadan, Oyo State of Nigeria, the land in dispute was conveyed in fee simple absolute by the Layode family to the plaintiff.
10. Soon after depositing the stones and sand on the said land, the Shoun of Ogbomoso, His Highness Oba Jimo Oladunni Oyewunmi Ajagungbade III invited the plaintiff and demanded of him his document of title to the said land;
11. The Shoun claimed that the plaintiff’s Deed of Conveyance was invalid alleging that only the Shoun of Ogbomoso could dispose of land in Ogbomoso and advised the plaintiff to collect his money from the Layode’s family.
12. The Shoun requested the plaintiff to repurchase the said land from him which request the plaintiff refused to comply with;
13. On or about the 7th day of June, 1980, the plaintiff found that the defendants’ agents and or servants had demolished the wooden fence, removed the plaintiff’s survey pillars, stones and sand, and were clearing and digging a foundation on the land in dispute.
14. The land in dispute belonged to the Layode family from time immemorial and is not part of a stool land or part of Igbo Igbale or Shoun Palace land.
15. The plaintiff shall contend at the trial that stool land in Ogbomoso are public or community land and are vested in the Shoun of Ogbomoso as a trustee to be granted for the use or benefit of the Ogbomoso community by the Shoun and the Mogajis of all the five ruling houses. The plaintiff shall rely on various documents and Deeds issued on stool lands, especially the Deed of Conveyance executed in favour of the Ogbomoso local councilor government in respect of ‘Igbo Igbale’ land.
16. That each of the five (5) Ruling Houses of the Shoun of Ogbomoso chieftaincy has its separate and distinct vast tract of land which is sold or granted by the respective Ruling Houses without interference from other Ruling Houses or the reigning Shoun. The plaintiff shall rely on various Deeds of Conveyances referred to hereinafter.
17. The land in dispute originally formed part of the land originally owned by the first Shoun of Ogbomoso named Shoun Ogunlola under native law and custom.

(i) Shoun Ogunlola begat Jegioro

(ii) Jegioro begat Kumoye

(iii) Kumoye begat (5) children namely:-

(a) Toyeje

(b) Oluwusi

(c) Baiyewuwon

(d) Bolanta

(e) Odunaro

23. Kumoye, during his lifetime and in his capacity as Shoun of Ogbomoso, divided under native law and custom the Shoun’s family land amongst his five children, granting each of them distinct and separate parcels of land in Ogbomoso.
24. The five (5) children of Kumoye presently make up the five (5) Ruling House families of the Shoun of Ogbomoso chieftaincy family and are variously named:
25. Odunaro (Layode)
26. Bolanta (Elepo)
27. Oluwusi (Gbagun)
28. Baiyewuwon (Laoye)
29. Toyeje (Aburumaku)

The facts pleaded by the plaintiff/respondent were not all admitted by the defendants in their statement of defence. Of particular relevance also are paragraphs 6, 7, 8, 10, 14, 15, 17 and 20 of the amended statement of defence and counter-claim of the 1st defendant/appellant. These paragraphs read:

“6. With reference to paragraph 19 of the statement of claim. The first defendant admits only that all land in Ogbomoso is stool land and is vested in the Shoun of Ogbomosho who holds the land in trust for the community. The first defendant denies that the Mogajis who are only agents of the Shoun in procedures relating to the grant of land to members of Ogbomoso community, have any rights to land in Ogbomoso.

The use of the word “admits” in this paragraph is misleading in view of the facts pleaded in paragraph 19 of the statement of claim. It was never pleaded that “all lands ill Ogbomoso is stool land vested in the Shoun of Ogbomoso (italics mine)

7. Specifically, the Layode family (alias Odunaro family) has no right, interest or title in land in Ogbomoso as stated in paragraphs 29 and 30 of the statement of claim or at all and accordingly, the alleged transactions referred to in paragraphs 29 and 30 of the statement of claim are contrary to Ogbomoso customary laws.
8. The first defendant avers that according to the customary law of Ogbomoso, all land in Ogbomoso is stool land vested in the reigning Shoun who holds the same in trust the Ogbomosho community.
9. The Shoun of Ogbomoso is in sole control of all Ogbomoso land and has the sole right (to the exclusion of all others) of making grants of portions of land in Ogbomoso to individual members of the community.
10. In exercise of his customary rights over Ogbomoso land as the reigning Shoun of Ogbomoso, the second defendant, the uncle of the first defendant, made a grant of the land in dispute (free of charge) to the first defendant under customary law in November, 1974 and thereafter by a paper writing under his hand dated 19th November, 1974 made a memorial of the same.
11. Upon the said grant, the first defendant went into possession performing and exercising maximum right of ownership and possession over the land in dispute, which is in the urban area of Ogbomoso and has remained in possession to this day.

]4. All vacant land in Ogbomoso (Sabo and elsewhere) and all land which under Ogbomoso customary law had reverted to the Shoun could be dealt with as stated in paragraph 11 hereof by the Shoun.

20. Upon the grant of the land in dispute as shown in plan No. OB4529A & B (only the portion verged RED and marked A is in dispute) by the 2nd defendant to the first defendant, the first defendant became seized of the land beneficially, under Ogbomoso customary law to this day and on the coming into force of the Land Use Act was the person in whom the right of occupancy resided.
21. The plaintiff since 1979 has persistently trespassed into the land in dispute depositing ston-es and sand thereon trying to build a fence on the land, disturbing the 1st defendant’s agents, servants and workmen on the land and generally setting up claims inconsistent with the first defendant’s title, rights and interest in and over the land.” The facts pleaded in paragraphs 6, 7, 8, 10, 11, 12 and 14 of the first defendant’s amended statements of defence and counter-claim were also pleaded in paragraphs 6, 7, 8, 10, 11, 12 and 14 of the 2nd defendant’s amended statement of defence to emphasise their importance to the defence. In addition, the 2nd defendant in his amended statement of defence pleaded in paragraphs 15, 16, 17, 19, 20 and 21 as follows:

“15. It is also the customary law of Ogbomoso that any person to whom land has been granted by one Shoun cannot be expropriated by a Shoun’s successor in office.

16. The second defendant avers that Ogbomoso customary law of land tenure has been recognised and acknowledged by the courts of this country and will rely on Appeal No. SC.274/1967 Ajao v. Ikolaba decided by the Supreme Court of Nigeria on 5th May, 1972.
17. In 1974, on becoming the Shoun of Ogbomoso, the second defendant commissioned a survey of a parcel of land at Sabo along Ilorin Road, Ogbomoso. The survey was made by O. Bamgbose,

Esquire, Licensed Surveyor who produced Plan No.OB.1205 dated 31st August, 1974 and the Surveyor-General issued a receipt No. l09 dated 2nd November, 1974 for N200.00 for payment made to him for the survey.

The 2nd defendant and his predecessors in office have made absolute and limited grants of land in the area of the land in dispute and other parts of Ogbomoso in exercise of their customary rights and traditional rights over every inch of land in Ogbomoso as herein before stated and in proof, the second defendant will rely on any or all of the under-mentioned papers and documents, that is to say-

i.

ii.

iii.

iv.

v.

vi.

vii.

viii.

ix.

20. With further reference to paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29 and 30 of the statement of claim, the second defendant avers that Ogbomoso land which was owned and controlled by the first Shoun of Ogbomoso was never partitioned nor was it distributed among the descendants of the said Shoun, but was held by successive Shouns in trust for the community as aforesaid.
21. One result of the averment in paragraph 20 hereof is that the office of Shoun is held in rotation by the five chieftaincy families of Ogbomoso.

The pleadings therefore projected two main issues which pose the questions:

(1) Whether the Shoun is entitled under Ogbmoso customary law to all vacant lands in Ogbomoso and vested with power to alienate them

(2) Whether all land in Ogbomoso is stool land which only the Shoun of Ogbomoso can alienate.

The learned trial Judge, Ademakinwa, J., considered these issues and expressed the following opinions and findings:

“I believe the determination of the validity of the 2nd defendant’s contention should be made first before any of the other issues raised herein, since if it is established that all lands in Og bomoso are by native law and custom vested in the 2nd defendant then it would follow that the Layode family would have no title to pass onto the plaintiff and it may be necessary to go much further into the matter.

It is a cardinal rule of the law of evidence that native law and custom is a question of fact to be proved by the party asserting it. (See Giwa Abiodun v. Erinmilokun (1961) All NLR. 294). Although the second defendant was very categorical in his assertion that all lands in Ogbomoso are by custom vested in him as the Shoun and that no family owns land in Ogbomoso, his evidence was in essence contradicted by the 2nd d.w. Alhaji Mustafa Buari, who, under cross-examination, disclosed that his own family land is at Sene village – about 8 kilometres from Ogbomoso township and that it was only his family that can grant land to any body on the area …

It is remarkable that on a crucial point as this, the second defendant could not get any of his chiefs to testify for him as to the existence of such a custom …….

I do not believe that the custom claimed by the 2nd defendant could, on the basis of two or three documents, be said to have been sufficiently tested to be accorded recognition by the court.

In contradiction of the 2nd defendant’s contention as to the custom regarding land in Ogbomoso, the plaintiff apart from oral evidence of himself and his witnesses, has tendered the true copies of fourteen (14) Deeds of Conveyance (Exhibits D-D3, D5-D7, E-E1, F, G, J, K and N some dating back to 1958 to prove that the plaintiffs vendors, the Odunaro Layode Ruling House, as well as the defendant’s Ruling House and other families in Ogbomoso have been selling lands in Ogbomoso as their respective family property significantly Exhibits ‘E’ and ‘E I’ show that the 2nd defendant when he was still a Prince had in 1966 and 1969 respectively bought land from the plaintiffs vendors. Similarly, Exhibit F shows that the same 2nd defendant, before he became the Shoun bought land from his own family, the Gbagun or Lobanika family in 1971. He had however attempted to explain off the transactions by saying that he was then resident in Jos and was not then familiar with the custom he is now asserting. I must say that I find this explanation hardly credible. That notwithstanding, the conclusion appears inescapable that a custom that was so recondite that the 2nd defendant as a future traditional ruler and at the same time a successful businessman did not get to know about it to the extent that he invested his money in the purchase of land in his home town on three different occasions could hardly be said to be generally accepted in the community.”

Furthermore, even if the 2nd defendant could explain off the transactions covered during the period he was a businessman in Jos, it would appear that such an explanation would not avail him as regards the transactions in land which have taken place since he became the Shoun of Ogbomoso as exemplified by Exhibit D4 and H .

“Of particular note is Exhibit ‘K’ which relates to the Deed of Conveyance dated 31st day of December, 1958 by which the Odunaro Layode family granted land to the late Chief S.L. Akintala, a legal practitioner and former Premier of Western Region of Nigeria. Certainly if the title of the Odunaro Layode family to the parcels of land covered by the above mentioned Exhibits was not generally recognised in Ogbomoso, a person of the calibre of the late Chief S.L. Akintola would not have patronised the family and of course the defendants in the present case would have been able to show instances where the family title has been successfully challenged. I am therefore satisfied that the Odunaro Layode family was in possession of the parcels of land covered by the above-mentioned Exhibits. There is evidence which I accept that the parcels of land covered by the above-mentioned Exhibits are adjoining to the land in dispute. It is the presumption of law that acts of possession exercised in respect of an area may be evidence of ownership in respect of adjoining land (see section 45 of the Evidence Act; Okechukwu and Others v. Okafor and Others (1961) All NLR. 685). I would therefore hold on the foregoing principle that the land now in dispute belongs to the Odunaro Layode family before it was sold to the plaintiff.

The above findings and conclusions and judgment were affirmed by the Court of Appeal.

B In this court, learned counsel for the appellant concentrated his criticism of the judgment of the court below on two areas, viz;

(1) where the Court of Appeal failed to uphold his submission that the case of Samuel Ajao v. Ikolaba (1972) 1 All NLR. (Part 2) 46 settled the customary law governing the acquisition of title to land and

(2) the discrepancy in the size of the land claimed by the respondent in his statement of claim and the dimensions stated in the purchase receipt Exhibit B, and the dimensions stated in the plan attached to the Deed of Conveyance Exhibit C.

Learned counsel for the respondent in reply submitted that the generality of the decisions of the superior court support the contention of the respondent that it is not the correct state of the customary law of land tenure of Ogbomoso to state that the reigning Shoun is in sole control of all Ogbomoso land and has the sole right (to the exclusion of all others) of making grants of portions of land in Ogbomoso to individual members of the community. He further contended that it is also not correct to say that under Ogbomoso customary law all vacant land in Ogbomoso (in Sabo and elsewhere) are under the control of the Shoun to be dealt with as the Shoun wishes. It is also not correct to say that the Shoun has the sole right of making grants of portions of all Ogbomoso land to purchasers, lessees or transferees. Ajao v. Ikolaba (supra) correctly states the law in respect of stool property only. In Ajao v. Ikolaba (supra), the customary law applicable to the land in dispute was not in issue. This is clear from page 47 of the report which reads:

“The facts are not in dispute. Both sides are agreed that all land in Ogbomoso belongs to the Shoun of Ogbomoso the head chief of Ogbomoso who holds the land in trust for his people. He has under him a few senior chiefs occupying different parts of Ogbomoso whom in the olden days he put in charge of different areas for the benefit of Ogbomoso. In other words, it was made easy for the people to erect dwelling houses or compounds; anyone who wanted land to build on would approach anyone of these senior chiefs where the land is situated; he would allot portion of the land in his care to him, in the name of the Shoun. The evidence which is not in dispute but rather agreed upon, is that about 120 years ago, the ancestor of the defendant (3rd or 4th ancestor) approached the ancestor of the plaintiff who was the senior chief in his area, for a portion of land and land was allotted to him. He built on a portion and left the portion at the back of his building undeveloped. This undeveloped area which is his backyard is the land now in dispute: The plaintiff, a descendant of the senior chief known as Chief Ikolaba now claims the portion undeveloped and sold it to another who attempted to build on it but was resisted by the defendant as land allotted to his great ancestor over 120 years ago. The plaintiff thereupon brought an action against him in Ogbomoso Grade CI customary court claiming declaration of ownership and title to the land.”

He lost in the customary court. His appeal to the Magistrate Court was dismissed. From there, he appealed to the High Court and lost. From the High Court, he appealed to the Western State Court of Appeal and won. The defendant being dissatisfied then appealed to the Supreme Court and won.

Commenting on the rights and interests of Chief Ikolaba, the Supreme Court, per Sowemimo, J.S.C. (as he then was) said:

“The evidence of Oyerinde (plaintiff’s fourth witness) who is the Otun of the Shoun of Ogbomoso is clear on the point. He is the President of Ogbomoso Grade ‘B’ I Customary Court. He gave evidence for the plaintiff/respondent. It was the custom for anyone who wanted land to build, according to the witness, to consult Chief Ikolaba who would take the request to the Shoun. He himself got land that way. With the approval of the Shoun, Chief [kolaba would make the grant. The Shoun and his chiefs would later visit the land. It is difficult to see in the circumstances how Chief Ikolaba family could claim to be owner or trustee of the land so given……..

Undoubtedly, the position of Chief Ikolaba and such senior chiefs who were authorised to make grants is no more than that of an agent. The concept of land tenure in native law and custom is clear. Land belongs to all members of the community or village where everyone has a right. The head chief holds all land in trust for the community or the people. He gives portion of the land to

a deserving member of the community who asks for it. In a loose sense, he is called the owner as he has control over the whole land. See the case of Kuma v. Kuma 5 W.A.C.A. p.8. Also Kai Tongi v. Kalil 14 W.A.C.A. 331 Oshodi v. Dakolo and Others (1930) AC. 667 at 668. Adeyinka Oyekan v. Adele 14 W.A.C.A. 209 at p.214 ……

The concept of ownership by the senior chief who acts as the representative of the head chief is unknown to our customary law. In the instant case, therefore, Chief Ikolaba and his family has no scintilla of right to the land in dispute. If the land in dispute for any of the reasons we have enunciated above should revert, the land goes back to the Shoun of Ogbomoso for re-allocation. As this is the only question in this appeal, it disposes of the matter before us.”

I have set out the facts, the comments and decision of the Supreme Court above in detail so as to elicit and project the real question for determination before the Supreme Court. Chief Ikolaba was an agent of the Shoun in making a grant of the land in dispute to the great ancestor of the appellant but the descendants of Ikolaba believed that he was owner of the land and proceeded to claim a declaration of ownership or title to the land. The binding force of this authority is determined by the only question for determination in the appeal which was deliberated upon. The authority of the Shoun of Ogbomoso to make a grant of the land in dispute was never in issue neither was all the land in Ogbomoso the subject-matter of the claim. The value of this case as authority in support of the contention of the appellant is therefore limited in scope and created avenues for the courts below to distinguish it from the instant appeal.

What is the evidence against the appellants’ contention It is to be found in the declarations in Exhibits D to D3, D5 to D7, E to E1, F, G, H, J, K and M, N. The statement of claim concedes that the Shoun has control of C stool land and has the sole right in association with the Mogajis of the Ruling Houses of making grants of parcels of stool land to members of the community. The contention of the respondent therefore, is that not all land in Ogbomoso is stool land and the land falling outside the area of stool land is owned by persons and families other than the Shoun. This is what the above exhibits, admitted in evidence, have tended to show and clearly established. The 2nd appellant (the Shoun) featured as a party to the transaction in Exhibits D4 and H since he became the Shoun of Ogbomoso.

Since traditional rulers including the 2nd appellant, are the repository of the custom of their people or communities, the evidential value of these instruments is enormous and I would say fatal to the contention of the appellants. Under our law, customary law is a question of fact (see Taiwo v. Dosunmu (1966) NMLR 94 to be proved by evidence. (See Otogbolu v. Okeluwa (1981) 6-7 SC. 99 or judicial notice if it has been established as required by section 14(2) and section 73 Evidence Act or Law as the case may be in decisions of the superior courts of law. Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.

The main thrust of the respondent’s documentary evidence Exhibits D to N is to establish before the court that not all land in Ogbomoso is stool land and that the Shoun himself, the 2nd appellant and his predecessor are not only aware of it but have actively demonstrated this by joining others in making grants of land in Ogbomoso. The 2nd appellant has been shown to have taken conveyance of title of land in Ogbomoso from persons other than the Shoun both before and after his installation as the Shoun. Most importantly, Exhibit D4 provides an eloquent testimony. It is a Deed of Grant made between members of Laoye and Aburumaku sections of Shoun of Ogbomoso family and the Government of Oyo State in respect of about 12.5 acres of land for a stadium in Ogbomoso.

The names of the grantors are:-

(1) Kabiyesi Oba Jimoh Oladunni Oyewunmi Ajagungbade III the Shoun of Ogbomoso:

(2) Alhaji Oladipupo Akorede Laoye (Mogaji of Laoye section of Shoun of Ogbomoso) family and

(3) Gabriel Olayanju (Mogaji of Aburumaku section of Shoun of Ogbomoso family) (as head of Shoun of Ogbomoso family and Mogajis of the Ruling Houses and for themselves and on behalf of members of Laoye and Aburumaku sections of Shoun of Ogbomoso family (hereinafter called the Grantors).

It is observed that the present Shoun and 2nd appellant herein is the 1st named representative of the Grantors. The 2nd and 3rd recitals in the Deed are noteworthy. The 2nd recital reads:

“Whereas the Ogbomoso Investment Club (Nigeria) Limited has donated on behalf of the Ogbomoso community 12.27 acres of thesaid-ii.5 acres ‘of land required for the said stadium.”

and the 3rd recital went on to state that

“whereas the Laoye and Aburumaku sections of Shoun of Ogbomoso family is seised and possessed of a piece or parcel of land situate, lying and being at General Hospital Area, Ogbomoso, Oshun North West Division, Oyo State of Nigeria, by settlement and occupation under Native Law and Custom from time immemorial.”

The body of the deed then proceeded as follows:

“Now this DEED OF GRANT WITNESSETH that in pursuance of the said agreement and consideration of the natural love and affection the grantors have for the Ogbomoso community the Grantors as BENEFICIAL owners and as heads of the family hereby GRANT, TRANSFER, CONVEY AND ASSURE UNTO THE GRANTEE ALL THAT piece or parcel of land, situate, lying and being at the General Hospital Area, Ogbomoso, Oshun North-West Division of Oyo State of Nigeria measuring an area of 12.27 acres……….

to hold the same unto the use of the grantee in fee simple absolute free from all incumberances and freed and discharged from all incidents of customary land Tenure.”

The words speak for themselves. That Deed was executed on the 7th day of October, 1976.

In Exhibit H which is a Deed of Conveyance of Land contained in survey Plan No. OB231 of 29/8/1970, the named vendors are:

(1) Alayeluwa Oba Jimoh Oladunni Oyewunmi, Ajagungbade III, Shoun of Ogbomoso;

(2) Dawudu Olaleye Oyewumi (Magaji) of Akata, Ogbomoso

(3) Jimoh Ladosu

(4) Lawuyi Adamu

(5) Salami Jokodoye

(6) Shiltu Oyelami

(7) Raji Oyewumi; and

(8) Aminu Oyewumi

(Principal and accredited representatives of the Gbagun Ruling House of Ogbomoso family (hereinafter called the ‘Vendor’).

The Purchaser is

J. Oyewumi & Company Ltd. a limited liability company founded by the 2nd appellant.

The 1st recital to the Deed is totally contrary to the contention of the appellants in the instant appeal. It reads:

“Whereas the Gbagun Ruling House of Shoun of Ogbomoso family is seized and possessed of vast area of land situate, lying and being at along Ilorin Road near the Public Cemetry, Ogbomoso, Oshun North-West Division, Oyo State of Nigeria by settlement and occupation under native law and custom from time immemorial. ”

This Deed was executed on the 17th day of September, 1976. Exhibit D1 an Indenture of Disclaimer executed by His Highness Olatunji Elepo II the Bale of Ogbomoso is of particular significance. The significance lies in the fact that the predecessor in office acknowledged in writing that he had no right to alienate or dispose of land belonging to a Ruling House in Ogbomoso of which he was not the head. This is vividly brought out by the recitals which read: “Whereas by a deed executed on the first day of April, 1963 between the said Grantor/Disclaimant and Mr. Jacob Ayoola Oyewumi (hereinafter referred to as the Grantee) before Senior Magistrate T.S. Gomes at the Magistrates Court, Ogbomoso, the said Grantor purported to have granted a piece and parcel of land being the property of Oyewumi Ruling Family land situate and being at Ojaigbo, (next to the present Town Hall) Ogbomoso, to the said Grantee, and Whereas in the said grant the said grantor/disclaimant represented himself as Head of Oyewumi Ruling Family of Ogbomoso and as such that he according to native law and custom in effect had the right to dispose of Oyewumi family land and

Whereas the said grantor/disclaimant has now discovered and acknowledged that the said land is the sole property of Oyewumi Ruling House of which he is not the head and as such has no right so to have disposed of the family land and.

Whereas this purported grant has since been registered at page 25 No.25 Volume 696 of the Lands Registry, Ibadan and

Whereas………..

Now this Deed Witnesseth that He the said grantor/disclaimant His Highness Olatunji Elepo II; the Bale of Ogbomoso hereby by this DISCLAIMER doth disclaim any purported right over the said Oyewunmi Ruling House Family land and hereby further denounces and withdraws from any purported grant of this said land as above to the said Jacob Ayoola Oyewunmi.

The said grantor/disclaimant further acknowledges that the only persons having right to dispose of the said Oyewumi Ruling House family land are the accredited members or representatives of which he the said grantor/disclaimant is not one.”

This Indenture of Disclaimer was executed on the 1st day of November, 1965.

With all these documentary exhibits and oral evidence before the court, the High Court and the Court of Appeal were justified in rejecting the contention of the appellants that the Shoun is in control of all lands in Ogbomoso and that only he can transfer title to land in Ogbomoso.

The issue of judicial notice of previous decisions on the customary law on land tenure in Ogbomoso engaged the attention of counsel and the two courts below more than all the other issues for determination in the appeal. The reason is not far to find. Ajao v. Ikolaba (supra) was a decision of the Supreme Court where the statement of the customary law on land tenure in Ogbomoso which the appellants relied on was made. The High Court decisions on the customary law of Ogbomoso are in

1. Okanlawon & Ors. v. Olayanju & Ors. Oshogbo High Court Suit No.HOS/89/76 delivered on 24/8/78.
2. Bankole v. Bala & Ors. Oshogbo High Court Suit No.HOS/104/76 delivered on 10/6/80;

There is also the Court of Appeal decision in

3. Bala & Ors. v. Bankole FCA/1/139/86 delivered on 6/5/86.

Whereas the issue of applicable customary law in the instant appeal was in contest in case Nos. (1), (2) and (3) above, it was not in contest in Ajao v. Ikolaba (supra). The respondent has conceded that the customary law as advocated by the appellant applies to stool land with slight modification. The only real issue therefore is whether persons or families other than the Shoun of Ogbomoso have title to land in Ogbomoso under Ogbomoso Customary Law which they can transfer to grantees or purchasers.

The appellants overlooked the only question for determination in Ajao v. Ikolaba which is whether Chief Ikolaba who acted as agent for the Shoun in the allocation of land to file ancestors of the plaintiff can turn round and claim title to the land he has allocated in his capacity as agent when title to the land allocated was vested in the Shoun as trustee for the community. That was the sole question. ‘There never was any issue between the Shoun and another person on the issue of applicable customary law or the ownership of the land. That issue arose in the instant appeal and led the High Court to the adoption of the procedure in section 14(3) of the Evidence Act which reads:

“Where a custom- cannot be judicially established as one judicially noticed, it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or class of persons concerned in a particular area regard the alleged custom as binding on them………….”

Counsels have addressed the court on the interpretation of section 14(2) of the Evidence Act. It was contended that in Cole of Akinyele (1960) 5 FSC. 84 at 86; [1960] SCNLR 192 per Brett, F.J. (where Brett, F.J., took judicial notice of the custom of acknowledging paternity by a man in his life time to give legitimacy to his issue established only in a single case of Alake v. Pratt (1955) 15 W.A.C.A. 20 was the only decision in support-of the appellants’ contention that the custom declared in the solitary case of Ajao v. Ikolaba (supra) qualified for judicial notice to support the appellants’ case. The cases of Angu v. Attah Gold Coast Reports pc. 1874-1926; Larinde v. Afiko 6 WACA. 108; Odufuye v. Fatoke (1977) 4 SC.11 at 17 per Sir Udo Udoma, J.S.C., and Giwa v. Erinmilokun (1961) 1 All NLR. 294 at 296 per Taylor, F.J. all require frequent proof of a custom to entitle the custom to judicial notice by the law courts.

Having regard to what I have said above as to the real issue in Ajao v. Ikolaba (supra), the issue of not according Ajao v. ikolaba judicial notice assumes less importance, fades into the background and disappears.

The final issue raised is as to the High Court considering evidence of recent acts of possession and ownership when traditional evidence proves inconclusive. Traditional grants, it must be admitted, can only be proved by traditional evidence. They cannot be proved by evidence of writing. The evidence must consist of oral history handed down by word of mouth from generation to generation and so a distinction must be drawn from modern grants which have to be evidenced by writing. Proof of such grants cannot be elevated from traditional evidence to primary and secondary evidence necessary for modern grants.

Therefore, a recent act of possession and ownership is indispensable in such cases. See Kojo v. Bonsie (1957) 1 W.L.R. 1223.

The lower court was perfectly justified in falling back on recent acts of ownership to determine the person with a better title. There have been concurrent findings of fact by the two courts below and as such, an examination’ of and an excursion into the facts of this case to ascertain the justice of the case is unnecessary.

The appeal fails and is hereby dismissed with N500.00 to the respondent. The decision of the Court of Appeal is hereby affirmed.

SC.26/1988