Saka Owoade & Anor V. John Abodunrin Omitola & Ors. (1988)

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NNAEMEKA-AGU, J.S.C.

This is an appeal against concurrent judgments of the High Court Ibadan, and the Court of Appeal, Ibadan Division. The High Court gave judgment for the Plaintiff. The Court of Appeal confirmed the High Court decision.

In the High Court, the Plaintiff Mr. S.L. Omitola commenced an action by a writ of summons against the 1st defendant, Saka Owoade for a declaration of title to a piece of land on Adeyinka Adebayo Road, Ibadan, 500Pounds (N1,000.00) damages for trespass and an injunction.

The 2nd defendant Arnusa Adeleke was later joined by order of court. In a nutshell, the Plaintiff’s case before the High Court was that be purchased the land in dispute from Eleruko line, a branch of Alasoro Family of Foko, Ibadan, that the land was part of Alasoro Family land which was granted to them by Alaran of Alaran Family.

The purchase was evidenced by a deed of conveyance registered as No. 13 at p.13 in Vol. 334 of the Register and dated 25th day of August, 1959. It also averred that early in 1959 the descendants of Alasoro and Eleruko partitioned their land and that it was part of Eleruko’s share that was sold to him. Since the purchase he has been in effective and continuous possession of the land in dispute. As part of their acts of ownership they permitted one Osa Salako to farm on part of the land now in dispute on conditions that he planted only food crops and paid “Isakole” to them. They averred that Salako died without an issue; and so the land reverted to his grantees.

The Defendants’ case was that the land in dispute measuring approximately 5.314 acres originally belonged to one Adeleke Aregbeomo who was granted the land by one Salako in March, 1926, as per a memorandum, Exh. 02. Salako himself had received a track of land which included the land in dispute as an absolute grant by custom from Alasoro and exercised all acts of ownership thereon until he sold a portion of it to Adeleke who thereafter exercised acts of ownership over the land until he died and the land devolved on his children. Adeleke’s children sold the land to the 1st Defendant as per a deed of conveyance dated the 18th day of October, 1960 and registered as No. 45 at P.45 in Vol. 409 of the Register of Deeds, Ibadan. Contrary to the plaintiffs’ case they averred that Salako had a son, a daughter, and a grandson and gave their names. Finally they stated that the children of Salako purported to sell and convey the land because they did not know that their father had sold and conveyed it to Adeleke for valuable consideration.

After trial the learned judge, Ogundere, J. (as he then was) entered judgment for the plaintiff and granted to him a declaration of title and a perpetual injunction. He also awarded N50.00 as damages for trespass against the Defendants. On appeal to the Court of Appeal, Ibadan, the appeal was dismissed. The Defendants (hereinafter called the Appellants) appealed. Parties duly filed and exchanged their briefs. The issues for determination in the appeal were admirably set out by the learned Senior Advocate for the Appellants thus:

“(i) Whether the four passages referred to in Ground One of the Grounds of Appeal do not amount to casting the onus of proof on the Defendants instead of on the Plaintiff and if so whether the Court of Appeal was right in upholding a decision of the High Court which is fixed with such fatal error of law.

(ii) Whether in the circumstances of this case if the names of the ancestors of the grand-children and great-grand-children of Alasoro and Eleruko which were not pleaded, but were improperly introduced in evidence without amendment of the statement of claim, were expunged from the I proceedings the case of the Respondent would not have been adversely affected as stated by the Court of Appeal; the names being those of the two of the three vendors who claimed to belong to the land owning family.

(iii) Whether family land which has been partitioned still retains the incidents of family land so that recipients of various parcels in the partition can still deal with other parcels not belonging to them, as their own – AND specifically, whether the issues raised under grounds four and six herein arc fundamental as submitted or amount to mere technicality as held by the Court of Appeal.

(iv) Whether in a case in which issue was joined on the family identity of vendors who granted family land, the court was not obliged to make specific findings on the relationship of the vendors where there is evidence which shows them to belong to a family different from that claimed by them – or at best, evidence which raises some doubt or is capable of raising doubts as to the particular family to which the vendors belong. This issue is canvassed in Ground five of the grounds of appeal herein.

(v) Whether an Appellant is at liberty to call in aid the provision of section 129 of the Evidence Act (which enables a Court to make certain presumptions in respect of a document which is more than 20 years old at the date of the contract) in support of a ground of appeal where a Statement in such document confirms the fact intended to be proved- Or whether in such a case (or in all cases) Sections 129 of the Evidence Act must be raised in a separate and distinct ground of appeal”.

I should mention, too, that before argument started in this appeal, learned counsel for the Appellants applied by a motion on notice to substitute Latifu Ajibola Owoade, Bola Fadele, Owolabi M. Owoade. And Majeed Owoade for Saka Owoade who had died. The application was granted. The Plaintiffs as substituted shall hereinafter be referred to as the Respondents.

The first issue for determination which was raised by the first two grounds of appeal attacks the learned trial judge’s approach to the cases of the parties and the confirmation of the judgment by the Court of Appeal. The gist of the complaint is that the learned judge cast the onus of proof on the Appellants, considered their case first, and dismissed it before he proceeded to consider and accept the case of the Respondents (Plaintiffs). Learned Senior Advocate for the Appellants referred to several passages in the judgment to substantiate his point. The learned trial judge, he complained, did not thereafter give adequate consideration to the case for the Appellants. He submitted that since the two parties traced their title to the same root, the onus was on the Respondent to establish a better title.