The Olujebu Of Ijebu Vs Oso, The Eleda Of Eda (1972)
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B. A. COKER, J.S.C.
This case has been the foundation of some painful litigation spanning a period of at least 20 years between the two neighbouring communities of Ijebu and Eda in the Ikole District of Ekitiland. The proceedings originated in the Ekiti Divisional Native Court, Ikole, where by virtue of a writ issued in 1952 (Case No. 47/52), the present respondent, as plaintiff, had claimed against the present appellant, then defendant, as follows:-
“(1) Declaration of title to the whole piece of land situated within the Eda Village area of Ikole District and known as Asemi Oniko farm-land and separated from the defendant’s portion of land by ancient boundary mark still seeable (sic) on the land till today.
(2) Court’s injunction against the defendant and or his people to cease molesting plaintiff and his people over the land.”
As stated, the case was heard by the Ekiti Divisional Native Court which after a full hearing entered judgment for the plaintiff as per the terms of his writ. Part of the judgment of that court reads as follows:-
“For plaintiff we award the whole of the disputed area as marked out in Plan No. BK.77 to the plaintiff. Asa River should be the boundary between each of the two parties’ portion of land. Any future demarcation of the two distinct portions of farm should run through this course and should terminate at the extremest end of the northern side of the disputed area beyond Ita Didu and ending at the two mounds claimed as the boundary demarcation of the Eda people, Orin-Oke people and Ijebu people farm-land.”
The present appellant who was then the defendant was dissatisfied with this judgment and he appealed against it to the Divisional Adviser, Ado-Ekiti (Mr. S. A. Thomas) who heard the appeal and allowed it setting aside the judgment of the Ekiti Divisional Native Court and awarding title in the land to the defendant. This was on the 12th October, 1956. The plaintiff then appealed against the judgment of the Divisional Adviser to the Provincial Adviser Ondo Province, who at the time was Mr. J. D. Hamilton. He heard the appeal, allowed it and set aside the judgment of the Divisional Adviser. In the course of his own judgment, given on the 23rd February, 1957, the Provincial Adviser observed, inter alia, as follows:-
“It is an accepted principle that questions of land are best settled by Native Courts and that their findings should not be reversed unless strong evidence is forthcoming to contrary. I find nothing to criticise in the Ekiti Court judgment, with which I generally agree.
ORDER: Appeal is allowed. Judgment of Divisional Adviser is set aside, and that of the Ekiti Divisional Court is restored.”
Against that judgment the defendant appealed to His Excellency the Governor, Western Nigeria but by virtue of the provisions of section 74(2) of the Customary Courts Law, Cap. 31, which had then come into force, the Chief Justice of the then Western Nigeria made an order transferring the case to the High Court, Akure, for hearing. Pleadings were filed and exchanged and after a full hearing of the case by Madarikan J., as he then was, the plaintiff’s case was dismissed with costs and all the proceedings in the lower courts were set aside. This was on the 10th April, 1961.
Against that decision the plaintiff appealed to the Federal Supreme Court and in its judgment of the 27th September, 1965, the Supreme Court held that the transfer of the case pending as an appeal before His Excellency the Governor, Western Nigeria, should have been to the appropriate magistrate’s court under section 74(2)(b) of the Customary Courts Law and not to the High Court to which it had been transferred, set aside the judgment of Madarikan J. and remitted the case back to the High Court, Western Nigeria for the Chief Justice to give the necessary directions for the transfer of the case to the appropriate magistrate’s court for hearing. Pursuant to this judgment, the Chief Justice of Western Nigeria directed by order dated the 15th October, 1965 that the case be re-heard by the Chief Magistrate, Akure. It was indeed so reheard by Mr. O. O. Sawyer, Acting Chief Magistrate, Akure, who on 2nd September, 1967 gave judgment in the case. It must be remembered that as before the Chief Magistrate the matter was an appeal by the defendant against the decision of the Provincial Adviser who had given judgment in favour of the plaintiff and awarded him title in respect of the land in dispute.
The learned Chief Magistrate ended his judgment as follows:-
“In my view, I find that the Ekiti Divisional Native Court had listened fairly to both sides and gave adequate opportunity to both sides to argue their cases. I find also that the plaintiff had established his claim sufficiently in the Divisional Court and that the Provincial Adviser was correct to have restored the decision of the Ekiti Divisional Court. I agree with the judgment of the Provincial Adviser and I would accordingly dismiss this appeal with costs.”
Dissatisfied with this judgment, the defendant again appealed to the High Court, Akure where the appeal was heard by Odumosu J., who delivered judgment therein on the 27th September, 1968 and dismissed the defendant’s appeal. Still dissatisfied with that judgment of the High Court, Akure, the defendant appealed to the Western State Court of Appeal which heard his appeal on the 26th January, 1970 and dismissed it summarily at the hearing. The defendant has now appealed to us against the decision of the Western State Court of Appeal.
A number of grounds of appeal were filed and argued before us and it is approriate to deal with them seriatim. Firstly, it was argued on behalf of the defendant that the plaintiff did not discharge the onus of proving that he was entitled to the declaration which he had sought and that the Western State Court of Appeal was wrong to have affirmed the judgment which had given the plaintiff such a declaration. Counsel submitted that the evidence before the court of trial, both of tradition and of actual user, was meagre and that on the principles of law enumerated in Ekpo v. Ita (1935) 11 N.L. R. 68, the plaintiff’s case should have been dismissed. Learned counsel for the plaintiff on his part submitted that the evidence was sufficient and overwhelming and that it satisfied the court of trial and also that in any case the sufficiency of evidence was a matter for the court of trial. We are of course unable to accept the contention of learned counsel for the defendant on this point. The case was heard by the Ekiti Divisional Native Court before which the parties gave evidence. The plaintiff gave evidence to the effect that the land in dispute had always belonged to his pregenitors and that a common boundary-the Asa Stream-separated the land from the land of the defendant; that in exercise of his right of ownership he, like his fathers, had constantly given out portions of the land in dispute to tenants and that his own people own and extensively farm plantations on the land in dispute which the defendant and his people were then trying to claim. The members of the Native Court which tried the case then visited the land in dispute in the presence of the parties and indeed took evidence on the spot, not only from the parties but also from some other persons admittedly then on the land. In the course of his evidence in court, the plaintiff had stated that it would not have been necessary for him to institute the present proceedings but for the fact that surprisingly the defendant had instituted an action against him for trespass on the same land at the Ikole Native Court and that he, plaintiff, “had to explain it to the court then that the defendant’s claim against me was false.” In rebuttal of the plaintiff’s case, the defendant gave evidence of the migration of his own people from the land in dispute at an unknown time to their present homestead at Urode, otherwise known as Ijebu, and that whilst at Urode he learned that the plaintiff and his people had been trespassing into the land in dispute and so he had come back to institute the action for trespass against the plaintiff. He testified that the Asa Stream passed through his own farms which included the land in dispute and that indeed on the land in dispute his people had placed the shrine of their family juju known as “Orisa Agbajo”.
As stated before, the Ekiti Divisional Native Court inspected the land in dispute. The court found no shrine on the land and indeed stated in their report of the inspection that the features described by the plaintiff as characterising the land in dispute were all present thereon. At the locus in quo during the court’s inspection, the defendant called a witness to support his case but the evidence of this witness simply confirmed the case of the plaintiff, hence in the course of its findings the Ekiti Divisional Native Court observed, inter alia, thus:-
“It is significant that the defendant had no concrete evidence to adduce on the line shown to the court by the plaintiff as boundary line between his own farmland and that of the defendant’s land. Looking through the plaintiff’s line and from the information tendered before us by the court representative who inspected disputed area, the only place which the defendant could lay claim upon as a visual object is a cocoa farm which had just been made by a farmer from his village. Cultivation of this cocoa farm could not have been started more than two years ago.”
and, later in the course of the findings, the court said:-
“Some few yards from the latter spot shown by the defendant and within the disputed area is a cocoa farm said to have been owned by an Ijebu village farmer Buraimoh Olujebu who is a relative of the defendant. The cocoa farm has been yielding fruits and must have been on cultivation for about twenty years, now.
This is the only farm of any description owned by any of the defendant’s people in this portion of the disputed area.
We are satisfied that it was through penetration by crossing over River Asa that the man Buraimoh Olujebu had come to that area to make the cocoa farm and not by right of ownership of the piece he had used in cocoa plantation. The most important object of boundary throughout Ekiti as well as in anywhere in Yoruba country is a river or stream.”
The law is that a plaintiff who seeks a declaration of title has the onus of proving that he was so entitled. He can do this either by adducing cogent evidence of tradition or by giving evidence of positive and numerous acts of ownership pointing unequivocably to the fact that he was exercising dominion over the land in dispute or by giving evidence of both. We think the findings of the Ekiti Divisional Native Court were justified by the evidence which that court had accepted in this case and the ground of appeal complaining about the sufficiency or otherwise of evidence must and does fail.
Next, it was argued on behalf of the plaintiff that the entire proceedings should be declared a nullity because of irregularities due to change in the membership of the native court panel during the hearing of the case. The complaint was that on the 22nd February, 1956, when the hearing of the case started, four members were sitting with Mr. J. F. Akinlaja, the Acting President of the Court, but that on the 2nd March, 1956, when judgment was given, six members were then sitting with the same President. Learned counsel for the defendant then referred us to the decisions of this Court in Adeigbe and Anor. v. Salami Kusimo and Ors. (1965) N.M.L.R. 284 and Obaze Ogiamien and Anor. v. Obahon Ogiamen, etc. (1967) N.M.L.R. 245. We have read these cases and it is significant that learned counsel should have referred to them as they clearly do not support the contention of counsel as to the invalidity of the trial before the Ekiti Divisional Native Court. In Obaze Ogiamien v. Obahon Ogiamien, supra, this Court referred to its previous judgment on this point in the case of Adeigbe and Anor. v. Kusimo and Ors., supra, and decided that the decision in the earlier case made it clear that variations in the panel of Native Courts do not necessarily invalidate their decisions and that such complaints would do no more than impugn the soundness of the court’s decision. There was indeed, in the present case, no variation during the actual hearing of the case and it is also fair to say that there was no variation throughout the trial of the case. The complaint relates only to the day of judgment of the court and it is easy to see that the argument concerning a variation in the bench of the native court overlooks the real facts of this case.
We do not think that the argument was well founded. It is not disputed that the entire evidence in the case was given and taken before the panel consisting of the President of the Court and four of the members who sat with him on the 22nd February, 1956. It is also not disputed that on the 2nd March, 1956 when six members sat with the President, all the four who had been sitting on the case with him were also present and were amongst the six and that indeed on that date all that happened was that the judgment of the court was delivered by the President. But it was submitted that a member of the court who did not sit when evidence was being taken should not have sat only to listen to the judgment. Frankly we can find no authority for this submission and none has been produced for it. We think the appropriate view of the law is as contained in the cases which we have discussed above and this ground of appeal must as well fail.
There was a feeble attempt to argue that there was a subsisting judgment of the Ikole Native Court in favour of the defendant and against the plaintiff and that in the circumstances the plea of res judicata should have operated. There was neither material nor occasion on which the issue could have been considered at all, for it was never pleaded and not raised before the trial court and in any case the case relied upon as constituting the res was never produced in evidence. Eventually, learned counsel for the defendant conceded that she could not pursue this ground of appeal and we are firmly of the view that the ground of appeal must also fail.
In the end all the grounds of appeal argued on behalf of the defendant fail and the appeal itself fails and will be dismissed. There is however one matter which we propose to comment on. Our attention was drawn to an order of the High Court, Akure, to the effect that a sum of 3750 ordered by the court to be deposited therein in this case be paid out to the plaintiff and learned counsel for the defendant submitted that in accordance with the reliefs sought by the defendant as shown in his notice of appeal the money should be refunded to the defendant.
In view of the decision at which we have arrived on this appeal we do not consider that the question now arises for we think that the order of the learned trial judge to the effect that the money be paid out to the plaintiff was justified and should stand.
The appeal of the defendant is dismissed and he shall pay to the plaintiff the costs of this appeal fixed at 45 guineas.
Other Citation: (1972) LCN/1426(SC)