Chief Raji Tomori & Ors V. Hosiah Motanmi & Ors (1970)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C. 

This action was commenced in the High Court of Oshogbo, (Suit NO.HOS/51/66) where the plaintiffs’ writ was endorsed as follows:-

“1. The plaintiffs’ claim is jointly and severally against the defendants for:
(a) A declaration of title to a piece or parcel of land situate lying and being at Idi Ose/Ila road at Oba in Oshogbo District, to be particularly delineated on the plan.
(b) The sum of One Hundred Pounds (100pounds) as damages for trespass committed by the defendants and/or their servants or agents on the said piece or parcel of land.
(c) For an order of injunction restraining the defendants, their servants or agents from repeating the said acts of trespass on the land.”

Pleadings were ordered and duly delivered. For their part, the plaintiffs who had instituted the action for themselves and on behalf of the Awoyale family aver in their statement of claim that they are the descendants of Lanlona who was the father of Awoyale: that Lanlona was the first settler in Oba and the head of the hunters: that as a hunter, he migrated from place to place in search of game: that as he was not stationary in Oba, he invited Lagunle, the ancestor of the 1st defendant, to settle in Oba and on his arrival, Lanlona made him the Bale of Oba: that the land now in dispute forms a portion of the land which Lanlona had settled on before he invited Lagunle to Oba and that the 1st defendant who is the present Oloba has no claim over the land.

On the other hand, the 1st defendant admitted in his statement of defence that as the Oloba of Oba, he granted the land in dispute to the 2nd to 9th defendants, and stated that under native law and custom he had the right to make the grants.
Apart from the traditional history, both the plaintiffs and the 1st defendant based their respective claims on long and undisturbed possession of the land.
The main issue raised by the pleadings was thus restricted to whether the land belonged to the Awoyale family or the Oloba of Oba.

After reviewing the whole evidence, the learned trial Judge proceeded in his judgment to deal with the evidence of history and stated that:
“The plaintiffs said their ancestor called Lanlona first settled at Oba Oke and later this Lanlona brought one Lagunle (1st defendant’s ancestor) to settle at Oba Oke. Both parties agreed that Lagunle was the 1st Bale or head of Oba Oke.

The Plaintiffs said Lanlona was not made the head of the town because he was a hunter who did not stay much at home. But one is tempted to ask why did Lanlona or his descendants not get any of the other traditional chieftaincy titles in Oba Oke as an honour of the fact that he was the founder of the town I think the fact that Lagunle and his descendants have been made head or Bale of Oba since the founding of the town supports the defendants’ claim that Lagunle was the founder and not anybody else. So on the question of traditional history I find that defendants’ story is more probable than that of plaintiffs.”

He also considered the evidence of acts of ownership and found as a fact that the land edged yellow on the plan (Exhibit A), on which St. Peter’s Church, Oba, was erected, was granted to the Church by the 1st defendant’s ancestor. We would, however, pause here to observe that that parcel of land is outside the area now in dispute. The learned Judge concluded by saying that the plaintiffs had failed to prove that they were in exclusive possession of the land and he dismissed their claim with 30 guineas costs.

The plaintiffs then appealed to the Western State Court of Appeal which allowed the appeal and ordered that judgment be entered for the plaintiffs in terms of their writ of summons.

The defendants have now appealed to this Court. Arguing the 1st and 2nd grounds of appeal, learned counsel for the appellants, Mr. Ogunsanya, referred us to the following portion of the judgment of the High Court:
“I accept the defence story that by Oba customary law it is the Oloba who makes grants of land for farming or building. The parties to this action agreed that the area in dispute is within the Oba Town Wall. I take judicial notice that land within town walls was in ancient time usually earmarked for building purposes and not for farming purposes and that the head of the town or village and his chiefs would normally make grants of such lands to families or individuals needing them.”
and pointed out that this was strongly criticised by the Court of Appeal which stated that:
“In the first place there is no where in the proceedings that the parties agreed that the area in dispute is within the Oba Town Wall. All that the first plaintiff said in his evidence under cross-examination was that ”the land in dispute is within Oba town. I know Oba town wall which is not far to the town.”

“On the side of the defence the 3rd defence witness said: “I know the town wall. It is about 4 feet. The town wall surrounds the Oba town. The land in dispute is within the town wall and not outside the wall.”

The town wall is not shown in the only plan filed in the action by the Plaintiffs and its materiality was not pleaded by either side. This finding of fact by the learned trial Judge is in our view a wrong one.

Secondly it is also equally wrong of the learned trial Judge to say that he took judicial notice that land within town walls in ancient time was equally earmarked for building purposes and not for farming etc; when there was no evidence of such ancient custom before him.

The finding based on a custom for which there was no proof before the learned trial Judge that the land in dispute is within the town wall and therefore it was land “earmarked for building purposes and not for farming purposes and that the head of the town or village and his Chiefs would normally make grants of such lands to families or individuals needing them,” is in our view erroneous, and cannot be used to defeat plaintiff’s claim that the land in dispute formed portion of the land farmed by members of their family.”

Counsel then contended that the observation of the High Court that the parties to the action agreed that the area in dispute is within the town wall was the only reasonable inference that could be drawn from the evidence of P.W.2 and D.W.3.
The evidence of D.w.3 on this point is clear and unequivocal. He testified that the land in dispute is within the town wall.

But neither P.W.2 nor any of the other witnesses for the plaintiffs gave a similar evidence and we fail to see how it could reasonably be inferred from the evidence of the plaintiffs’ witnesses that the land in dispute is within the town wall. The Court of Appeal was therefore fully justified in finding as it did that there is nowhere in the proceedings that the parties agreed that the area in dispute is within the Oba town wall.

Before dealing with the other points canvassed before us in this appeal, we wish to observe that the way the learned trial Judge used such evidence as there was as to whether the land in dispute is located within or outside the town wall deserved criticism. It was wrong for him to make an issue of the town wall and to give it all that prominence when the parties did not raise it in their pleadings. Furthermore, if the town wall had been vital to the case, it would have appeared on the plan (Exhibit A).

The learned trial Judge also indicated in his judgment that he took “judicial notice that the land within town walls was an ancient time usually earmarked for building purposes not for farming purposes.” On this point, the Court of Appeal expressed the opinion that the learned trial Judge was wrong in law in taking judicial notice of a custom which was not proved.

Before us, Mr. Ogunsanya, rightly in our view, conceded that there was no evidence in support of the finding and we consider that the Court of Appeal was right. Before taking judicial notice of the custom, the learned trial Judge should have satisfied himself that the conditions laid down in sections 14(2) and 73(1)(1) of the Evidence Act had been fulfilled.
These sections are as follows:-
“14 (2) A custom may be judicially noticed by the court if it has 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 persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.”

“73(1) The court shall take judicial notice of the following facts:-
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 England or the Supreme Court of Nigeria, or former Supreme Court of Nigeria not known as the High Court of Lagos, or by the High Court of the Region and all customs which have been duly certified to and recorded in any such court.”

In the portion of the High Court judgment referred to earlier in this judgment, the learned trial Judge said, in effect, that the Oloba as the head of the town would normally make grants of land to families and individuals.

With respect, it seems to us that, in making this finding the learned Judge misconceived the basis of the plaintiffs” claim that the land in dispute is a portion of their family land and does not fall within the area of land in Oba over which the Oloba is entitled to exercise dominion as the head Chief.

Mr. Ogunsanya next argued the 3rd ground of appeal which reads as follows:
‘That the Court of Appeal erred in law and on facts when it held that there are no basis for the conclusions reached by the lower court on the traditional history when the court only stated its reasons for coming to such conclusions and when they are sound reasons for such conclusions and when there were ample evidence before it to support them.”

In considering this ground of appeal, we shall once again refer to the portion of the judgment where the learned trial Judge considered the evidence of traditional history. He said:-

”The plaintiffs said their ancestor called Lanlona brought one Lagunle (1st defendant’s ancestor) to settle at Oba Oke. Both parties agreed that Lagunle was the 1st Bale or head of Oba Oke. The plaintiffs said Lanlona was not made the head of the town because he was a hunter who did not stay much at home. But one is tempted to ask why did Lanlona or his descendants not get any of the other traditional chieftaincy titles in Oba Oke as an honour of the fact that he was the founder of the town I think the fact that Lagunle and his descendants have been made head or Bale of Oba since the founding of the town supports the defendant’s claim that Lagunle was the founder and not anybody else. So on the question of traditional history I find that defendants’ story is more probable than that of the plaintiffs.”

The Court of Appeal considered this aspect of the case and stated as follows:-
“With due respect to the learned trial Judge there are no basis for the conclusion reached by him. It was a mere conjecture on his part and it is wrong.”

It does seem to us that the main reason why the learned Judge rejected the plaintiffs’ evidence of traditional history was that neither their ancestor, Lanlona nor any of his descendants is the holder of a traditional chieftaincy title.

We are in no doubt that before rejecting the plaintiffs’ evidence of traditional history, the learned Judge failed to give adequate consideration to the whole evidence especially the undisputed fact that as Lanlona was the head of the hunters, he had to move from place to place hunting, and that this was why the defendants’ ancestor, Lagunle, was invited to Oba by Lanlona and made the Oloba. If the evidence had been properly appraised, the learned Judge would have appreciated that as a direct consequence of the installation of the defendants’ ancestor as the Oloba of Oba by the plaintiffs’ ancestor (Lanlona), the defendants and not the plaintiffs are now the holders of traditional chieftaincy titles. In our view, the 3rd ground of appeal lacks substance.

The other grounds of appeal relate to the exercise of acts of possession over the land in dispute, and, in considering them, it is necessary to examine in detail the plan (Exhibit A) of the land in dispute tendered by the plaintiffs at the trial. The plan comprises of an area of 24.36 acres edged red and stated to be the land of the plaintiffs.

The land in dispute is edged green on the plan and covers an area of 4.735 acres. It is within the area edged red and consists of parcels of land granted by the 1st defendant to the 2nd to 9th defendants. On the north eastern side of the land in dispute and also within the area edged red is a parcel of land belonging to the plaintiffs and shown on the plan as Awoyale Compound. It would appear from the plan that there are 5 buildings and a pottery in Awoyale Compound. On the western side of the land in dispute and also within the area edged red is a vast area of Kola and cocoa plantation which is stated on the plan to belong to the plaintiffs. It is thus clear from the plan that the land in dispute is bounded on the north, north west and south west by land stated to belong to the plaintiffs.

The Court of Appeal was of the opinion that, by virtue of section 45 of the Evidence Act, the location of the land in dispute which, except for the south and south west, is completely surrounded by land belonging to the plaintiffs, raised the presumption that the land in dispute belonged to the plaintiffs.

We consider, that, in the instant case, this conclusion is inescapable as the land in dispute is virtually encircled by the plaintiffs’ land and as the defendants never resisted the plaintiffs’ claim of ownership of adjoining parcels of land which are so situated or connected with the land in dispute as to justify drawing the inference that the plaintiffs are the owners of the land in dispute.

We are therefore of the view that the Court of Appeal was right in its application of the provisions of Section 45 of the Evidence Act to the facts of this case.

For the foregoing reasons, this appeal fails on all grounds and it is hereby dismissed with costs to the plaintiffs/respondents assessed at 38 guineas.

Other Citation: (1970) LCN/1762(SC)