Chief Kehinde Onadehin & Ors v. J. S. Sonuga & Anor (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI WILLIAMS, J.S.C. 

In the Ijebu Ode High Court, the plaintiffs now respondents, claimed against the defendants, now appellants, jointly and severally the sum of 1 ,250 (N2,500) as special and general damages suffered by the plaintiffs as a result of the trespass committed by the defendants by unlawfully entering upon a piece of land known as Agbodu farmland in Simawa Village, Shagamu District, during the months of April and May, 1963. They also asked for an injunction to restrain the defendants their servants and/or agents from committing further acts of trespass on the said land.

In their amended statement of claim, the plaintiff avetered in paragraphs 5 to 12 as follows:-

“5. The plaintiffs aver that Ogbodo, their ancestor, had settled ”and farmed the land for many years before his death. After the death of Ogbodo, Ajayi Amobitasa, his son, inherited the land and continued to cultivate and farm it. He, Ajayi Amobitasa, was the father of the mother of the plaintiffs who inherited the land through their mother Erinle, under native law and custom.

6. The plaintiffs’ family which is known as Ogbodo family have been in possession of the whole land since it was settled upon by their said ancestor and the plaintiffs have for about or more than 40 years remained in undisturbed and interrupted possession of the land since the death of their mother exercising divers acts of ownership e.g. granting portions of their land to strangers to farm for cash crops, while their members have also been farming on portions thereof for cash crops and have planted economic trees from time to time without let or hindrance from any quarter.
7. The plaintiffs aver that their mother, Erinle had granted portions of the land to some of the defendants ancestors to farm for cash crops on payment of yearly rent, and that the defendants knew of the relationship, which existed between their family and the plaintiffs’ family.

8.The plaintiffs also aver that their mother, Erinle did successfully assert and defend her right and title to the land against trespasser and other intruders in a court of competent jurisdiction to the knowledge of the defendants while she held it for an estate of inheritance in possession till the time of her death in September, 1927. Vide Suit No. 26/1922 between Erinle and Oduntan.

9. The plaintiffs further aver that the defendants’ ancestors had never disputed but admitted in evidence the exclusive right of ownership of the plaintiffs’ predecessors-in-title over the Agbodu farmland in a Suit No. 17/32 between the 1st plaintiff and the defendants’ predecessor-in-title. The plaintiffs specifically plead this case and rely on the proceedings and judgment as constituting estoppel per rem judicatam against the defendants in so far as ownership or declaration of title in favour of the plaintiffs are concerned.
10. The plaintiffs averted before and since the action was filed the defendants, their agents and/or their servants have unlawfully entered the said land and have felled trees for logs and have continuously reaped economic crops (e.g. cocoa, kola nuts, palm fruits and cash crops also, such as yams cocoyam, cassava, corm, vegetables etc., without the knowledge and consent of the plaintiffs.
11. The plaintiffs also averted that the acts of trespass by defendants cover a very extensive portion of the land and the defendants have also committed acts of waste on the land.

The plaintiffs further aver that the defendants and their agents have unlawfully entered on the land given to strangers or tenants and have plundered, robbed and deprived then of their farm products.”

The defendants denied all these averments in their own statement of defence. They averted in paragraphs 12 to 19 thereof as follow:

“12. The defendants will say in reply to paragraph 9 of the statement of claim that the action refeited to was between J.S. Sonuga and Olokun, and that the subject of litigation was in respect of land at ‘SIMAWA VILLAGE’ and not ‘AGBODUFARMLAND’.

13. The defendants will say that judgment in respect of that case was in favour of OLUKUN.
14. The defendants aver that the decision in Suit 17/32 was to the effect that the plaintiffs and defendants are joint owners of the land in dispute.
15. That the judgment of Suit 17/32 was confirmed in the judgment of Doherty J., in Suit J/26A/61 delivered on the 16th May, 1962, at the ljebu Ode High Court.
16. The plaintiffs say that their ancestors granted land to the plaintiffs and that since this grant they have not entered into the portion granted to the plaintiffs.
17. The portion granted to the plaintiffs is marked YELLOW on the defendants’ plan. . .
18. The defendants will show that it is the plaintiffs who trespassed into the defendants land, and as a result of this trespass the defendants in the Shagamu Grade B Customary Court, instituted action in suit LJ/78A/59 against the plaintiffs which suit after series of appeal is now to be heard DE NOVO at the Ijebu Ode Grade B Customary Court. .
19. As per paragraph 13 of the statement of claim the defendants say that there is no place known as IGBOTI. The defendants say that land at Agbodu is farmed by the GUNSENEMO ,FAMILY; and that the residential area is known as SIMAWA VILLAGE.”

Evidence was adduced by both sides. In a reserved judgment, the learned trial judge considered the evidence in detail and observed as follows:-

“It is true that in this case the plaintiffs are not claiming a declaration of title to the land but from the nature of the claim and the way the case of the plaintiffs have been presented they have put their title in issue; Abotche Kponuglo & ors. v. Adja Kodaja 2 WACA pages 24, 25: They have asked that Court from the way the case has been presented on their behalf to hold it. The defendants are estopped by the series of judgments in their favour which were pleaded and tendered in evidence that the title of the disputed land is in them. In this respect, they have failed to establish this and having come to this conclusion, I need not make any finding as to which of the story about the settlement of the disputed farmland given by either side is correct or more probable.”

The learned trial judge also considered the evidence given by both sides with respect to their respective claim to be in possession of the disputed land. On this point, he stated as follows:

“I accept and believe the evidence of all these witnesses of the defendants and find that members of the Gunsenemo family are farming on the land in dispute except the area edged yellow in Exhibit 8 …..

The plaintiffs in my view have not shown me that they have unambiguous and exclusive possession of the land in dispute as claimed by them in Exhibit 1. I am more inclined on the evidence to believe that their possession of any part of the land is as shown on the portion edged yellow in the defendants’ plan Exhibit 8.”

He thereupon dismissed the plaintiffs’ claims for trespass and injunction.

In the appeal by the plaintiffs to the Western State Court of Appeal against the judgment, that court, after considering the arguments put forward by learned counsel for the plaintiffs, stated that, at the trial, the defendants joined issue with the plaintiffs on; two matters-settlement and estoppel per rem judicatam and that in regard to the issue of settlement the defendants put up a rival claim. The court of appeal then observed as follows:

“The learned trial judge reviewed the evidence on those rival claims exhaustively, and one would have acted, with respect, that he would determine which of them was right. This he did not do, and we find if difficult to appreciate his conclusion that, as the plaintiffs have failed to establish their case of estoppel per rem judicatam, he had no need to make any finding on the issue of settlement.

“It seems to us, with respect to the learned trial judge, that the error arose in mixing the issue of settlement with that of estoppel. The pleadings show clearly that they are two distinct issues and the evidence on one is clearly distinct from the other. The issue of title could be resolved only, without recourse whatsoever to the evidence on, and the issue of estoppel and so also could the Issue of estoppel be resolved without recourse to that of settlement. Each issue is sufficient to ground a finding on title.

In our view, the first thing that the judge ought to have determined, having regard to his own finding that title is the main plank of the plaintiffs’ claim, is the question of settlement. But even without determining that issue first, once he found that the plaintiffs failed on the issue of estoppel per rem judicatam, it became imperative to make a finding on settlement for that was the only outstanding ground upon which he could determine the question of title to the land in dispute.”

On this sole ground that the learned trial judge made no finding on the issue of settlement, the court of appeal allowed the appeal, set aside the judgment of the learned trial judge and ordered that the case be retried by another judge in the Ijebu-Ode High Court.

The defendants now have appealed to this court against that judgment. The only point taken by learned counsel for the defendants is that, although the learned trial judge indicated in his judgment that he “need not make any findings as to which of the story about the settlement of the disputed land given by either side is correct or more probable”, the judgment showed that he did make a finding against the plaintiffs on the point and that the Western State Court of Appeal was therefore in error in allowing the appeal on this ground.

Learned counsel for the plaintiffs submitted, on the other hand, that the learned trial judge did not consider the issue of settlement by the plaintiffs and made no finding one way or the other on this crucial point. He also pointed out that the learned counsel for the defendants conceded this at the hearing of the appeal in the court below.

Having examined the judgment of the learned trial judge closely, we are of the view that he did consider the evidence of the plaintiffs as to their settlement on the land in dispute and rejected it. In coming to this conclusion, we wish to refer again to paragraphs 4 to 6 of the amended statement, of claim which read:

“4. The land originally formed portion of a vast area of land owned absolutely by Ogbodo family according to Yoruba native law and custom and also from time immemorial been in possession of the family as owners, thereof,

5. The plaintiffs aver that Ogbodo, their ancestor had settled and farming the land for many years before his death. After the death Ogbodo, Ajayi Amobitasa, his son, inherited the land and continue to cultivate and farm it He, Ajayi Amobitasa, was the father of the mother of the plaintiffs who inherited the land through their mother, Erinle under native law and custom.
6. The plaintiffs family which is known as Ogbodo family have been in possession of the whole land since it was settled since their ancestor and the plaintiffs have for about or more than 40 years remained in undisturbed and uninterrupted possession of the land since the death of their mother exercising diverse acts of ownership e.g. granting portions of their land to strangers to farm cash crops, while their members have also been farming on portions thereof for cash crops and have planted economic trees from time to time without let or hindrance from any quarter.”

Those avertments show clearly that the settlement relied upon by the plaintiffs is inextricably linked with their averment as to undisturbed and uninterrupted possession of the land. The evidence adduced by them supported these averments. In considering the evidence, the learned trial judge observed as follows:

“From a review of the case presented by both sides it appears to me that the issues can fairly be resolved into two broad sides. Each side claim title to the disputed land as shown either in Exhibit 1 or Exhibit 8 and that by the premises of that title, possession of it has always from time immemorial been in either of the rival family. This is clear from the paragraphs of the pleadings set out above and the history of the land given by both sides.”

The learned trial judge then considered the issue of possession on which the plaintiffs’ averment as to that settlement on the disputed land is predicated and observed further as follows:

In this Case one feature of it helps in the re-resolution of the question as to who is in actual and physical possession of this area in dispute is the agreement about who the boundary men are. I have mentioned this earlier, and both plans filed relate to the same area of land It then becomes important that the evidence of the boundarymen called by either side should be important in this matter. ”

The learned trial judge there reviewed the testimony of each of these boundarymen, namely, Ali Alagbe 9th P/W, Aina Olukokun 4th D/W, Jimo Esulana Okunuga 5th D/W, and Mabawonku Oyetole Senuka 6th D/W, and found as follows:

“The evidence of all these witnesses is to the effect that the members of the Guriseilemo family farm on the greater part of the land except the area edged yellow-in Exhibit 8 as stated by 4th D/W and the defendants. The evidence of 6th D/W is very vital to the case of either side as a look at both plans filed would show this because of his family holdings of many parcels and Pieces of farmland around and abutting the land in dispute either in Exhibit 1 or Exhibit.J accept and believe the evidence of all these witnesses of the defendants and Plaintiffs that members of the Gunsenemo family are farming on the land in dispute except the area edged yellow in Exhibit 8. It should be mentioned that so important a witness as the 6th D/W Mabawonku Oyetola Senuka was not asked by the plaintiffs, about whether Shokunbi Sobowale, Dolapo Saibu, Taiwo Odubayo, all tenants of the plaintiffs, shown on Exhibit 1 and supposed to be farming near the boundary of Asenukan or Kuti or Oyetola or Eweiye farmland as shown on the two plans filed did farm there and if so for how long before the trespass complained of in this case. I must come to the conclusion that their existence on the land, if at all they were on it, must be shadowy and lends suppon to the story of the defendants about encroachment by plaintiffs’ tenants unto their (defendants) own areas where they farm.

The plaintiffs in my view have me that they have unambiguous and exclusive possession of the land in dispute as claimed by them on Exhibit 1.”

From the above finding, it is clear that the issue of settlement, which is nothing more than the actual physical occupation of the land by the plaintiffs, was thoroughly dealt with by the learned trial judge. We are not in any doubt that his finding in this respect covers both the case for settlement and for the possession on which the claim for trespass was predicated Therefore, it would not be correct for the Western State Court of Appeal to say that the evidence in suppon of the settlement was not considered at all. It is manifest that the dual function of this crucial testimony has also made the learned trial judge fall into the error of stating that he need not consider the issue of settlement when he has, in fact, considered it adequately and thoroughly.

After all, the traditional history given in support of the title of a family to its land usually traces the title to an individual founder who first acquired the land. This acquisition might be by settlement which, in that con, is no more than a permanent occupation of the land by the founder and the clearing of part of it for his own use and, if he has a family, for the use of his family as well.

Consequently, when the plaintiffs averred in their statement of claim that their ancestor, Ogbodo “had settled on and farmed the land for many years before his death” and that “the family have been in possession of the whole land since it was settled upon by their said ancestor”, all they meant was that the Ogbodo family had been in continuous possession of the land since it was occupied by their ancestor Ogbodo. Therefore, any finding as to the plaintiffs’ possession of the land in dispute would, in these circumstances, obviously include a finding as to the settlement.

For these reasons, we think that the Western State Court of Appeal was in error in concluding that the learned trial judge did not consider the issue of settlement.

The appeal is allowed and the judgment of the Western State Court of Appeal in Appeal No CAW/2/72 delivered on 28th March, 1973 inc1udingthe order as to costs, is set aside. We order that the judgment of the Ijebu-Ode High Court in Suit No. J/21163 delivered on 29th January, 1971, dismissing the plaintiffs’ claim in its entirety be restored and it is hereby restored and affirmed. Costs in favour of the defendants in the Western State Court of Appeal are assessed at N142 and in this court at N153.

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Other Citation: (1974) LCN/1841(SC)