David Oye Olagbemiro V. Oba Oladunni Ajagungbade III & Anor (1990)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N. 

The appellant was the plaintiff in the High Court, Oshogbo where he claimed against the 1st respondent:

1. A DECLARATION of title in fee simple or alternatively, under native law and custom to all that piece or parcel of land situated, being and lying at LAOYE STREET MASIFA, OGBOMOSHO in Oyo State of Nigeria and covered by a deed of conveyance dated the 30th January, 1973 and registered as no. 25 at page 25 in volume 1452 of the lands registry in the office at Ibadan and plan No. OB 2705 dated 8th February, 1977.
2. N5,000 being damages for trespass committed by the defendant, his agents or servants at various times in 1974 on the said land.
3. PERPETUAL INJUNCTION restraining the defendant, his agents or servants from committing further acts of trespass. Annual rental value N200.00.

At its instance, the 2nd respondent was joined as the 2nd defendant in the suit.

The plaintiff averred in his pleadings that the land in dispute forms a portion of a large track of land belonging absolutely since very many years ago to Layode Chieftaincy family who are the original owners; that the said family had exercised full rights of ownership on the land in dispute before the family sold and conveyed it to the plaintiff. The plaintiff further averred that after he had purchased it in 1973, he erected signboard thereon, built a block wall fence around it and deposited sand and some blocks on it; that since April, 1976, the 1st defendant, his agents and servants have been trespassing onto the land in dispute and that after the institution of this suit the 1st defendant and his agents uprooted and removed the signboard of the plaintiff. In anticipation of the defence of the 1st defendant the plaintiff pleaded in paragraph 12 of his statement of claim.

The plaintiff avers that the defendant bought a different piece or parcel of land (not far from the on in dispute) from the same family of LAYODE CHIEFTAINCY FAMILY. The said land which is smaller than plaintiff’s land (i.e. land in dispute) is situated, lying and being behind Oshogbo District Council rest house which is not far from the land in dispute.

The gravamen of the defence of the 1st defendant is that the land in dispute belongs to the Shoun of Ogbomosho under native law and custom from time immemorial by settlement. It is pertinent to set out his defence in extenso. After denying that the Layode family was the original owners of the land, the amended statement of defence continues:

1 .That 1st defendant by virtue of being the Shoun of Ogbomosho is the head of the entire family of Shoun of Ogbomosho under native law and custom, and the successor in title to the Shoun’s land including the land in dispute.

2. Under native law and custom, the land was vested in the first Shoun of Ogbomosho (Ogunlola) by settlement and occupation and in the successive Shouns who succeeded him after his death.
3. The Layode family referred to in paragraph 4 of the statement of claim is a subsection of Odunaro section of Shoun of Ogbomosho family and has no exclusive right of ownership to the land in dispute.
4. It was the successive Shoun of Ogbomosho that exercised acts of ownership on the land in dispute and the land adjacent thereto.
5. The land now in dispute forms part of the land which late Oba Olanipekun Laoye II as Shoun of Ogbomosho granted to the Ogbomosho muslim for the building of the Ansar-Ud-deen School, Masifa Ogbomosho, sometime in 1951. The grant was made under native law and custom.
6. The said land in dispute is part and parcel of land granted later by Oba Olatunji Elepo II as Shoun of Ogbomosho to Ogbomosho Local Government Council for the use of the Ogbomosho Community in 1954 out of the large piece of land granted by his predecessor to the muslim in paragraph 7 above.
7. The said Ogbomosho Local Government Council used the land for its Local Government Police Barracks about 1954 until 1967.
8. The buildings erected by the Ogbomosho Local Government Council on the part of the land granted to it by the late Oba Olatunji Elepo II as shoun of Ogbomosho later housed the Oshun North West Divisional Office and at present it houses the Health Department of the Ogbomosho Local Government Council, shown on the survey plan filed by the 1st defendant as Health Office.
9. (a) The land now claimed by the plaintiff was the parade ground of the said Ogbomosho Local Government Police and the council planted banana grass on the land which can still be found on the land in dispute.

(b) The representatives of Shoun family including members of Layode family held meetings in 1972 in order to convey to the 2nd defendant the several pieces of lands already made available to the council for the use of the community including the land now in dispute. The 2nd defendant shall at the trail rely on the minutes of the said meetings, and particularly minute of meetings held on 11/12/72, 24/8/72 and 7/9/72. The representatives of all the sections of the Shoun family including members of Layode section held meetings in 1972 in order to convey the land in dispute.

10. That Ogbomosho Local Government Council demarcated the extent of the land granted to it by Shoun of Ogbomosho for the use of the community in 1954 by a trench dug and cemented along the land and part of which is shown by two black unbroken lines on the eastern side of survey plan filed by the plaintiff in this case and shown more extensively on the plan filed by the defendant.
11. About 1969, the Local Government Police system was abolished by the Federal Military Government of Nigeria and the said land was in disuse but the staff of the local government were maintaining the land by cutting grass and cleaning its drains.
12. That plaintiff unlawfully entered upon the land in dispute in 1973 when Oba Ajiboye Itabiyi II, my immediate predecessor in office was Shoun of Ogbomosho.
13. When the said Shoun Oba Ajiboye Itabiyi II challenged him, the plaintiff left the land and begged the said Shoun to grant him land in consideration of the sum of N3,000.00 which the plaintiff offered to Oba Itabiyi II. The late Oba Itabiyi refused to do so.
14. Soon after that the late Oba Itabiyi II fell sick and was admitted to the hospital and dies a few months later.
15. Soon after the death of Oba Itabiyi and before a new Shoun was selected and installed, the plaintiff entered upon the land and erected the wall fence and was challenged by the officer of the Ogbomosho Local Government Council in charge of land. His surveyor was also challenged when he was surveying the land.
16. As soon as the 1st defendant became the Shoun of Ogbomosho, he warned the plaintiff from going on to the land in dispute.
17. The plaintiff enlisted the assistance of some personalities in town including Chief Garuba Oyelude Jagun of Ogbomosho to beg him and grant him the land in consideration of sum of money which the plaintiff was prepared to offer to the 1st defendant. The 1st defendant refused the offer and refused to grant the land to the plaintiff.
18. The plaintiff started to deposit sand on the land in dispute about September, 1976 and the 1st defendant warned the plaintiff both verbally and in writing. The plaintiff did not any time have his signboard on the land.
19. In reply to paragraph 9 and 10 of the statement of claim, the 1st defendant contends that he asked his servants as of his right the beneficial owner of the land. The 1st defendant further avers that it is the plaintiff that is a trespasser on the land.
20. (a) That according to native law and custom, any part of Shoun of Ogbomosho land granted to any person or group of persons becomes a stool land and any right or reversionary interest accruing from it accrues to the incumbent of the stool of Shoun of Ogbomosho. Hence, the Hausa community pays homage to Shoun annually in respect of Saba settlement granted to Oba Sabi near the land in dispute for the use of Hausa community by Oba Oyewumi Ajagungbade II.

(b) The land of the Saint David’s Anglican Church, Sabo, Ogbomosho which is not far from the land in dispute was granted to it by Shoun Laoye in 1890 and was conveyed to the church later by another succeeding Shoun together with heads of all sections of the family.

The 1st defendant will rely on the deed of conveyance registered as no.5 at page 5 in volume 1111 of the Lands Survey, Ibadan.

21. The Shoun received the rent in respect of the Baptist Hospital land and the Baptist Centre granted to the Baptist Mission for use at Ogbomosho. The Shoun granted five separate pieces of land near the land in dispute to the Nigerian Tobacco Company Limited and it is any reigning Shoun that receives the rents in respect of the holdings. In paragraph 25, he pleaded thus:

The 1st defendant denies paragraphs 12 of the statement of claim and in reply to the same the 1st defendant says that the land on which he has his private house is adjacent to the muslim community praying ground and it is over a kilometre from the land in dispute.Thereafter, the 1st defendant counter claimed the whole area verged red on his survey plan LL-8110 which includes the land in dispute, sought perpetual injunction restraining the plaintiff, his servants or agents from committing further acts of trespass and N8,000 as damages for trespass.

In its pleadings, after having denied that the Layode family was the original owner of the land in dispute, the 2nd defendant averred that the land belongs to Shoun of Ogbomosho by settlement and occupation from time immemorial; that in 1954, the late Shoun, Oba Olatunji Elepo II granted the land to the 2nd defendant and since then the 2nd defendant has been in lawful occupation and possession by using it as a barrack and parade ground for the Local Government Police; that when the said police was abolished in 1967 the 2nd defendant continued to maintain the land; that the plaintiff entered the land in 1973 but left after the 2nd defendant had challenged him; again when he re-appeared on the land in 1976 and started to deposit sand and gravel, the 2nd defendant warned him in writing.

I consider it necessary to set out in full, the reply and defence to counter claim of the plaintiff. They are in these terms:

As to paragraphs 3, 5, 6 and 22 of the defence the plaintiff says as follows: “(1) That the five ruling houses or families (Layode, Gbagun, Oyewumi, Bolanta, Aburumake (or Itabiyi)) in Ogbomosho have different tracts of land situated and being at Ogbomosho.

(2) That the defendant has bought several parcels of land from Layode and Gbagun families. In this connection the plaintiff will rely on the following deeds of conveyance registered in the Land Registry Ibadan as no. 21 page 21 volume 1135; no.38 volume 941; no.41 page 41 volume 1183; no. 51 page 51 volume 1112.

(3) That the Layode family has also sold several other plots to other persons in Ogbomosho. In this connection, the plaintiff will rely on the following deeds of conveyance registered in the lands registry lbadan as no.9 page 9 volume 989, no.6 page 6 volume 298; no.20 page 20 volume 731.

(4) On some occasions, Layode family has granted parcels of land in Ogbomosho to various governments and institutions (Public and Private). In this connection, the plaintiff will rely on the deed of conveyance dated 23rd of March, 1973 between the then Western State Government and Layode family and registered in the lands registry as no. 12 page 12 in volume 1449.

(5) That the land in dispute said to be the property of the plaintiff has been acknowledged by the then Divisional Office of the Oshun North-West Division Ogbomosho in its letter dated the 20th March, 1973 to the Secretary District Council Ogbomosho.

(6) That the Oshun North West Division and all the official bodies of both the former Western State and the present Oyo State have always recognised Layode ruling house or family as a distinct ruling house or family. In this connection, the plaintiff will rely on a letter dated the 3rd of November, 1969 from the Oshun north west division to Mogaji of the Layode ruling house and others on the acquisition of land for the proposed Veterinary Control Pest and Cattle Market Ogbomosho 3. As to the counter claim, the plaintiff will contend at the trial that the subject matter in the counter claim is not competent before the court as the plaintiff has never claimed the whole of the land shown on Plan No. LL 8110.

SAVE and EXCEPT as herein before expressly admitted, the plaintiff denies each and every allegation of fact contained in the defendant’s counter claim as if each has been set out separately and denied seriatim. After having considered the evidence adduced by the parties and submission of counsel, the trial Judge found:

(1) that the Layode family sold the land in dispute to the plaintiff under the deed of conveyance, Exhibit A and that the said family had sold several parcels of land to several persons including the defendant as per Exhibits B, C, D, E, F and F2.

(2) that the different ruling, Chieftaincy families in Ogbomosho have their own separate land and distinct from any land which can be regarded as royal estates. These so called royal estates are vested in the person of the official head to certain ruling houses and to important chieftaincies by right of first occupancy or conquest as in the case of royal families whose heads originally founded the new site or subjugated the former occupiers.

(3) The evidence of 2nd defendant witness and 5th defendant witness support the fact that some land in Ogbomosho are attached to the title of the Shoun as distinct from other land owned by various ruling houses and individuals. The claim by the Shoun and one of his witnesses that all land in Ogbomosho belong absolutely to the reigning Shoun cannot hold good in view of the various deeds of conveyance tendered by the plaintiff in which the present Shoun is beneficiary having bought in fee simple before he became the Shoun. His explanation that those who sold land to him at that time sold in their private capacities as princes cannot be true in view of the recitals in Exhibits C, D, & E. If the custom existed in the reign of the 1st Shoun, it is difficult to believe that it does thereafter, especially when various ruling houses had been created in Ogbomosho after the reign of the 1st Shoun.

(4) Exhibit J and J1 made on 24th August, 1972 and 7th September, 1972 respectively show that all the Modes (Princes) of Ogbomosho participated in the conveyance of the several parcels of land to the Ogbomosho District Council. Among the property conveyed in Exhibit .J was the divisional office and field in front.

Having regard to the evidence that the land in dispute is situated infront of the divisional office, the trial Judge was unable to find whether the land is within the field in front of the divisional office, which Exhibit J shows to be within the joint control of all the Modes.

Her observation in this respect is as follows:

“As at the time the meeting in Exhibit J1 was held on 7th September, 1972, the land in dispute which from the plan Exhibit is the land in front of the divisional office had not been sold to the plaintiff. There is no specific mention of the field in front of the divisional office in Exhibit J1 as was done in Exhibit J at an earlier meeting.

In view of the fact that there is no comprehensive plan of the entire land belonging exclusively to the Layode chieftaincy family before the court, it is difficult to distinguish the land conveyed to the plaintiff from the adjacent land which are under the control of the modes who seem to have joint authority over the properties to be conveyed to the council. This is very essential in view of the fact that parties have joined issues in their pleading on question of absolute ownership of the land in dispute by Layode family.

Finally, the trial Judge found the traditional evidence of the parties to be inconclusive and the plaintiff did not prove acts of ownership. However, she did not dismiss the plaintiff’s claim but granted a non-suit on the grounds that the plaintiffs vendors had been shown to have some interest in the land in dispute although exclusive ownership was not proved by them and that a document, identification X5 which was a copy of a letter dated 20th March, 1973 written by one Otunla, the Inspector Divisional Officer for Oshun North-West Division, to the secretary of the district council Ogbomosho was not tendered in evidence by the plaintiff. The trial Judge found the failure to put the letter in evidence as an Exhibit created a missing link in the claim of plaintiffs evidence. In a cursory manner, the trial Judge dismissed the counter claim of the defendant on the simple ground that by his own pleadings and evidence the defendant showed that the late Oba Olatunji Elepo II as Shoun had granted the land in dispute to the Ogbomosho Local Government Council for the use of the community and the council is still in possession and has been using it for the Health Centre and has been cutting the grass thereon. Consequently, the defendant, who was not in possession could not sue in trespass.

The 1st defendant was not satisfied with the judgment and he appealed to the Court of Appeal against the order of non-suit and the dismissal of his counter claim. The plaintiff also cross appealed against the non-suit order but he subsequently abandoned the cross appeal. Apart from filing statement of defence, the 2nd defendant had not participated at the trial and did not appeal against the judgment of the trial court.

In a well considered judgment delivered by Ogundare, J.C.A., Nnaemeka-Agu, J.C.A… as he was then, and Sulu-Gambari, J.CA., concurring, after having stated the law relating to the granting of non-suit and the findings of facts made by the trial Judge that the Layode chieftaincy family through whom the plaintiff claimed had not established its title to the land in dispute either by traditional evidence or by acts of ownership, which were neither pleaded nor proved by evidence, the learned Justice observed thus:

The first reason given by the learned trial Judge for entering a non-suit in plaintiff’s favour is that plaintiff’s vendors were shown to have some interest in the land in dispute although exclusive ownership was not proved by them. Surely if they did not have exclusive ownership they could not pass any title to anyone else just as a member of a family cannot pass title to a third party in respect of family land sold by him. Such an alienation is just void under customary law. The fact that it was necessary for the principal members of the five ruling families to deliberate, as they did in Exhibits J and J1, on issues of lands in the vicinity of the land in dispute and, indeed, including the land in dispute is clear evidence that the Layode family could not by itself alone dispose of the land in dispute.

The second reason was plaintiff’s failure to put in evidence a document tendered for identification. As the document was not in evidence it is clearly wrong of the learned trial Judge to speculate on its contents or the effect it would have on plaintiff’s case. And if the failure to tender that document could not be placed on plaintiff’s doorsteps, on whose doorsteps should it then be placed Certainly, not on the defendants’ doorsteps.

In the light of my comments on the reasons given by the learned trial Judge for entering a non-suit, it is my view that a great injustice would be done to the defendants if the order of non-suit was not reversed.

In conclusion, it is my view, and I so hold, that in the light of the evidence and the findings of fact it was not a judicial exercise of discretion to enter a non-suit in favour of the plaintiff; his claims ought to have been dismissed. Accordingly, the Court of Appeal allowed the appeal against the order of non-suit and substituted therefor an order of dismissal of the plaintiff’s claim.

It is relevant to point out that the defendant had appealed to the Court of Appeal against both the order of non-suit and the dismissal of his counter claim upon one original ground of appeal and with the leave of that court, seven additional grounds.

In his judgment, Ogundare, J.C.A., had this to say:

It is pertinent to mention that the seventh additional ground is the same as the original ground which is that the judgment is against the weight of evidence. Consequently, the main argument was canvassed on the omnibus ground.

At the commencement of his judgment dealing with the counter claim, Ogundare, J.C.A., stated: “I shall deal first with the defendant/appellant’s claim for declaration of title (italics mine) and he then proceeded to reproduce extensively the evidence adduced by the defendant and his witnesses and concluded thus:

It is the traditional evidence adduced by these witnesses that the learned trial Judge found to be inconclusive. I cannot see how the totality of that evidence taken along with the admissions made by some of the witnesses for the plaintiff, including the plaintiff himself, can be said to be inconclusive. Apart from the fact that partition was never pleaded by the plaintiff it cannot even be said that a finding that there was partition of Ogunlola. Had the learned trial Judge addressed her mind properly to the evidence before her she could not have found, as she did, that the traditional evidence adduced for the defence was inconclusive. Furthermore, the learned Justice proceeded to consider the evidence relating to the facts in recent years to find out which of the two competing set of facts was the more probable.

Thereafter, he reviewed and evaluated the evidence exhaustively and concluded as follows:

On a calm view of the evidence as a whole, the only reasonable inference, in my humble view, that can be drawn is that the traditional history put forward by the defence is the more probable and judgment ought to have been entered in defendant/appellant’s favour on the counter claim for declaration of title. This is moreso as the district council no longer uses the land for the purpose for which it was granted to it, that is, as parade ground for the Local Government Police since the abolition of this force in 1967. There has been a reversion to the grantor, the Shoun of Ogbomosho see Ajao v. Ikolaba (1972) 5 S.C. 58. For the foregoing reasons the Court of Appeal allowed the appeal and entered judgment for the 1st defendant in these terms:

(1) Declaration that the 1st defendant is entitled to a statutory right of occupancy in respect of the land edged yellow on Plan No.LL8110 Exhibit K;

(2) N500 general damages for trespass committed by the plaintiff on the said land; and

(3) An injunction restraining the plaintiff, his agents or servants from committing further acts of trespass on the said land edged yellow on Plan No. LL8110 Exhibit K which is the same land as the one edged red on Plan No. OB 2705 Exhibit H in these proceedings.

The plaintiff was not satisfied with the decision of the Court of Appeal and has appealed to this court upon six grounds of appeal. I find it convenient to start with the ground of appeal No.6, which reads:

The learned Justices of Appeal erred in law in granting the respondents counter claim for declaration of title, trespass and injunction when the claims were clearly incompetent.

PARTICULARS OF ERROR

1. Sections 1 and 34 of the Land Use Act, 1978 debar the respondents from claiming the land in dispute by relying on allodial title.
2. While the respondents’ counter claim was based on allodial title in a representative capacity, the Court of Appeal granted absolute title to the respondent in his personal capacity.
3. The judgment as to declaration of title in a personal capacity granted by the court was neither claimed nor pleaded. (Italics mine)

In his oral submission, Chief Williams. S.A.N., for the plaintiff adopted his brief wherein he had contended that the defendant was not entitled to declaration of title, which he had not asked for in his pleadings, and was not also entitled to the same having pleaded and confirmed by his evidence that the land in dispute had been granted to the Ogbomosho Local Government Council. Learned counsel relied on Sanyaolu v. Coker [1983] 1 SCNLR 168 at 181.

In response, Dr. Ajayi of counsel for the defendant submitted in his brief that in the present appeal an extensive reviewing and re-appraisal of the evidence by the Supreme Court would, as already done by Ogundare, J.CA., be equally warranted in the light of the reasons given by the Court of Appeal. Thereafter, in meticulous details learned counsel reviewed the evidence and cited several authorities before contending that as in the case of Sanyaolu v. Coker (supra) the evidence before the court would not support any conclusion that the land in front of the district officer’s office, which is the land in dispute, is one to which the defendant as Shoun no longer has any title because one of his predecessors in office had divested the Shoun of such title. He submitted that the point about the previous divesting of the defendant’s title could not therefore properly have formed a basis for any decision of the trial Judge dismissing the defendant’s claim. Upon further review of the judgment of the Court of Appeal, Dr. Ajayi submitted that that court was right to have entered judgment for the defendant.

I agree with the submission of Chief Williams. S.A.N., that the defendant averred in his pleadings and asserted in his defence that the land in dispute had been granted to the Ogbomosho Local Government Council. Paragraphs 7 and 8 of his amended defence may be reiterated:

“7. The land now in dispute forms part of the land which the late Oba Olanipekun Laoye II as Shoun of Ogbomosho granted to the Ogbomosho muslim for the building of the Ansar-Ud-deen School, Masifa Ogbomosho; sometime in 1951. The grant was made under native law and custom.

8. The said land in dispute is part and parcel of land granted later by late Oba Olatunji Elepo II as Shoun of Ogbomosho to Ogbomosho Local Government Council for the use of the Ogbomosho community in 1954 out of the large piece of land granted by his predecessor to the muslim in paragraph 7 above.

On the issue, the defendant testified as follows:

Shoun Elepo Oba Olatunji gave the land in dispute to Ogbomosho Local Government Police in 1954 to be used as police barracks and parade grounds. The local government uses the place now as the Health Office. (Italics mine).

D.W.1., who in 1963 to 1966 was the secretary to the Ogbomosho district council and now is the secretary to the defendant also stated in his evidence relating to the land in dispute thus:

I met the local government police on that spot in 1963 and I left them there in 1966. I know that the land belongs to the council because local government police was part of the council. We were maintaining the land sending labourers to the place. It is transparently clear that the late Shoun divested the office of Shoun of the title over the land in dispute, if in fact Shoun had such title, by its grant to the council which is still in possession. That being the case, the defendant as Shoun is not entitled to a declaration of title over the land in dispute even if he is right in his claim that the land in dispute belonged to Shoun Sanyaolu v. Coker (supra) at page 181.

Furthermore, at the beginning of this judgment, I have set out extensively the defendant’s pleadings in order to show that he did not seek a declaration of title to the land in dispute. It is clear from the pleadings that the defendant as Shoun and the purported owner of the land seeks perpetual injunction restraining the plaintiff, his agents or servants from committing further acts of trespass on the land in dispute see paragraph 32 of the amended defence, the defendant’s counter claim therefore was founded on trespass and not on a claim for declaration of title.

It is trite law that trespass is a wrong committed against a person who is in exclusive possession of the land trespassed onto Akpapuna v. Nzeka [1983] 2 SCNLR 1, Ikpang v. Edoho (1978) 6-7 S.C.221 and Amakor v. Obiefuna (1974) N.S.C.C. 141.

When a parcel of land, which was trespassed onto, was in lawful exclusive possession of another person, a suit in trespass is not maintainable by its owner who had no right to immediate possession at the time the trespass was committed Badejo & Ors. v. Sawe (1984) N.S.C.C. 481 at 482.

It follows therefore from the foregoing, that the 1st defendant, in his capacity as Shoun, cannot maintain a suit for declaration of title or for trespass in respect of the land in dispute. This would have been enough to allow the appeal on the issue of counter claim. The trial Judge was right in dismissing the 1st defendant counter claim and the Court of Appeal in law to reverse her decision.

I now proceed to consider the issue of non-suit ground 1 reads:

The Court of Appeal erred in law in setting aside the order of non-suit made by the learned trial Judge and substituting in its place an order of dismissal of the appellant’s claims.

PARTICULARS OF ERROR

1. The Court of Appeal ought not to have limited itself to the reasons given for the non-suit by the learned trial Judge but should have considered the total admitted and admissible evidence before the court.
2. The reversal of the order of non-suit is contrary to the rule in Yesufu v. A.C.B. (1980) 1-2 S.C. 49.

In his submission, Chief Williams, S.A.N., stated that the central question for the determination of the issue was: Was the Court of Appeal correct in holding that the High Court ought to have dismissed the plaintiff’s claim for declaration of title and other reliefs claimed by him He also posed two subsidiary questions arising from the central question for consideration. They are:

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

(ii) If the answer to question (i) is in the negative, whether the plaintiff has sufficiently demonstrated that he is or he may be in a position to satisfy the court that his grantors (the Layode Chieftaincy family) are the owners of the land comprising the land in dispute in the present action. Chief Williams contended that the trial court was right in its findings of the customary law of Ogbomosho:

(1) that each of the five different ruling chieftaincy families has its own own separate land distinct from any land which can be regarded as royal estate; and

(2) that the claim of the Shoun that all land in Ogbomosho belong absolutely to the reigning Shoun is not the correct customary law of Ogbomosho.

Referring to sections 14(2) and 73(1)(i) of the Evidence Act, Kobina Angu v. Cudjoe Attah Gold Coast Reports P.C. (1874-1928), Giwa v. Erinmilokun (1961) 1 All N.L.R. 294 at 296; [1961] 1 SCNLR 377, Odufuye v. Fatoke (1977) 4 S.C. 11 at page 17 and Cole v. Akinyele (1960) 5 F.S.C. 84 at page 86 (1960)S.C.N.L.R 192, chief Williams submitted that the court might take judicial notice of the customary law prevailing in Ogbomosho from the many cases decided by the courts in which the relevant customary law had been established. He then referred us to several decisions of the Oshogbo High Court and of the Court of Appeal to the effect that a reigning Shoun has no control over all land in Ogbomosho but that each ruling chieftaincy family including the Layode Chieftaincy family has its own family land, Sijuwade, J., decided so in Okanlawon & Ors. v. Olayanju & Ors. Oshogbo High Court suit no. HOS/89/76 delivered on 24th August, 1978; also Ibidapo-Obe, J.. in Bankole v. Bala & Ors. Oshogbo High Court suit no. HOS/104/76 delivered on 10th June, 1980 and was confirmed on appeal by the Court of Appeal; Ademakinwa, J., reached the same conclusion in Ogunsesan v. Oyewunmi, Oshogbo High Court suit no. HOS/53/80 delivered on 21st March, 1983 and on appeal the Court of Appeal upheld the decision and also the Court of Appeal approved the same customary law in Bala & Ors. v. Bankole (1986) 3 NWLR (Pt.27) 141.

Chief Williams pointed out that the only decision to the contrary was in Ajao v. Ikolaba (1972) 1 All N.L.R. (Part 2) 46 wherein this court had stated that all the land in Ogbomosho belongs to the Shoun who holds all the land in trust for his people. Adopting the reasons of Ademakinwa, J., and Uche Omo, J.C.A., in their comments on the case in their respective judgments in Ogunsesan v. Oyewunmi, he further observed that although it would have been lawful and competent for any court to take judicial notice of the customary law of Ogbomosho as accepted by this court in Ajao v. Ikolaba (supra) even if that were the only decision on the matter, yet a court was not bound to accept that decision as binding. He relied on Odunsi v. Ojora (1961) 1 SCNLR 382 where Brett, F.J., observed that customary law being a question of fact in an action in the High Court, it is true that the findings are not binding in precedents. After having reviewed the records of the joint meetings of the modes, Exhibits J and J1, and the conveyances, Exhibits B to F2 inclusive, Chief Williams concluded that the totality of the judicial decisions and the evidence does not support the claim that the Shoun owns all land in Ogbomosho.

On the issue of non-suit, Chief Williams submitted on the authority of Thomas v. Holder 12 W.A.C.A. 78 at 80 in the circumstances of the case on appeal, both the trial court and the Court of Appeal erred in law in holding that the plaintiff had failed to prove his right title because he had not produced evidence of acts of ownership. With regard to the document, identification X5, Chief Williams contended that since the document was produced and tendered by the plaintiff to whom it had been sent, the trial Judge ought to have admitted it and treated it as part of the evidence on record. He urged us to hold that the plaintiff had proved his claim or in the alternative to uphold the order of non-suit.

In his response, after showing the conflict between the decision of the West African Court of Appeal in Larinde v. Afiko 6 W.A.C.A. 108 where it was held that one decision in 1892 could not be said to be frequent proof in the courts enabling the courts to take judicial notice of the particular Awori custom there in issue and the decision of the Federal Supreme Court in Cole v. Akinyele (supra) where one decision was accepted as sufficient authority to enable the court to take judicial notice of the Yoruba customary law of paternity. Dr. Ajayi responded that all the decisions of the Oshogbo High Court referred to by Chief Williams are not binding as precedents on this court.

Thereafter, learned counsel proceeded to review extensively the evidence adduced by the parties including the conveyances and the decisions in several cases relating to the customary land law in Lagos, such as Amodu Tijani v. The Secretary, Southern Provinces 3 N.L.R. 24, Oshodi v. Dakolo 9 N.L.R. 13, he submitted that the original historical approach adopted by this court in Ajao v. Ikolaba (supra) to the ascertainment of the Ogbomosho customary land law by reference to the version of that law in force when the grant there was made about the middle of the 19th century is the appropriate one to adopt in a case like the present one.

Continuing, Dr. Ajayi stated that the 1st Shoun was the original owner of all the land in Ogbomosho. But as shown by Ajao v. Ikolaba, in the ordinary course of events during the very long period of the reign of 20 Shouns, very many grants of land would have been made and as a result large numbers of members of the Ogbomosho community, whether princes, chiefs or individuals would thus have become family group or individual owners of their respective grants. He contended that the remaining land for which no grant has never been made still vests in the Shoun.

According to Dr. Ajayi, all this would not rule out the likelihood that the Layode Chieftaincy family might have been given grants of other lands in the past which they can now deal with independently. However, the land in dispute could not have been the subject of any such grants to the Layode family as the land was specifically listed in Exhibit J, as the of the divisional office, to be conveyed to the council by the Modes.

On the issue of non-suit, Dr. Ajayi, after having analysed the ratio of Craig v. Craig (1967) N.M.L.R. 52 at pages 55-56; Ferdinand George v. U.B.A. (1972) 8-9 S.C. 264 at 280-1; Gbajor v. Ogunburegui (1961) 1 All N.L.R. 853 at pages 856-7; Dawodu v. Gomez 12 W.A.C.A. 151; Olayioye v. Oso (1969) 1 All N.L.R. 281 at pages 384-385 and A.C.B. v. Yesufu (1980) 1-2 S.C. 49, contended that from the decisions of the various courts reviewed above, one would say that the following propositions have emerged:

(i) The question whether or not in a given case the proper order to make is one of non-suit or one of dismissal would depend on the particular facts of that case.

(ii) The proper order to make would be one of non-suit where-

(a) the plaintiff has not failed in toto or entirely to prove his case; and

(b) the defendant is not in any event entitled to the court’s judgment; and

(c) no wronging or injustice to the defendant would be occasioned by such an order.

(iii) The proper order would, however, be one of dismissal where-

(a) the plaintiff has failed in to-to or entirely to prove his case; and

(b) a wrong doing of or injustice to the defendant would be occasioned by the non-suit.

Applying the said propositions to the findings of the trial Judge that the traditional evidence of the parties was inconclusive and acts of ownership exercised by the plaintiff were not proved, learned counsel contended that the trial Judge ought to have dismissed the plaintiff’s claim and had erred in law in ordering non-suit. He submitted that the four reasons relied upon by the trial Judge for non-suit, namely that the plaintiffs vendors have some interest in the land in dispute although exclusive ownership was not proved by them; that the document, identification X5, was the missing link in the claim of plaintiff’s case; that the omission to put in evidence the identification X5 was not the fault of the plaintiff and that the order of non-suit would not be wronging the defendant who had conceded some proprietary right in the disputed land to the plaintiff’s vendors, do not justify making the non-suit order because none of the reasons could withstand the test of scrutiny as has been shown by the judgment of Ogundare, J .C.A.

Finally, he submitted that the Court of Appeal rightly set aside the order of non-suit and dismissed the plaintiff’s claim. It also acted rightly in setting aside the dismissal of the defendants’ counter claim and substituting therefore judgment for the defendant.

The first issue for determination is the answers to the questions whether under the customary land law of Ogbomosho all land in that area belongs to the Shoun so that anyone occupying land can only validly do so by tracing his title directly or indirectly to the Shoun or whether each of the 5 ruling chieftaincy families has its own separate and distinct land From the evidence before her, the trial Judge found that the Shoun does not own the land but that the different ruling chieftaincy families have their own separate land and distinct from any land which can be regarded as Shoun’s land. On the contrary, reviewing the same evidence and assessing it, the Court of Appeal found that the Shoun owns all the land and that any person or family having interest on any land must derive his title from a Shoun. Now, the question is which court was right

It is clear from the decisions in the numerous cases that in an action in a High Court or a Magistrate Court, customary law may be proved by evidence or it may be judicially noticed if it has become notorious by frequent proof in the courts or has been frequently followed by the courts Angu v. Attah (supra) and Giwa v. Erinmilokun (supra). As a corollary to this principle, a solitary instance of the application of a customary law to the facts of a particular case does not entitle that customary law to be judicially noticed Larinde v. Adeaye (supra) and Odufuye v. Adeoye (supra).

However, where one decision in a case establishing the existence of a particular customary law satisfies the requirements of section 14(2) of the Evidence Act, that solitary decision may be judicially noticed. The subsection provides:

14(2). A custom may be judicially noticed by the court if it has been acted upon by a court of superior or coordinate 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. In Cole v. Akinyele (1960) 5 F.S.C. 84, [1960] SCNLR 192, the Federal Supreme Court relying on the provision of the subsection took judicial notice of one single decision of Jibowu, J., and accepted the Yoruba customary law of paternity.

It appears to me there is no inconsistency in the judicial notice based on frequency of decisions and the judicial notice based on section 14(2) of the Evidence Act. The discretion to take judicial notice of a custom under the subsection is upon condition that the custom has been acted upon by a court in the same area “to an extent that 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.” (Italics mine). Consequently, unless a solitary instance of the application of a custom satisfies the requirements of the subsection, that custom is not entitled to be judicially noticed.

Now, as has been shown by Chief Williams that the customary land law to the effect that the Shoun does not own all the land in Ogbomosho but that each of the five ruling chieftaincy families has its separate land distinct from the Shoun’s land has been acted upon by courts of superior and co-ordinate jurisdiction in the area to an extent which, in my view, will justify the courts to judicially notice it. The relevant cases are Okanlawon & Ors. v. Olayanju & Ors. (supra); Bankole v. Bala & Ors. (supra); Ogunsesan v. Oyewunmi (supra); and Bala & Ors. v. Bankole (supra) in which the High Court in the same area applied the said customary land law on three occasions and the Court of Appeal did the same on two of the three cases. The Court of Appeal ought to have judicially noticed the customary law in the case on appeal as had been applied by the courts in the same area herein mentioned.

Furthermore, the Court of Appeal failed to appreciate the import of the relevance of the several conveyances in that they destroyed the 1st defendant’s claim that all land in Ogbomosho belongs to the Shoun. Exhibits B and C conveyed parcels of land to the 1st defendant before he became the Shoun by Layode chieftaincy family while Exhibit D conveyed to him another land by the Oluwusi chieftaincy family who was from time immemorial seized and possessed of the hereditament. The Olayode chieftaincy family also sold land to the 1st defendant under the conveyance, Exhibit E, which as recited therein had belonged to the family from time immemorial.

Again, the conveyance Exhibit F was executed by Shoun Olayode II and others, acting as representatives of Oloyede chieftaincy family in favour of Mrs. Akintola. It is significant to observe that one of the recitals to which the Shoun appended his signature was that:

“the Olayode chieftaincy family was from time immemorial seized and possessed of or otherwise and sufficiently entitled to the hereditament hereinafter described and intended to be granted and conveyed for an estate in fee simple absolute in possession free from incumbrances (hereinafter called “the said hereditament”)

AND WHEREAS the vendors being the heads and accredited representatives of Olayode chieftaincy family. According to dispose, lease demise, or in any way deal with the property belonging to the family”.

In the conveyance, Exhibit F1, the Layode chieftaincy family who donated land to Chief Akintola, who as donors were described in the first recital:

“the said donors are the beneficial owners entitled to the hereditament described and intended to be hereby conveyed”. Although the Shoun and the district council were parties to the execution of the conveyance, who were described therein as parties of the second part, the recital stated:

“the parties hereto of the second part have at the request of the donee and donors and assuring to the donee, the rights of ownership and disposition according to native law and custom”.

Finally, the conveyance, Exhibit G made in favour of the registered trustees of the Anglican Diocese was executed by the Shoun of Ogbomosho, Oba Emmanuel Olajide Layode II, Mogaji Oladoye Adisa of Odunaro/Layode family; Mogaji Ajiboye Ajagbe of Itabiyi family; Olaoye of Olaoye family; Mogaji Popoola Alabi of Oyewunmi family; Mogaji Oyegbile Aremu Latunji of Elepo family and Mogaji Alhaji Oseni Olusubu Oluopo of Oluopo family.

It is clear from the foregoing that the ruling chieftaincy families of Ogbomosho have been selling and donating land as the owners. The explanation given by the 1st defendant that his vendors in Exhibits B, C, D and E had been granted the lands by Shoun and they sold to him in their private capacities is not supported by the several recitals in the conveyances.

I am satisfied the contents of the conveyances are consistent with the plaintiff’s case that under the customary law of Ogbomosho each ruling chieftaincy family has its land. It remains to consider whether we ought to take judicial notice of the pronouncement made by this court in Ajao v. Ikolaba (supra) that the Shoun is the sole owner of all the land in Ogbomosho and, being the pronouncement made by the court, supersedes the statement of the customary law made by the High Court and the Court of Appeal. For this consideration. I think, it is necessary to set out the facts of the said case.

The facts were not in dispute. About 120 years ago, the ancestor of the plaintiff made a grant of a piece of land to the ancestor of the defendant upon which the latter built a house on a portion and left the portion behind the building undeveloped. The undeveloped portion was the land in dispute. The plaintiff, a descendant of the grantor sold it and when the purchaser attempted to build on it the defendant resisted. The plaintiff then claimed the land for declaration of ownership.

In dismissing the claim, the Customary Court stated as follows:-

“The land in question was in fact belonged (sic) to Chief Ikolaba Aladon family (plaintiff), the same allotted to them by the Shoun of Ogbomosho over a century ago. According to custom, the Shoun used to allot parcels of land to everyone of his senior chiefs (known and called Ilu Ogbomosho) to hold in trust and to allot to any members of a family or individuals who may come after… Both the plaintiff and the defendant stated and agreed that the land was given to the ancestors of the defendant about 120 years ago and the family had been in possession and in proper care of the site since then. These parties are the fourth generation if not more since the defendants’ family had been on the land. According to custom, whatever has been given should not be taken back by his or her descendants. “lgi ti baba ba gbin, omo ki tu.” The customary tenancy cannot allow the plaintiff to recover the land in the suit … Any move to deprive the defendants of the ownership of the land is most unfair and unjust and does not have the backing of our custom. The defendant should continue to pay customary homage to the plaintiff’s family as usual. The claim of the plaintiff is dismissed. It is quite clear that the only issue for determination in the case was whether under the customary law of Ogbomoso a grantor of land can revoke the grant and can maintain an action for declaration of title over the land. In upholding the decision of the Customary Court on appeal, the High Court aptly stated:

“Then the questions are:

(1) can plaintiff take back land which was granted to the defendants’ ancestors by plaintiff’s ancestors

The answer is “no”. The second question is in what circumstances can land granted away revert to grantor Reversion can take place under native law and custom, in certain circumstances, e.g. where grantee abandons the land or where grantee dies intestate without issue or relatives. The facts in this case do not show abandonment or extinction of defendant’s family by death. So plaintiff’s claim has been properly dismissed. The appeal fails”. However, this court in addition to deciding the issue in the negative, went on excursion tour of the general concept of land tenure in native law and custom including the roman law.

In my view, the ratio decidendi in Ajao v. Ikolaba is no more than that under the Ogbomoso customary law, a grantor of land has no right to revoke the grant without lawful justification and that he is not entitled to a declaration of title over the land. All the other pronouncement made by the court were obiter dicta which are not binding as precedents. Accordingly, the obiter dicta cannot be judicially noticed as the correct statement of the customary law of Ogbomoso.

In conclusion, I hold that it is not correct that under the Ogbomosho customary law, the Shoun owns all the land in Ogbomosho but that each ruling chieftaincy family has its separate land over which it has exclusive control. For this reason, the counter claim of the 1st defendant ought to have been dismissed also.

I now proceed to consider the issue of non-suit. I am indebted to Dr. Ajayi for his industry as disclosed by his brief in which he reviewed the relevant decisions of the West African Court of Appeal and this court on the matter. I agree with his propositions, which I have earlier on set out in this judgment. They are resume of the statement of the law in African Continental Bank v. Chief Yesufu (1980) 1-2 S.C.49, wherein this court comprehensively considered the circumstances for non-suiting a plaintiff or dismissing his claim.

I have indicated earlier that the Court of Appeal set aside the order of non-suit for two reasons. Firstly, although the trial Judge had found that the plaintiff’s vendors had been shown to have some interest in the land in dispute, exclusive ownership had not been proved by them. Accordingly, the Court of Appeal concluded on that score that the vendors could not have passed a valid title to the plaintiff. Secondly, the Court of Appeal held that it was wrong for the trial Judge to rely on identification X5, which was not in evidence, in making the order of non-suit.

I agree that the trial Judge erred in law in heavily relying on identification X5, which was not in evidence Gbajor v. Agunburegui (1961) 1 All N.L.R. 853 at 856. In spite of this error, I think the circumstances of the case justify the order of non-suit.

It is pertinent to reiterate the findings of the trial Judge. She found that the Layode chieftaincy family, the vendor of the plaintiff, had some interest in the land in front of the district office, part of which is the land in dispute. But because there was no evidence of the boundary between the field in front of the district office which the Modes had agreed to convey to the district council and the land in dispute abutting the field, the trial Judge could not determine the extent of the land in dispute. Her observation in this regard may be reiterated:

“As at the time the meeting in Exhibit JI was held on 7th September, 1972, the land in dispute which from the plan Exhibit ‘A’ is the land in front of the divisional office had not been sold to the plaintiff. There is no specific mention of the field in front of the divisional office in Exhibit JI as was done in Exhibit J at an earlier meeting.

In view of the fact that there is no comprehensive plan of the entire land belonging exclusively to the Layode chieftaincy family before the court, it is difficult to distinguish the land conveyed to the plaintiff from the adjacent lands which are under the control of the Modes who seem to have joint authority over the properties to be conveyed to the council. This is very essential in view of the fact that parties have joined issues in their pleading on question of absolute ownership of the land in dispute by Layode family”.

The positions of the parties may thus be summarised: the plaintiff has shown that he has acquired some interest in the land abutting the field belonging to the district council. So, the plaintiff has not failed in toto in his claim. On the contrary, as I have shown in this judgment, the 1st defendant has no interest whatever in the land in dispute. Although the 2nd defendant ought to be an active party in the determination of at least the boundary between its field and the land in dispute, apart from filing the statement of defence for reason best known to it, it chose to be passive and indifferent throughout the case from the trial court to this court. This being the case, neither of the defendants is entitled to judgment.

Under the circumstances, in my view, no wrong or injustice will be done to the defendants by the order of non-suit. On the other hand, injustice may be done to the plaintiff by the dismissal of his claim as he may lose the very interest in the land in dispute which he has acquired. I find the circumstances laid down by African Continental Bank v. Yesufu (supra) for the order of non-suit have been satisfied.

Accordingly, the appeal is allowed. I set aside the judgment of the Court of Appeal dismissing the plaintiff’s claim and I restore the order of non-suit made by the trial court. I also set aside the judgment of the Court of Appeal entered for the 1st defendant and restore therefore, the judgment of the trial court dismissing his counter claim. The costs of N500 of the trial and N450 of appeal awarded to the 1st defendant by the Court of Appeal are hereby set aside.

In the trial court, the Judge awarded N100 costs each to 1st defendant and the plaintiff for the main action and the counter claim respectively. This tantamount to making no order as to costs. Accordingly, I shall make no order as to costs in the trial court. The plaintiff is entitled to N500 costs in this court.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of judgment just delivered by my learned brother, Bello, C.J.N. I agree with him in his opinions on all the issues for determination in this appeal. I therefore agree with him that the appeal be allowed and the decision of the Court of Appeal set aside. In its stead, the following shall be the judgment of the court:

(1) The counter claim of the respondent against the appellant is hereby dismissed:

(2) There shall be an order of non-suit against the plaintiff/respondent in respect of his claim.

The appellant is entitled to the costs of this appeal in the court below, i.e. Court of Appeal fixed at N450.00 and in this court fixed at N500.00.

However, two points deserve my additional comments by way of emphasis. They are the incompetence of the counter claim and the question for decision in Samuel Ajao v. Ikolaba (1972) 1 All N.L.R. (Pt.2) 46.

In the High Court at Ibadan Oyo state. the plaintiff/appellant claimed against the respondent:

“(1) A declaration of title in fee simple or alternatively under native law and custom to all that piece or parcel of land situate, being and lying at Layode Street, Masifa, Ogbomoso in Oyo state of Nigeria and covered by a deed of conveyance dated the 30th January, 1973and registered as no. 25 at page 26 in volume 1452 of the lands registry in the office at Ibadan and plan No. OB2705 dated 8th January, 1977

(2) N5,000.00 being damages for trespass committed by the defendant, his agents or servants at various times in 1974 on the said land:

(3) Perpetual injunction restraining the defendant, his agents or servants from committing further acts of trespass. Annual rental value is N200.00

The first respondent in his statement of defence and counter claim set up his counter claim in paragraphs 30, 31, 32, 33 and 39 as follows:

30. The defendant counter claims the whole area verged RED on survey plan No.LL8110 attached to this statement of defence which includes the land in dispute.
31. The land belongs to the Shoun of Ogbomoso under native law and custom from time immemorial by settlement. Before the grant referred to in paragraphs 7 and 8 above, the successive Shouns allowed the Hausa people at Sabo in Ogbomoso to tend their animals thereon.
32. The defendant seeks perpetual injunction restraining the plaintiff, his servants from committing further acts of trespass on the land in dispute.
33. The defendant counter claims N8,000.00 damages for trespass committed on the land since 1973 and continuing up to date by the plaintiff.
34. The Ogbomoso Local Government council are on the land claimed by the defendant at the instance of the defendant as Shoun.

Paragraphs 7 and 8 referred to in paragraph 31 of the statement of defence of the 1st defendant/respondent read:

7. The land now in dispute forms part of the land which the late Oba Olanipekun Laoye II as Shoun of Ogbomoso granted to Ogbomoso muslims for the building of the Ansar-Ud-Deen School, Masifa, Ogbomoso sometime in 1951. The grant was made under native law and custom.
8. The said land in dispute is part and parcel of the land granted later by late Oba Olatunji Elepo II as Shoun of Ogbomoso to the Ogbomoso Local Government Community in 1954 out of the large piece of land granted by his predecessor to the muslim in paragraph 7 above.

From the facts set out, pleaded by the 1st defendant/appellant in his statement of defence and counter claim, there is no basis for the claim by the 1st defendant. The pleadings disclose that neither the title to the land nor possession of the land is in the 1st defendant/appellant to found a cause of action.

Where “A”, an owner of a parcel of land grants the parcel of land to a third person and puts that third person in possession of the land and another person “C”, sets up an adverse claim against the grantee, A cannot set up a claim of ownership of the land and damages for trespass. “A” no longer has any interest in the land which can be threatened by the action of “C” See Sanyaolu v. Coker [1983] 1 SCNLR 168 at 181.

It is only a person in possession or who has a right to possession who is entitled to prosecute a claim for damages for trespass. See Amakor v. Obiefuna (1974) N.M.L.R. 311; (1974) 3 SC 67, Atunrase v. Sunmola (1985) 1 N.W.L.R. (Pt.1) 105, Adeshoye v. Shiwoniku 14 W.A.C.A. 86, Tongi v. Kalil 14 W.A.C.A. 331

By way of emphasis, I will add the following comment on Ogbomoso customary law on land tenure and the import of Samuel Ajao v. Ikolaba (1972) 1 All N.L.R. (Pt.2) 46. The totality of the oral and documentary evidence before the High Court do not support the contention of the 1st respondent that all land in Ogbomoso is vested in the Shoun and that title to any piece of land in Ogbomoso can only be acquired from the Shoun alone. The opposite contention appears to be the customary law, i.e. families other than the Shoun own land and can transfer their title in land to lessees and purchasers.

It is the correct state of the customary land law to say that parcels of land vested in the Shoun, in trust for the community, can be transferred by him and parcels of land owned by the five ruling houses in Ogbomoso can only be transferred by the Mogaji and other principal or accredited representatives of each of the five ruling houses.

The ascertainment of the customary law governing land tenure in Ogbomoso can only be in accordance with section 14(2) and (3) of the Evidence Act. Customary law is a question of fact to be ascertained and proved by evidence in the Magistrates Court and High Courts where the procedure is governed by the Evidence Act. Taiwo v. Dosunmu (1966) N.M.L.R. 94; Otogbolu v. Okeluwa (1981) 6-7 S.C. 99 at 115-116; Chukwueke v. Nwankwo (1985) 2 N.W.L.R. (Pt.6) 195 at 206-208. Where, however, there are decisions of superior courts where the customary law has been settled, ascertained or established, judicial notice of the customary law so established must be given. See section 14(1) and section 73(3) Evidence Act.

The question for determination in Samuel Ajao v. Ikolaba (supra) did not call for a determination of the customary law on acquisition and transfer of title to land in the whole of Ogbomoso. The question for determination was whether Chief Ikolaba, a chief under the Shoun of Ogbomoso and an agent of the Shoun for plot allocation can claim title as owner to the parcel of land so allotted as agent of the Shoun. The Supreme Court, this court, reversing the Western State Court of Appeal, held that he cannot claim title to the said parcel of land and if it reverts the title, reverts to the Shoun. The other portion of the judgment dealing with customary law on land tenure generally and comparison with roman law was not the issue for determination. It was obiter.

The trial court, i.e. the High Court and Court of Appeal have therefore not committed a breach of the doctrine of stare decisis which has formed the basis of the development of our case law when they failed to accord it the status of a decision establishing the customary law regulating the acquisition and transfer of all land title in Ogbomoso entitled to judicial notice. On the proper construction of section 14(2) and (3), courts are only to enforce existing customary law accepted by the people as binding on them not the customary law of bye gone days. Lewis v. Bankole (1908) 1 N.L.R. 81 at 83.

The trial court has a duty to make findings of fact from the evidence of customary land law before it and that was what the court below did. In Otogbolu v. Okeluwa (supra), this court held that the general principle of communal ownership as pronounced or laid down in Amodu v. Secretary Southern Nigeria (1921) A.C. 399 at 404 would not apply where it is established by evidence that personal ownership of land is permitted in a particular area by the relevant customary law.

Apart from this additional comment, I have nothing to add to the lucid judgment of my learned brother, Bello, C.J.N., with which I am in full agreement. I hereby commend the scholarship and industry exhibited by counsel in the briefs filed on behalf of the parties.

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SC.178/1987