Lasisi Morenikeji & Ors V. Laleke Adegbosin & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

By a writ of summons issued on the 14th day of January, 1985, the plaintiffs, for themselves and on behalf of the Morenikeji family of Ibadan in Oyo State instituted an action jointly and severally against the defendants at the Ibadan Judicial Division of the High Court of Justice, Oyo State claiming as follows:

“(1) Fifteen Thousand Naira (N15,000.00) being damages for trespass committed by the defendants, their servants and agents in that piece or parcel of land, situate, lying and being at Aladun Ile Titun village, Ife Road, Ibadan in Oyo State of Nigeria in 1984 which land is more particularly described and delineated on a plan to be filed later in this case.

(2) Injunction restraining the defendants, their servants, agents, privies or anyone claiming through them, from committing any or further acts of trespass on the said piece or parcel of land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, both parties testified on their own behalf and called witnesses.

The plaintiffs relied primarily on evidence of traditional history in proof of their claims to ownership and possession of the land in dispute. They also relied on a previous judgment in suit No. 1/64/84 as issue estoppel and/or res judicata against the defendants.

In their traditional history, the plaintiffs claimed to be the direct descendants of one Delesolu to whom they traced their title to the land in dispute. They claimed that they were the descendants of the said Delesolu through his daughter, Iwolowa, the mother of Morenikeji, their grandfather. They asserted that the land in dispute was originally settled upon by one Balogun Oderinlo, a great Ibadan warrior during the reign of Bashorun Oluyole. They claimed that the said Oderinlo made a grant of a large parcel of land including the land in dispute to Delesolu, another warrior from Abeokuta, who served under Oderinlo. Delesolu married Sikako and Sikako begat a daughter by name Iwolowa for Delesolu. Iwolowa married Lofintolu and they had a child called Morenikeji who was the progenitor of the plaintiffs. The farmland at Aladun Ile Titun village was granted by Delesolu in his life time to Iwolowa, his daughter. This farm land which includes the land in dispute was inherited by Morenikeji and the ownership and possession thereof have remained with the descendants of Morenikeji who are the plaintiffs in this case. It was Morenikeji who commenced the development of the village called Ile Titun after inheriting the land at Aladun from his mother. It is the plaintiffs’ case that after the death of Delesolu, Ojuolape who was his military colleague and friend, appointed one Lajinfin as caretaker of all the personal property of Delesolu at Oje, Ibadan. As a result, Lajinfin moved into Delesolu’s compound at Oje but seized virtually all belongings of Delesolu including his wives, slaves, goods etc. The plaintiffs stressed that Lajinfin was neither related to nor was he a descendant of Delesolu. He was only a caretaker of Delesolu’s properties at Oje, Ibadan as all the children of Delesolu at the time of his death with the exception of Iwolowa, his daughter, had predeceased him.

The defendants, for their part, resisted the claim of the plaintiffs. They, in turn, also claimed to be the descendants of Delesolu from whom they asserted they derived title to the land in dispute. In this regard, they relied on traditional history for their claim to title to the land in dispute. They claimed to be in possession of the land in dispute. With regard to their traditional history, the defendants asserted that Delesolu and Lajinfin were brothers of full blood who came to lbadan from Ogbomoso and jointly settled on the land in dispute when it was a virgin forest. They emphasised that Delesolu had no relationship with the plaintiffs or their ancestors. Both brothers adopted Delesolu as their common name because Delesolu was the elder brother of Lajinfin. After the death of Delesolu without any issue, his junior brother Lajinfin inherited all his properties which included his land and wives. They claimed that the defendants’ family is known as Delesolu as against the plaintiffs who are known as Morenikeji family. Exhibit J, report of an enquiry by the Secretary of Lagelu Local Government was tendered by the defendants. It was allegedly declared in it that the defendants were members of the Delesolu Family and that the plaintiffs were not. They asserted that the ownership and possession of the land at Aladun were in Delesolu and his descendants, the defendants, and not in the plaintiffs who are not descendants or members of the Delesolu family. The defendants testified as to how their ancestor, one Abioye, granted part of the land in dispute to Adeoye, one of the plaintiffs’ ancestors to plant food crops and how the plaintiffs forfeited the land when their ancestors failed to pay their rent otherwise called Ishakole. However, during the time of Suara Layiwola as head of Delesolu family, defendants’ family re-allocated the land back to the Morenikeji family for farming purposes by an agreement dated 27th April, 1968, exhibit M.

It is thus clear both from the pleadings of the parties and their evidence before the trial court that each side claimed ownership and possession of the land in dispute relying on their various traditional histories. Indeed, the defendants, for their own part, raised a counterclaim against the plaintiffs in which they claimed as follows:

“(a) A declaration that the 1st, 2nd & 4th defendants are members of Delesolu family.

(b) A declaration that the plaintiffs are not members of Delesolu family.

(c) A declaration that the land in dispute is beneficially in possession of Delesolu family except those portions granted to various families as indicated on the plan attached to the statement of defence and counter-claim.

(d) An orderfor possession ofthe area edged by doted blue lines on defendants’ plan and on which the plaintiffs planted food crops as caretakers for denying the defendants’ title.”

At the conclusion of hearing, the learned trial Judge, Alao, J. after a review of the evidence on the 11th day of September, 1987 was in no doubt that title to the land in dispute was seriously in issue between the parties. He also recognised that both parties, following the decision of this court in Idundun and others v. Okumagba & others (1976) 1 NMLR 200, sought to prove their title to the land in dispute by evidence of traditional history. He found that the evidence of traditional history adduced by both parties was clearly conflicting. This conflict he proceeded to resolve by stating that he preferred the evidence of traditional history of the defendants to that of the plaintiffs. In the circumstance, the learned trial Judge dismissed the plaintiffs’ claims. He, however, granted the defendants’ counter-claim to the extent that the plaintiffs together with the 1st, 2nd and 4th defendants are members of the Delesolu family and that they were lawfully farming on the land. He held that suit No. 1/641/84 did not constitute issue estoppel or estoppel per rem judicatam. He concluded:

“In all, I make the following Orders:

(i) The plaintiffs’ claim for damages in trespass and injunction fails and it is dismissed.

(ii) The first leg of the counter-claim succeeds and I hereby declare that the 1st, 2nd and 4th defendants are members of Delesolu family.

(iii) The second leg of the counter-claim that the plaintiffs are not members of Delesolu family fails and it is dismissed.

(iv) Declaration that Delesolu family except for portions of the land in dispute granted to various families has been in possession of the land in dispute.

(v) The defendants’ claim for forfeiture of the plaintiffs’ holding of the land in dispute fails and it is dismissed.”

Being dissatisfied with this judgment of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Ibadan Division. The defendants were similarly dissatisfied with the judgment and they, too, cross-appealed against the same.

At the conclusion of hearing of the appeals, the Court of Appeal on the 17th day of March, 1994 dismissed the plaintiffs’ appeal. The defendants’ cross-appeal succeeded in part to the extent that it was declared that the plaintiffs are not members of the Delesolu family. The Court of Appeal affirmed the decision of the trial court on the issue of the traditional evidence before the court although it observed that having rejected the plaintiffs’ traditional history, the trial court was in error to proclaim the plaintiffs members of the Delesolu family. The Court of Appeal concluded thus:

“In the final conclusion, I make the following orders:

(1) The main appeal fails and I dismiss it accordingly.

(2) The cross-appeal partially succeeds. The declaration by the lower court that the plaintiffs are members of Delesolu family is set aside. In its place I declare that the plaintiffs are not members of Delesolu family.

(3) I affirm the order of the lower court dismissing defendants’ claim for possession on the ground that the plaintiffs have incurred forfeiture.

(4) I award in favour of the defendants costs assessed and fixed at N1,200.00.”

Aggrieved by this decision of the Court of Appeal, the plaintiffs have further appealed to this court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the appellants and respondents respectively.

The parties pursuant to the Rules of this court filed and exchanged their written briefs of argument.

The one issue distilled from the appellants’ grounds of appeal set out on their behalf for the determination of this appeal is as follows:

“Whether the Court of Appeal was right in affirming the decision of the learned trial Judge rejecting the traditional evidence of the plaintiffs and accepting that of the defendants without recourse to recent acts of possession.”

The respondents in their brief of argument adopted the same issue formulated by the appellants for the determination of this appeal.

I think the single issue formulated by the parties for resolution goes to the root of the main question between them and is enough for the determination of this appeal.

At the oral hearing of the appeal before us, learned counsel for the appellants, L. A. Owolabi, Esq. adopted the appellants’ brief of argument. In it, the appellants argued that the Court of Appeal was in definite error by affirming the decision of the trial court which rejected the traditional evidence led by the appellants and accepted that of the respondents without having recourse to acts of recent possession and/or facts in recent years as established by evidence. In this regard, learned counsel placed reliance on the decision of Her Majesty’s Privy Council in Kojo II v. Bonsie & Another (1957) 1 WLR 1223, a decision which received the approval of this court and has since been applied in a number of subsequent other decisions of this court. He urged the court to allow this appeal.

Learned counsel for the respondents, Chief O. A. Ogundeji, in his reply, also adopted the respondents’ brief of argument. He submitted that this is a case where the two courts below accepted the traditional history of the respondents and rejected that of the appellants. He referred the court to the decision of this court in the case of Biariko v.Edeh-Ogwuile (2001) 4 SCNJ 332; (2001) 12 NWLR (Pt. 726) 235 and he contended that the concurrent findings of fact by both courts below automatically concluded the matter. He was of the view also that the case of Kojo II v. Bonsie & Another (supra) is inapplicable to the facts of this case. He therefore urged the court to dismiss the appeal.

Learned counsel for the appellants in his final submissions argued that this is a case where the traditional histories of both parties are clearly in conflict. He contended that on the showing of the learned trial Judge, the two traditional histories relied upon by the parties were not only conflicting but inconclusive. He submitted that the traditional evidence of the parties in controversy did not concern primary facts which the witnesses actually saw and/or observed themselves in their lifetime. He pointed out that the evidence in question concerned traditional history, pure and simple, of events that allegedly occurred well over a hundred years ago. Accordingly, he submitted, the matter could not be resolved by watching the demeanour of witnesses while they testified in the witness box or believing and disbelieving various areas of the traditional evidence as the trial court would appear to have done in this case. He argued that in a situation such as is the case in the present appeal, the trial court would be left with no option but to test the traditional histories of the parties by reference to facts in recent years as established by evidence with a view to identifying which of the two conflicting histories is the more probable. This, the trial court failed to do before it embarked upon its purported findings of fact. He submitted that the Court of Appeal was equally in error by affirming those findings of the trial court on the question of the traditional histories of the parties which were arrived at arbitrarily and without any regard to the appropriate applicable law. He therefore urged the court to allow this appeal.

I think the starting point in the resolution of the single issue for determination in this appeal is to observe that although the appellants founded their claims in trespass and perpetual injunction, it is crystal clear that what was in issue, having regard to the pleadings of the parties and the evidence before the court, was title to the land in dispute. It is trite law that only a person who at all material times is in possession of land in dispute can maintain an action for damages for trespass thereon. See Olagbemiro v. Ajagungbade (1990) 3 NWLR (Pt. 136) 37; Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661. Where, however, as in the instant case, two parties are on a piece or parcel of land claiming possession, the possession being disputed, trespass will lie at the suit of that person who can show that title to the land is in him. See Awoonor Renner v. Annah Daboh (1934-1935) 2 WACA 258; Umeobi v. Otukoya (1978) 4 SC 33. Similarly, where in a trespass action, the real issue, as in the present action, is one of title to the land in dispute, the plaintiff, to succeed, must establish his title to and legal possession of such land in addition to the defendants’ alleged acts of trespass on such land. See Samuel Nelson v.Ammah 6 WACA 134; Alhaji Aromire & others v. J. J. Awoyemi (1972) 1 All NLR 101; Vincent Okorie & others v. Philip Udom & others (1960) 5 FSC 162; (1960) SCNLR 326. So, too, whenever a claim for trespass is coupled with a claim for perpetual injunction, as in the present action, the title of the parties is automatically put in issue. See Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508 at 515; Vincent Okorie & others v. Philip Udom & others (supra); Abotche Kponugbo v. Kodadja 2 WACA 24; The Registered Trustees of the Apostolic Church v. Olowolemi (1990) 6 NWLR (Pt. 158) 514 etc.

In the present action, not only is what is in issue between the parties title to the land in dispute, not only are both parties claiming to be in possession of the land, possession thereof being disputed, not only is the plaintiffs’ claim in trespass coupled with a claim for perpetual injunction, it is clear to me that the courts below were right to have given due attention to the all important question of which of the two parties established its title to the land in dispute and was therefore in legal possession thereof. See too Ogunfaolu & Another v. Adegbite (1986) 5 NWLR (Pt. 43) 549.

As I have already stated, both parties in proof of their title to the land in dispute relied on evidence of traditional history. This is perfectly in order as evidence of traditional history, where this is not contradicted or in conflict and where it is found by the court to be cogent, plausible and/or conclusive can on its own support and/or sustain a claim for declaration of title to land. See Alade v. Lawrence Awo (1975) 4 SC 215 at 228; Olujebu of Ijebu v. Oso (1972) 5 SC 143 at 151. See too Idundun & Others v. Okumagba & Others (1976) 9-10 SC 227 where this court set out the five methods of proving title to land and emphasised that each of those five methods will suffice, independently of the others, to prove title to land. See also Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 and Okonkwo v. Okolo (1988) 2 NWLR (Pt. 79) 632 at 656.

In the present case, it is clear that the traditional histories relied upon by both the appellants, of the one part, and the respondents, of the other part, were patently in conflict and irreconcilable. No doubt, both parties claimed to be related to Delesolu from whom they derived their title to the land in dispute. But the appellants who claimed to be the direct descendants of the said Delesolu asserted that the land in dispute formed portion of the land originally settled upon by one Balogun Oderinlo, a great lbadan warrior during the reign of Bashorun Oluyole. They claimed that the said Balogun Oderinlo subsequently granted the land in dispute to Delesolu, a trusted warrior under him. The appellants’ case is that they are the descendants of Delesolu through his daughter, Iwolowa, the mother of Morenikeji, their grandfather and progenitor. They claimed that on the death of Delesolu, one Ojuolape, his friend, appointed one Lajinfin as caretaker of Delesolu’s properties which appointment Lajinfin duly accepted. The appellants emphasised that the said Lajinfin was neither related to nor was he a descendant of Delesolu. He was only a caretaker of Delesolu’s properties as the latter’s children at the time of his death had all died with the exception of Iwolowa his daughter. The appellants claimed that Iwolowa begat Morenikeji and that after the death of the former, Morenikeji inherited the land in dispute from Iwolowa. It is their case that the ownership and possession of the land in dispute have till this day remained of Morenikeji who are the plaintiffs/appellants in this case. They also asserted that the respondents have no relationship or connection of whatever nature with the Delesolu family.

The defendants/respondents, on the other hand, also claimed to have descended from the said Delesolu family. Whilst, however, the appellants maintained that Lajinfin was no blood relation of Delesolu, the respondents asserted that Lajinfin was the junior brother of full blood of Delesolu, and that Delesolu had no relationship whatsoever with the appellants or their ancestors. It is their case that Delesolu and Lajinfin were brothers who came to Ibadan from Ogbomosho and jointly settled on the dispute when it was still a virgin forest. The respondents asserted that Delesolu became seized of the land in dispute by settlement and not by grant as the appellants alleged. They claimed that after the death of Delesolu without any issue, his junior brother Lajinfin became the head of the Delesolu family and was in full control of the land in dispute. They asserted that at no time was Lajinfin a stranger to Delesolu family as the appellants stated. They asserted that the ownership and possession of the land in dispute were in Delesolu and his brother Lajinfin and that the respondents as their descendants are now the owners in possession of the land in dispute. They vehemently denied that the appellants are members of the Delesolu family.

It is apparent from the above accounts and from the judgment of the learned trial Judge that there was definite conflict in the traditional histories projected and relied upon by the parties. The learned trial Judge fully recognised this conflicting nature of the traditional histories presented before him by the parties at the trial. Having meticulously set out the two versions of the traditional histories relied upon by the parties, he queried as follows:

“Out of this conflicting traditional evidence, which one is true and acceptable to this court”

He then proffered an answer thus:

“The court’s approach to resolving the conflict in traditional evidence is found in the opinion of their Lordships in the Privy Council in Kojo vs. Bonsie & Others. (1957) 1 WLR 12 at Pages 1226 – 7 as follows:

‘where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case a demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is more probable.’”

The crucial question now is whether this approach which the trial court expressly decided to adopt in the resolution of which of the two competing histories is more probable was right and, if so, whether such an approach was in fact followed by the court to resolve this vital issue before it.

It is plain to me that the approach enunciated by the trial court for the resolution of the conflict in the traditional histories of the parties before it and determining which of them is more probable is clearly without fault and is fully backed by the authorities. It is long established that where there is a conflict of traditional history, which has been handed down by word of mouth from the ancestors or forefathers of the parties, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, it is firmly recognized that the demeanour of witnesses is little guide to the truth of the matter as in the course of transmission from generation to generation of the traditional history, mistakes may occur without any dishonest motives. Accordingly, the law is well settled that the best way to determine which of the competing traditional histories is more probable is to test them by reference to the facts and/or events in recent years as established by evidence. See Kojo II v. Bonsie & Another (1957) 1 WLR 1223 at 1227 per Lord Denning. See too Ikpan v. Edoho (1978) 6 – 7 SC 221; Adenle v. Oyegbade (1967) NMLR 136 etc. Equally well settled is that it is erroneous on point of law to determine the veracity or otherwise of such conflicting traditional histories solely on the demeanour of witnesses. See too Alhaji Adisa Thani & Another v. Saibu & others (1977) 2 SC 89 at 110.

In this regard a distinction must be drawn between the mode of assessment of the credibility of witnesses with regard to primary facts, that is to say, facts which the witnesses actually saw and/or observed with their own eyes or knew from their own personal knowledge as against evidence of traditional history which had been handed down by word of mouth from generation to generation from the forefathers of the witnesses. With regard to the former, the bearing and demeanour of witnesses among other factors are clearly of relevance in the determination of the veracity of the witnesses that testified on such primary facts. In the case of the latter, however, the demeanour of witnesses is little guide to the truth and the best way to resolve conflicting traditional histories is to test such histories by reference to facts in recent years as established by evidence to see which of the two competing histories is the more probable. See Kojo II v. Bonsie & Another (supra). A trial court may accept or reject part of the evidence of witnesses who testified on primary facts within their personal knowledge. It may not, however, accept part and reject part of a traditional history as traditional evidence cannot be treated as evidence of a witness given on matters within living memory.

In the present case, the main dispute between the parties was as to their traditional histories which had been handed down by word of mouth from their forefathers. It is plain from the evidence that there was conflict between the traditional histories presented before the court by the parties in proof of, their respective claims of title to the land in dispute. Both traditional histories were ex facie plausible. It did not also appear from the evidence before the court that either of them was inherently incredible and/or self contradicting. I think the learned trial Judge was right in the formulation of the approach he proposed to adopt in the case with a view to determining which of the two conflicting traditional histories relied upon by the parties was more probable. This, he stated and, quite rightly in my view, was to test the traditional histories by reference to facts and/or events in recent years as established by evidence and to see which of the two competing histories is more probable. The next question must be whether the learned trial Judge, in fact, applied this approach in his resolution of which of the two conflicting histories was more probable.

It is indisputable from the judgment of the learned trial Judge he had stated that in the face of the conflicts in the traditional evidence of the parties, he would be obliged to test the two competing histories by reference to facts in recent years. He did not, however, consider any such facts or events in recent years before he purported to accept the traditional history put forward by the respondents and rejected that of the appellants. This point was also conceded by the court below when in its leading judgment per Oguntade, J.C.A., it was stated as follows:

“I pause here to make some observations about the above findings of the trial Judge.

It will be seen that although the trial Judge had said that if there was a conflict in traditional history, the court should test the history by reference to the facts in recent years. He did not in fact consider any events in recent years before he went on to accept the traditional history as told by the defendants.”

What the trial court did after setting out the correct position of the law was to enter into a litany of “I believe”, “I find as a fact”, “I accept”, “I do not accept”, “I prefer” in respect of the various factual aspects of the traditional histories presented by the parties. I think the trial court, with respect, was in grave error in this regard.

The Court of Appeal, for its own part, affirmed the said judgment of the trial court by stating, in the first place, that the trial court found the traditional history told by the appellants “incredible”. Said the Court of Appeal:

“The lower court clearly demonstrated in the judgment the reason why it found the traditional history told by the plaintiffs incredible. The plaintiffs had through 1st plaintiff said that Ojuolape, a friend of Delesolu, brought a stranger, Lajinfin to become caretaker of Delesolu’s properties and that as such caretaker:

‘Whatever Lajinfin saw in the place where he was asked to guide were seized as his own. These included men, women, slaves and goods.’

This was as against the evidence of DW13 which ascribed Lajinfin’s role to his position as the junior full blooded brother of Delesolu with whom he co-founded Aladun.

I think the lower court had been mistaken in calling in aid the approach stated in Kojo II v.Bonsie (supra) when it was able to conclude that the defendants’ traditional history was conclusive. The error is in my view innocuous and did not occasion a miscarriage of justice.”

With profound respect to the Court of Appeal, I have given a close study to the judgment of the learned trial Judge and can find no where that he described the traditional evidence presented by the appellants as incredible. What the learned trial Judge did, as I have earlier observed, was to state the applicable law correctly where two conflicting traditional histories are before the court. But, inspite of this, he did the opposite of what he rightly considered to be the correct thing to do in the circumstances. Without in fact considering any events in recent years, he went ahead to believe and disbelieve various aspects of the conflicting of the parties. As I have stated, he was clearly in error in this regard.

In the second place, it is evident from the judgment of the court below that it faulted in a number of areas the decision of the trial court with regard to its treatment of the traditional histories of the parties. The Court of Appeal stated:

“I think the trial Judge exposed his judgment to a deserved attack because he failed to determine the case as the evidence called warranted. The plaintiffs called traditional evidence. The defendants similarly did. Each of the traditional histories called by the parties can be likened to a package. The court had to accept one package or the other. Once the court accepted a package, it also accepted fully the contents of the package. A court could not broach the package it had accepted and then reject some of its contents. The plaintiffs’ traditional history incorporated the following facts:

That Oderinlo made a grant of the land in dispute to Delesolu, that Delesolu married Sikako who begat Iwolowa for him; that Iwolowa married Lofintolu; that Iwolowa had a son Morenikeji for Lofintolu, that Delesolu gave Iwolowa and Lofintolu the parcel of land at Aladun village.

In the same way the defendants’ traditional history incorporated the following elements:

That Delesolu and Lajinfin first settled upon the land in dispute;

That Delesolu married Igbayinnike;

That Igbayinnike did not have any issue; that Lajinfin inherited Igbayinnike and had two children by her, that Lajinfin had eight other children; that Morenikeji was not related to Delesolu and that the defendants are the descendants of Delesolu and Lajinfin.

The lower court rejected the traditional history of the plaintiffs. It held that the traditional history of the defendants was conclusive. Having rejected the traditional history of the plaintiffs, the lower court could not turn round to fragment the same traditional history and accept some of its component elements………… I am of the view that the lower court was in error to have made the finding that Iwolowa was the daughter of Delesolu and that the plaintiffs were members of Delesolu family when it had earlier rejected the whole of the traditional history called by the plaintiffs.”

A little later in its judgment, the Court of Appeal launched a further attack on the decision of the trial court with regard to the traditional histories in question. It said:

“The defendants traditional history which the lower court earlier accepted had elements which made it impossible to accommodate the finding that Iwolowa was a daughter of Delesolu……………………… The findings that Iwolowa was the daughter of Delesolu and that the plaintiffs are members of Delesolu family are perverse in the circumstances. I accordingly set aside the findings.”

The point cannot be over emphasised that neither the trial court nor the court below can without legal justification turn round to fragment the traditional histories presented by the parties and accept or reject some of its component elements. I entirely agree that each of the traditional histories called by the parties may be likened to a package and that the court, having complied with the provisions of the law, was entitled to accept one package or the other. It may not however broach the package it had accepted and then reject some of its contents. This is another area both courts below erred in the matter of the traditional evidence of the parties in the present case. More importantly, however, the point must be stressed that the court below was equally in error when it affirmed the decision of the trial court on the issue of which of the two competing traditional histories was more probable when the said trial court did not test the traditional evidence in issue by reference to facts and/or events in recent years as established by evidence. See too Aikhionbare & Others v. Omoregie & Others (1976) 12 SC 11.

Attention must be drawn to the decision of the court below to the effect that the trial court was in error by calling in aid the principle of law enunciated in Kojo II v. Bonsie & Another (supra) in view of the conclusion of the said trial court to the effect that the defendants’ traditional history was conclusive. It, however, held that the error it alluded to was innocuous as it did not occasion a miscarriage of justice. The Court of Appeal stated thus:

“I think the lower court had been mistaken in calling in aid the approach stated in Kojo v. Bonsie (supra) when it was able to conclude that the defendant’s traditional history was conclusive. The error is in my view innocuous and did not occasion a miscarriage of justice.”

With profound respect to the Court of Appeal, I am unable to accept that the principle of law enunciated in Kojo II v. Bonsie & Another (supra) did not apply to the facts of the present case. I should, perhaps, state for the avoidance of doubt that the test in Kojo II v. Bonsie & Another (supra) is applicable where, as in the present case, there are more than one set of traditional histories before the court and each is relied on by one party or the other to establish its title to the land in dispute and each of those sets of traditional histories is not only plausible and probable but conflicting. In such a case the conflict is resolved not by the demeanour of witnesses but by reference to facts and/or events in recent years as established by evidence to see which of those competing or conflicting histories is more probable. In this regard it ought to be noted that the emphasis on the principle in Kojo II v. Bonsie & Another is on the word “probable” and not on “conclusive” or “inconclusive”.

In the case on hand, there is no where in the judgment of the trial court that the term conclusive or inconclusive was employed to describe either of the two traditional histories that were presented to the court by the parties. It is plain that both traditional histories were plausible and probable. They were also conflicting. It seems to me clear in these circumstances that the best way to resolve the conflict, as the learned trial Judge rightly decided, was to test the traditional histories by reference to facts in recent years as established by evidence to see which of the two competing histories was more probable. In my view, the trial court was in error by failing to apply the acid test prescribed in the case of Kojo II v. Bonsie & Another (supra) in determining which of the two conflicting traditional histories was more probable. Similarly, the Court of Appeal, with respect, was equally in error by affirming the decision of the trial court rejecting the traditional evidence of the appellants and accepting that of the respondents without recourse to facts and/or events in recent years as established by evidence with a view to identifying which of the two competing histories was more probable. It is evident in all the circumstances of this case that it is

impossible to say with any degree of certainty what the finding of the learned trial Judge would have been on the question of which of the two traditional histories before him was more probable had he applied the proper approach prescribed by law. Consequently his judgment together with that of the court below which affirmed the same cannot be allowed to stand. Accordingly, the sole issue for determination in this appeal must be resolved in favour of the appellants. I will now consider the appropriate order to make in this appeal.

The law is settled that where a court of trial fails to make findings on material and important issues of fact or approaches the evidence called by the parties wrongly, the appellate court will have no alternative but to allow the appeal. See Karibo & others v. Grend & Another (1992) 3 NWLR (Pt. 230) 426 at 441. An appellate court will, however, order a retrial where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appellate court to say there has been no miscarriage of justice and there are no special circumstances as would render it oppressive to put the parties on trial a second time. See Bakare v.Apena & Others (1986) 4 NWLR (Pt. 33) 1 at 16 – 17; Ayoola v. Adebayo (1969) 1 All NLR 159; Duru v. Nwosu (1989) 7 SCNJ 154 at 159; (1989) 4 NWLR (Pt. 113) 24.

In the present case, it is plain that there has been such an error in law which neither renders the trial a nullity nor makes it possible for this court to say that there has been no miscarriage of justice. There are also no special circumstances as would render it oppressive to put the parties on trial a second time. I think the interest of justice demands an order of retrial of this case.

The conclusion I have therefore reached is that this appeal succeeds and it is hereby allowed. The judgment and orders of the trial court dated the 11th day of September, 1987 as affirmed by the Court of Appeal are hereby set aside and it is ordered that this case be remitted to the High Court of Ibadan Judicial Division for re-trial before another Judge of that court other than Abiodun Alao, J. There will be costs to the appellants against the respondents which I assess and fix at N10,000.00

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SC.17/1999