Aderonmu Okiji & Anor Vs Adejobi (Bale) & 5ors (1960)

LawGlobal-Hub Lead Judgment Report

BRETT, F.J. 

This is an appeal by the plaintiffs against the judgment given by Sir Adetokunbo Ademola when Chief Justice of the Western Region, in which he dismissed their claim for declaration of title to a piece of land at Molusewu-Ojowo, Ijebu-Igbo, damages for trespass and an injunction to restrain future trespass. The plaintiffs sued on behalf of the Molusewu family, and it is their case that about two hundred years ago their ancestor, Ogunfijabi Molusewu, migrated from Ikorodu and purchased a piece of land some 22 acres in extent, from one Oseyemi Olaribido for 48,000 cowries, the equivalent of 12s:0d. Ever since then, they say, the family has lived on the land and exercised acts of ownership by farming it and making building grants to various persons, including the third respondent. The respondents do not admit that there was any sale, and their case is that a small portion of the piece of land was granted to the appellants; ancestor by Olaribido and that he granted the remainder to the people of the Atikori quarter of Ijebu-Igbo, to which they all belong. The third respondent is in addition a descendent of Olaribido’s.

As is not uncommon in litigation over the tide to land, the parties are not agreed as to the extent of the area in dispute. Out of the area of 22 acres edged in pink on the appellants’ plan, Exhibit ‘A’, the plan shows only a part extending to 7.3 acres, edged in green in the plan, as in dispute, and the remainder is shown as the undisputed property of the Molusewu family. In his evidence, the surveyor who prepared this plan referred to the part edged green as the area in dispute alleged claimed by the defendant.” As against that, the respondents’ plan, Exhibit B, would apparently only concede one tenth of an acre to the appellants. The writ and statement of claim do not expressly say whether it is the whole area of 22 acres, or only the area edged green, over which a declaration of title is asked for, but on the whole I think the claim must be taken to have referred to the whole area edged pink.

The case presents one unusual feature, in the agreement by both sides that Olaribido was the Individual owner of the land in question. This, although it was reaffirmed by counsel in this court, is so contrary to what has been accepted by the highest tribunal as the rule prevailing 200 years ago see, for example, what was said by Lord Haldane in giving the judgment of the Privy Council in Amodu Tijani v. The Secretary, Southern Nigeria (1921) 3 N.L.R. 24, 58-60- that if it was off direct importance it might have been necessary to require further evidence as to the law applicable, but for the immediate purpose it is sufficient that it is agreed that Olaribido was the person having the power to dispose of the land, and that both parties trace their interest to a grant made by him.

Apart from a surveyor, six witnesses, including the two plaintiffs themselves, were called in support of the claim. The two plaintiffs gave in some detail the family tradition of how their ancestor had come to the neighbourhood and bought the land from Olaribido, employing one Osiege as go-between; he marked the boundaries, they said, by planting Porogun trees of which some are still standing. The first plaintiff went on to name other persons who, he said, had bought land in the neighbourhood, Petuji, who had bought from Olaribido, and Balogun, who had bought from “an Itowo man,” and the plans duly show “Ipetuji land” and “Odo Balogun people land” to the north and south respectively of the land in dispute.

Apart from this evidence of what happened two hundred years ago the plaintiffs said that they and other members of the family, some of whom they named, had used the land for farming, and had given portions of it to persons outside the family, including Peter Okusanya, the third respondent, to build one.

In recent years, they said, the respondents had started asserting a claim to the land, and had entered on ft by force. In 1952, it was said, 800 people, led by the six respondents, came onto the land, damaged the farms and cut down six kolanut trees.

The witnesses called for the plaintiffs did not help their case. Oseni Fowosere (P.W.4) stated that he had bought a piece of land in dispute from the appellants, but Amuse Adekoya (P.W.5), who was a member of the appellants’ family, and also a descendant of Olaribido’s said the piece of land was Atikori land; he said the same about a piece of land occupied by Segilota Ajomale (P.W.6), and SegtIola Ajomale agreed with him. Amuse Adekoya did confirm the traditional evidence of the sale of land to the ancestor of the appellants, and to Petuji, but he failed to corroborate their claim to any portion of the area edged green on Exhibit ‘A’. Finally, Daniel Olukoya Abimbolu (P.W.7), claimed to have bought a piece of land within the area edged green from the appellants for £20, and produced a receipt for £15 witnessed by the third respondent, Exhibit ‘D’, but in cross examination he admitted that he had later paid £50 to the respondents for the land, and produced another receipt, Exhibit ‘E’. He also said that before he made this payment to the respondents he had paid the appellants a further £10 through his father, and that the first appellant had told him that the money had been used in “appeasing the defendants’ people.”

Apart from a witness who said that the land on which St. James’ Church was built was acquired from the Atikori people in 1932, the evidence on which the respondents relied was given by the third respondent, Peter Jaiyesimi Ogunsanya, who supported their story as outlined above. He explained his conduct in signing as a witness to Exhibit ‘D’ by saying that he thought he was merely witnessing a payment of money, and did not realise that the land had anything to do with him. This is confirmed by the witness for the plaintiffs, Abimbolu, but, as Mr. Coker, for the appellants, points out, the land is described in the document, which is headed “Agreement on the Permit of Land,” and I find the explanation hard to believe. If the onus of proving their title had been on the respondents, I am far from saying that they would have discharged it.

Nevertheless, looking at the appellants case as whole, I would agree with the learned Chief Justice in rejecting it. It is suggested that he misinterpreted the decision of the Privy Council in Abimbola v. Enyimadu 12 W.A.C.A. 171, in finding the traditional evidence unconvincing, but that decision dealt with the weight to be given to traditional evidence and what is in issue here is its credibility. It is clear from the questions which the Chief Justice put to the witnesses that he was skeptical about the story of a sale of the land to a stranger two hundred years ago, and in his judgment what he says is ‘Much as I realise how difficult it is to prove a transaction of this nature so many years ago, I do not believe the plaintiffs assertion that there was a sale. The plaintiffs ancestor Molusewu was a total stranger from Ikorodu. It is most unlikely 200 years ago that land would be sold to a total stranger or that land at Ijebu-Igbo would be sold at all. It was unlike Yorubas to sell land at that period of their history, especially to a total stranger. He could be given land on payment of the usual tribute but an out-and-out sale was rare, if made at all.’ It is not necessary for the purposes of the present appeal to consider whether every word of that passage can be justified either as a matter of judicial cognizance or on the evidence in this case. It is enough to say that the Chief Justice was fully entitled to make use of his own knowledge in regarding the story of the sale as Improbable, and to hold that on the evidence it had not been proved. I am not prepared to dissent from this finding, which is in accordance with the general trend of judicial decisions or dicta about the sale of land among the Yoruba and other West African peoples. In Lewis v. Bankole (1909) 1 N.L.R. 82, 104, Osborne, C.J. stated that ‘The idea of alienation of land was undoubtedly foreign to native ideas in olden days,” and in 1955 the West African Court of Appeal held that in Accra alienation of land, though well established by then, was “originally unthought of”; Golightly v. Ashrifi 14 W.A.C.A. 676, 681. See also the judgment of the Privy Council in Oshodi v. Balogun (1936) 4 W.A.C.A. 1,2. It is true that these cases involved family or Stool land, whereas we are asked in this case to assume that the land in question belonged to Olaribido personally, but, as I have already said, that assumption seems open to doubt and I agree with the Chief Justice in not being satisfied that a sale to Molusewu ever took place.

Coming to more recent events, Mr. Coker was justified in saying that some of the evidence about farming on the land was not challenged in cross-examination, but the first appellant himself said that what he did was shifting farming, and I should not regard that in itself as conclusive evidence of ownership. Having regard to the almost complete failure of the witnesses called by the plaintiffs to substantiate their case as to recent unequivocal and unchallenged acts of ownership, I agree with the Chief Justice that they have failed to prove “acts of ownership, extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners”: Ekpo v. Ita 11 N.L.R. 68: and in spite of Abinabina v. Enyimadu (supra) I consider that in appropriate cases that is still the correct test, and that, as was said in Ekpo v. Ita, if in a claim for declaration of title the evidence of tradition is conclusive the case must rest on question of fact.

I would dismiss the appeal so far as it relates to the claim for declaration of title, but I

Other Citation: (1960) LCN/0873(SC)