Alhaji Adebiyi Layinka V. Adeola Makinde (2002)

LAWGLOBAL HUB Lead Judgment Report

S.M.A. BELGORE, JSC.

This appeal is in respect of the decision of Court of Appeal Ibadan Branch. The action which led to the appeal in that Court, on a cursory look, appears to have started in the High Court. But that is actually not the true story. The case actually started in 1944 in the Native Court, it went on appeal to District Officer’s Court then to Residents’ Court in which the present appellants lost all their claims to the vast track of land in issue. They similarly lost appeal in Governor’s court. The decisions in all those courts went in favour of the respondents who had all along been in possession. After about fifty years, the descendants of the original losers, Layinka Family, in 1987, took out a new writ and claimed as follows: “1. AGAINST ALL THE DEFENDANTS (a) DECLARATION that members of Layinka family of Ibadan are the persons entitled to a grant of Statutory rights of occupancy in respect of a piece or parcel of land situate, lying and being at Abanla area (formerly known as Ikeja Layinka) via Idi Ayunro excepting the areas granted by the plaintiffs absolutely and which same is more particularly described and edge RED on PLAN NO. 0G17/88 of 23rd day of May, 1988 drawn by S. Akin Ogumbiyi Licensed Surveyor of Ibadan. (b) Fifty thousand Naira (50,000.00) being general damages for Trespass being committed by the defendants on the said land. (c) INJUNCTION restraining the defendants, their agents, Servants and all manner of persons from committing further or any act of trespass on the said land. 2. AGAINST THE 1ST TO 5TH DEFENDANTS An order of forfeiture of the interest or rights of the first to fifth defendants in the area verged BLUE marked A & B in the said plan with Injunction restraining them, their servants, agents and all those claiming through them from entering the areas. 3. AGAINST THE 6TH DEFENDANT ONLY The sum of One hundred thousand Naira (N100,000.00) per day from the 1st day of April, 1987 being the daily net value of the stones, hardcores, gravels and properties of the plaintiffs being removed and sold daily by the 6th defendant on the area edge YELLOW on the plan referred to above.” At the High Court in this new suit, the respondents as defendants raised issue of estoppel per rem judicatam by relying on the 1944 action that ended finally in colonial Governor’s court against the predecessors of the plaintiffs/appellants in this case. The respondents submitted the suit was an abuse of court process and that it be dismissed. There was also the plea of statute of limitation raised by respondents. The trial judge ruled against all these defences in a preliminary decision and got the case to trial. However, the respondents, as defendants, after extensive search at National Archives, amended their Statement of Defence and indicated all the Native Courts in Ibadan, particularly the ones dealing with land matters between 1937 and 1944 and the relevant appellate fora in accordance with the then existing laws. At the conclusion of all the evidence for the parties learned trial judge, Oluborode J. (as he then was) in a thoroughly reviewed evidence based on the pleadings, came to the conclusion that the plaintiffs’ case was not proved. Looking at the traditional evidence of the parties, he rightly took refuge in Lord Dennings’ principle in Kojo II Vs Bonsie (1957) 1 WLR 1223, 1226 that where traditional histories of the parties are divergent, it is not safe for trial court to simply or thereby hold that it believed one or rejected the other. The parties in such cases rely on histories handed down by their predecessors and however unlikely such histories, the parties honestly believe them. The court must then look to what other evidence available for help.

Such evidence may be recent history on the land. Those in unchallenged possession and exercising control over the land may be rightful owners. The recent history may be a matter of many years and control may be physical possession and giving out lease etc on the land. Learned judge found that the respondents were not only in complete possession of the land, but also gave out quarrying rights on the rocks on the land. It is always the plaintiff who asserts that carries the onus of proving his assertion. The test is to find, in failure of traditional history to shed proper light on the true owner, who in recent times has exercised exclusive acts of ownership on the land in question over a reasonable length of time in a positive and unhidden manner numerous enough to exclude any other inference than that that person is the owner. (See Eriri v. Erhunlobara (1991) 2 NWLR (Pt. 173) 253, 263; Abudu Fajube Karimu v. Daniel (1968) NMLR 151, 153; Oloriode vs Oyebi (1984) 5SC1, 17, 18; Balogun v. Akunji (1988) 1 NWLR (Pt. 70) 301, 323; Adeyemo v. Popoola (1987) 4 NNLR (Pt. 66) 518; and Ekpo v. Ita, X1 NLR 68). Learned trial judge in some instances found pieces of evidence proffered by the plaintiffs (now appellants) at variance with their pleadings. He never found any evidence to support Layinka’s control of the disputed land at any time. He found Osayindina (respondents predecessor) to be in control of the land and his present ancestors (respondents) have all along been in possession and continuous control. The plaintiffs as a result lost at the trial court. The Court of Appeal had no reason to interfere with the decision of trial court in the face of the clear evidence on the record. It upheld the trial court’s decision. In all cases, especially civil ones, the onus is always on the plaintiff to prove his case to the satisfaction of the trial court. (Kodilinye v. Mbanefo (1935) II WACA 336; Umojiako v. Ezenamuo (1990) NWLR (Pt. 126) 253; 272; Onyido v. Ajeumba (1991) 4 NWLR (Pt. 184) 203, 227;). It is clear all through 1944 to this day the appellants had come up with various suits and lost to the respondents or their privies or agents. In sum total, this matter on appeal is based entirely on concurrent findings of the two lower courts on facts. No appellate court should disturb the concurrent findings like these unless those findings are perverse or are based on wrong proposition of law or inadmissible evidence or no evidence at all. Going through a line of decisions this Court will not disturb a clear finding of fact by lower courts (See Coker v. Oguntola (1985) 2 NWLR (Pt.5) 87; Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27; Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 393; Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22; Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182; Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; Akalezi v. State (1993) 2 NWLR (Pt. 273) 1; Anaeze Vs. Anyaso (1993) 5 NWLR (Pt. 291) 1; Okonkwo v. Okagbue (1994) 9 NWLR (Pt. 368) 301; Otitoju v. Governor Ondo State (1994) 4 NWLR (Pt. 340) 518)

It is therefore clear that this appeal entails this Court being asked to re-look at the concurrent findings of fact by the two lower courts without assigning any cogent reasons or special circumstance why this Court will embark on such course of action. I find no merit in this appeal and I find the lower courts were right in dismissing the plaintiffs’ claim and upholding the counter-claim. I dismiss this appeal and uphold the decision of Court of Appeal which affirmed the decision of trial court. I award N10,000.00 as costs in favour of the 1st – 5th respondents N10,000.00 in favour of 6th respondent against the appellants.

SC.139/1997