Alhaji Muniru Aisa Animashaun & Ors. V. Saliu Aina Arupe & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

A. OGUNTADE, J.C.A. 

The appellants were the plaintiffs in Suit No.ID/1536/88 before the Ikeja High Court; and the respondents were the defendants. The parties are hereinafter described by the same descriptions they bore before the lower court. The plaintiffs brought the suit as the representatives of SUNMONU ANIMASHAUN family. The defendants were sued as the representatives of OBAWOLE family. The reliefs sought by the plaintiffs were:

“1. A declaration that the plaintiffs are entitled to the grant of a customary right of occupancy in respect of the tract of land measuring approximately 104.364 Hectares of land situate at Akute Road, off Iju Road, near Iju Station, Agege in the Ikeja Division of Lagos State demarcated on plan No. HU/LA/1648 drawn by T.A. Hussain (Licenced Surveyor) dated 14th day of February, 1981.

2. The sum of N20,000.00 (Twenty thousand Naira) being damages for trespass committed on the land by the defendants, their servants, agents or Privies going on the land on various occasions, effecting foundation and/or buildings thereon and fencing round some portions thereof.
3. An injunction restraining the defendants, their servants, agents on privies from continuing or committing any act of trespass on the land.”

The parties filed and exchanged pleadings. The relevant pleadings are these:-

1. Statement of claim dated 9/11/88
2. Statement of defence dated 19/12/88
3. Reply to statement of defence dated 25/1/89
4. Further defence dated 16/2/89
5. A further reply by plaintiff dated 9/3/89
6. A second further reply by plaintiff dated 13/4/89

At the hearing, before Alabi J., the plaintiffs called ten witnesses. The defendants called one witness. On 19/7/91, the trial judge in his judgment dismissed plaintiffs’ claims. The plaintiffs were dissatisfied with the judgment of the lower court. They have brought this appeal against it. In the appellants’ brief filed, the issues for determination in the appeal were identified as the following:

“i. What is the exact identity of the body of persons represented by the defendants in this action?

ii. Whether the court below was correct in concluding that there was controvercy between the parties to this action over the identity of the land in dispute.

iii. Whether the failure of the court below to take account of the discrepancy between:-

(a) the statement made to the police and

(b) the evidence given at the trial on behalf of the defendants regarding the grant of the land in dispute to Sunmonu Animashaun led to a serious error in the evaluation of the facts of this case.

(iv) Whether the persons vested with the title to or interest in the land in dispute in this action are

(a) the plaintiffs herein or (b) the Dada Adedipe family.

(v) In the light of the answers to the foregoing questions, and on the totality of the evidence before it what orders should the court below have made on the claims filed by the plaintiff in the action herein.”

The respondents in their counsel’s brief agreed with the issues for determination as formulated by the appellant except for the fourth issue which they modified to read:

“(iv) Whether the persons vested with the title to or interest in the land in dispute in this action are:

(a) the plaintiff herein of, or

(b) the Dada Adedipe family or alternatively,

whether the plaintiffs had successfully established that the title to the land in dispute was vested on them.”

Before I consider the issues for determination in the appeal, it is necessary that I discuss in some depth the pleadings upon which the suit was tried by Alabi J. In the filing of pleadings the parties felt at liberty to file as many processes as they could and they were all treated by the trial judge as pleadings. Since the suit was tried on such assumption it is fair that I treat all such processes as part of the pleadings.

Broadly speaking, the plaintiffs’ case was that their ancestor Sunmonu Animashaun was granted the land in dispute by Obawole Bada, the son of Amore on or about 1889 for 999 years. It was pleaded that the plaintiffs’ family has been in possession of the land since that time farming thereon and granting portions thereof to tenants. However, in or about June, 1982, the defendants were observed trespassing on the said land. The plaintiffs lodged a report to the police. The defendants were interrogated by the police. They made a statement that Obawole leased the land to the plaintiffs for 99 years and not for 999 years as alleged by the plaintiffs. However, the High Court, Lagos based upon a Judgment of the Supreme Court, Lagos delivered on 13/2/96, confirmed in writing to the police that the lease was for 999 years. This in a nutshell was the case made on the pleadings by the plaintiff. There is an aspect of the pleadings which is of crucial importance which I shall later discuss in the consideration of issues. It suffices here to observe that although the plaintiffs sued the defendants as the representatives of the Obawole family, they also pleaded that the defendants had no connection of any sort with the said Obawole family.

The defendants in their statement of defence pleaded that whilst the land in dispute belonged to Obawole, the land was never leased to the plaintiffs’ ancestor Sunmonu Animashaun. It was pleaded that the lands which Obawole leased to some individuals were not at Akute. The defendants pleaded that the land in dispute originally belonged to their ancestor Dada Adedipe who it was further pleaded exercised diverse acts of ownership on the land by granting customary tenancies to various persons. Dada Adedipe died survived by three children OLAITI, AINA ARUPE and ABIRAN. The three children succeeded to the interest of Dada Adedipe.

The three children died survived by descendants who have inherited their interest. The descendants are now known as Aina Arupe – Obawole family or Obawole family. They have been in possession of the land exercising maximum acts of ownership thereon until sometime in 1983 when the plaintiffs tried forcibly to instal themselves on the land.

It was on the basis of the above state of facts that the suit was heard by Alabi J.

I intend to consider together appellants issues i, iv and v. The plaintiffs as I observed earlier brought their suit as the representatives of Sunmonu Animashaun, family. The defendants were sued “for themselves and as representatives of Obawole family.”

In paragraphs 6 and 7 of the statement of claim, the plaintiffs averred:

“6. The defendants claim to be the descendants of one Obawole.

7. The defendants are a well known land speculators and trouble makers in and around Agege and are not descendants of one Obawole Bada, the plaintiffs’ predecessors-in-title who died many years ago.”

The plaintiffs in paragraphs 14, 16 and 17 of their Reply pleaded thus:

“14. The plaintiffs aver that the defendants on discovery of the futility of their attempt to claim the land suddenly changed their root of title to one Dada Adedipe, abandoned their previous claim and established an imaginary AINA ARUPE OBAWOLE FAMILY dynasty.

16. The plaintiffs aver that the 1st defendant is an Egbira man from Kwara State whose real name is SALIU ADAMU a typical kwara name which he later changed to Saliu Adamson and recently to SALIU AINA ARUPE claiming to be related to OBAWOLE and not OBAWOLE BADA he plaintiffs’ predecessors-in-title.
17. The plaintiffs aver that none of the defendants is directly or indirectly related to OBAWOLE BADA who in 1896 gave a grant of the land in dispute to late ANIMASHAUN”.

The defendants in paragraphs 2, 3, 7, 8, 9, 10 and 11 of their statement of defence averred:

“2. The defendants in answer to paragraphs 2 and 3 of the statement of claim aver that the land covered by the plan referred to forms portion of land belonging to Obawole at Akute but deny that this was ever leased to Sunmonu Animashaun by Obawole at any time.

3. The defendants in answer to paragraphs 8 and 9 of the statement of claim aver that the lands granted by Obawole to the persons mentioned therein and in respect of which they paid premium to Obawole were not situated at Akute while Sunmonu Animashaun was not one of such people.
4. That from the immemorial one Dada Adedipe the forebear of the defendants owned a vast area of land at Ifako and its environs of which one situate at Akute now alleged to be in dispute by the plaintiffs forms a portion thereof.
5. That the said Dada Adedipe exercised diverse acts of ownership on his vast area of land by granting customary tenancies to various people and died survived by his three children viz: – OLAITI, AINA ARUPE and ABIRAN who succeeded to his interest in the said land.
6. That OLAITI, AINA RUPE and ABIRAN have all died many years ago and their descendants amongst whom are the 1st and 3rd defendants herein have succeeded to their interest in the said land under Yoruba native law and custom.
7. That the 1st defendant is of Aina Arupe descent while the 3rd defendant is of Obawole descent.
8. The defendants aver that their descendants who are now known or referred to as AINA ARUPE-OBAWOLE family or OBAWOLE family have for many years been exercising maximum acts of ownership on their inclusive of (sic) land act Akute Road alleged to be in dispute without hindrance from any quarter.”

The remarkable thing to observe about the pleadings of parties is that whilst the plaintiffs sued the defendants who were described as the representatives of Obawole family, the plaintiffs still went on to plead that the defendants had only made a claim that they were representatives of that family. They pleaded further that the defendants were not the representatives of OBAWOLE DADA who made a grant of the land to the plaintiffs’ ancestor SUNMONU ANIMASHAUN.

The defendants on the other hand traced their traditional history and necessarily the devolution of the land from Dada Adedipe who was said to have been original owner of the land. Dada Adedipe was said to have died survived by three children namely OLAITI, AINA ARUPE and ABIRAN. The descendants of these children according to the defendants are now known as AINA ARUPE OBAWOLE family or Obawole family. The remarkable thing in the traditional history pleaded by the defendants is that it was never pleaded that the land at any point in time devolved either singly or jointly upon OBAWOLE BADA through whom the plaintiff claimed. Without any such historical link pleaded, the defendants just pleaded that their family is now known as AINA ARUPE OBAWOLE or OBAWOLE family. The crucial question is – were the defendants deriving the title they relied upon on the same OBAWOLE BADA through whom the plaintiffs claimed? If the defendants’ OBAWOLE had sufficient clout and importance in their ancestry as to be able to give out land singly to the plaintiffs (i.e. taking the defendants as referring to plaintiffs Obawole Bada) why did he not feature in defendants’, traditional history?

At the hearing, the first plaintiffs’ witness in his evidence under cross-examination at page 181 of the record said:

“The land was leased to my grand father SUNMONU ANIMASHAUN by the OBAWOLE DADA for a term of 999 years.

The vendor is called Obawole Bada. there was a case in 1896 containing evidence that the land was leased to my grandfather for 999 years. I could not find any title or document to support our interest in the land.

I do not know that the descendants in this case are descendants of Obawole Bada.”

The 6th witness for the plaintiffs Chief Abolade Olatunji Coker testified at page 193 of the record thus:-

“I know the 1st and 3rd defendants. I know the land the subject matter of this suit. It is part of Ifako land originally called Isheri land because it belonged originally to the Olofin of Isheri. The land was first granted to Amore the father of Obawole. The first defendant worked with me for some time. He was Saliu Adisa Adama. The 3rd defendant is the son of Lawani who was the son of Dada Oro. Dada Oro was the son Obawole.”

From the extracts of the evidence of P.Ws 1 and 6 reproduced above, the plaintiffs were able to show that their predecessor in title was Obawole Bada who was the son of Amore. It must be said also that the 3rd defendant on the evidence of P.W.6 was shown to be the great grandson of Obawole. I shall come later to consider the evidence of 3rd defendant’s relationship with Obawole.

Now the only witness called by the defendants SALIU ADISA AINA ARUPE testified at page 210 of the record thus:

“I am the first defendant in this case. I know the 2nd and 3rd defendants in this case. I know the family called Aina Arupe Obawole. I and other defendants are defending this action in a representative capacity for the Aina Arupe Obawole family. Dada Adedipe had three children, the names of the children are (1) Abiran, (male) (2) Olaiti, (female), (3) Aina Arupe, (female). I am the present head of the Aina Arupe Obawole family.

I am from the Aina Arupe branch of the family. The second defendant is from the Olaiti branch. The third defendant belongs to Olaiti branch. the land in dispute is located at Akute. Dada Adedipe owned other land apart from the Akute land. He has land in the environs. Dada Adedipe was farming on the land. He had a village there. He let out land to others to farm. After the death of Adedipe, the land devolved on his children under Yoruba native law and custom. After the death of Dada Adedipe the family was farming on the land. The family was also giving out part of the land to strangers to farm. Any stranger who wanted land to farm came to Obawole and Obawole gave them land and collected rent from them annually, sometimes he collected pepper, vegetable or such other items from them”.

Under cross-examination, D.W.1 said:

“The late Obawole was not the son of Amore. If anybody said Obawole was the son of amore it will not be correct. I have said that Obawole himself gave evidence in the judgment of 1896 that is exhibit P. 2. It is true that I said I gave land to Lisboa, Moore and Sunmonu Animashaun in my statement to the police but I was not referring to the plaintiff.”

In the evidence of traditional history given by the only defence witness, Obawole was not said to be one of the direct sons of the defendant’s forebear Dada Adedipe. Nothing in the evidence conveyed that Obawole was a co-original owner of the land with Dada Adedipe. At the highest, the evidence of the only defence witness conveyed that Obawole was an agent or caretaker of the Dada Adedipe family. Why then did he assume an importance in the Dada Adedipe family to enable the family rename itself the AINA ARUPE OBAWOLE or OBAWOLE family?

The 3rd defendant on the evidence of P.W.6 was a great grandson of OBAWOLE who was plaintiffs’ predecessor-in-title. But in the way this case was fought on the pleadings, that fact must be seen as an inconsequential occurrence since the defendants in their case did not rely on a title said to be derived from plaintiffs predecessor-in-title OBAWOLE BADA. Rather the title which the defendants put on the line was the one derived from their alleged forebear Dada Adedipe.

On the totality of the evidence before the lower court and the parties pleading, the conclusion is inescapable that the parties in this case had before the lower court relied on different sources of title. The plaintiffs on title from OBAWOLE DADA and the defendants from DADA ADEDIPE. It is possible that the 3rd defendant for reasons best known to him elected to fight the case under the banner of DADA ADEDIPE family. It also seems to me that the inclusion of Obawole in the family name of the defendants was a cosmetic device introduced to mislead. I say this because no Obawole featured in the traditional history of the defendants as an individual who had a right on his own to alienate the land of Dada Adedipe either as a direct son or a descendant.

Now the lower court in its judgment at pages 511 of the record said:

“Where the root of title rests in a known grantor, credible evidence of the grant must be given. (See the case of Thomas V. Holder (1948) 12 WACA 78).”

and at page 516, the trial judge said:

“The plaintiffs in this case traced their title to Obawole Bada. They failed to do so successfully. The defendants claimed to be the descendants of Obawole Bada who the plaintiffs claimed granted them the lease of the land in dispute. The sixth plaintiff witness Chief Abolade Coker admitted that the 3rd defendant is a descendant of Obawole Bada.”

In the manner the lower court reasoned, it is apparent that it assumed that the title which the plaintiffs relied upon was the same one which the defendants also relied upon. The trial judge saw a link between the titles in the fact that the 3rd defendant was shown to be a descendant of Obawole Bada. With respect to the learned trial judge, I do not think he was correct in his approach. Clearly, the plaintiffs pleaded that the defendants were merely claiming to be members of Obawole Bada family which they were not. The defendants ought to have known that what was in issue here was whether or not the title of Obawole Bada was the same with that relied upon by them. Rather than plead and lead evidence to show that their title derived from Obawole Bada, the defendants relied on a title derived from Dada Adedipe. The result is that the lower court should have found that the titles relied upon by parties could not be one and the same.

The approach of the trial judge would be correct on the authority of THOMAS V. PRESTON HOLDER (1946) 12 W.A.C.A 78, ELIAS V. SULEIMON (1973) 12 SC 113 at 129 – 130, and OKPALOKA V. UMEH (1976) 9 – 10 SC 269 at 297, ISIBA V. HANSON (1967) 1 ALL N.L.R. 8, SANNI V. OKI (1971) 1 ALL NLR 116. If the plaintiffs’ source of title was shown to be the same with the defendants.

Did the plaintiffs show by the evidence they called that they were entitled to a declaration of entitlement to a customary right of occupancy in their favour? I think not. At page 510 of the record, the trial judge said:

“It is trite law that on a claim for declaration of title to land the plaintiff must rely and succeed on the strength of his own case and not on the weakness of the defendant’s case. The burden of proof lies on the plaintiff. If the burden or onus is not discharged the weakness of the defendant’s case will not help him (See the cases of Fabunmi V. Agbe (1985) 1 NWLR (Pt. 2) page 299; Chukwueke v. Nwakwo (1985) 2 NWLR Part 6 page 195 and Owoade v. Omotola (1988) 2 NWLR Part 77 page 413.”

The evidence called by the plaintiffs in support of their claim for declaration was very weak. Although the plaintiffs claimed that the land was leased to their ancestor by Obawole Bada for 999 years, they were unable to produce cogent evidence of such a grant. They were reduced to searching the evidence given in cases to which they were not parties in order to show they had a grant of 999 years from Obawole Bada. The evidence given in exhibit P.2 by witnesses in the case did not qualify under section 34 of the Evidence Act to be used as evidence in the current proceedings.

At page 508 of the record the trial judge said:

“Further still, there can be no doubt that the parties to the proceedings in the earlier consolidated suit of 1896 and the present suit are not the same. The parties to the earlier suit as enumerated above are Ashade v. Brimal, Bashorun and Amidu, Osho v. Odu Ijebu and Osho v. Shonefun while the parties to the present suit are Alhaji Muniru Adisa Animashaun, Alhaji Rufai Animashaun, Alhaji Saliu Olayinka Badru for themselves and as representatives of Sunmonu Animashaun family v. Saliu Aina Asupe Alias Saliu Adamson (2) Saibu Obawole and (3) Lamidi Obawole for themselves and as representatives of Obawole family.

No shred of evidence was led to show that the present plaintiffs are privies (whether in blood, in law or in estate) to any of the parties in the 1896 case and no evidence was led to show that the present defendants are privies to any of the parties in that earlier case. It cannot therefore be said that the parties in the two suits or proceedings are the same”.

As to whether the plaintiffs could rely on the evidence given in the 1896 case i.e. exhibit P2, the lower court at pages 503 – 504 correctly discussed the applicable principle of law thus:

“The question is whether the plaintiffs can successfully establish their title or interest through the testimonies of witnesses in that case and the judgment delivered therein. The legal position which has been stated on numerous occasions is that evidence given in a previous case is not admissible by the court trying a case except where section 34(1) of the Evidence Act is applicable (See the cases of Ayanwole V. Atanda (1988) 1 NWLR (Part 68) page 22; Omonhintiu v. Enateywere (1988) 1 NWLR (Part 73) page 746; Terytex Nig. Ltd v. N.P.A. (1889) 1 NWLR Part 96 page 229.

However, in the case of Olujinle v. Abagobe (1988) 2 NWLR (Pt. 75) 238, the Supreme Court held that a party may tender a certified true copy of previous proceedings as part of his own case in a case between him and his adversary for two purposes: (1) He may tender it to support or plea of estoppel per rem judicatam or (2) he may tender it as a relevant fact under section 34 of the Evidence Act (See also the case of Mongo Chinwedu V. Nwaneri Mbamali (1980) 3 – 4 SC 31).

Evidence given in previous proceedings by a witness who is called in the present case can be used to impeach his credit under section 207 and 209 of the Evidence Act but evidence in previous proceedings does become evidence in the present case.”

I am satisfied that the trial judge correctly allowed himself to be guided by the relevant principles of the law in the consideration of the question whether or not he could rely on the evidence given by witnesses who testified in exhibit P2. With the decision of the trial judge to reject the evidence given in the earlier case, the plaintiffs claim for declaration of title was bound to collapse because there was no other evidence before the lower court which showed the source of the title ascribed to Obawole Bada. There was evidence from P.W.6 that the land originally belonged to the Isheri people who granted it to Amore whose interest was inherited by Obawole Bada. But there was no satisfactory evidence as to the grant of land by Obawole Bada to Sunmonu Animashaun.

The plaintiffs who had sued for declaration of title must succeed on the strength of their case. They needed to call cogent and credible evidence of the grant from Obawole Bada. Not having done so, the plaintiffs claim for declaration deserved to fail as it did.

The plaintiffs also claimed for trespass and injunction. It is now trite law that a claim for trespass and injunction is independent of the claim for declaration of title. A claim for trespass is not bound to fail because a claim for declaration fails: See OLUWI V. ENIOLA (1967) N.M.L.R. 339 at 340. It is also trite that a person in possession of land can maintain an action in trespass against anyone who cannot show a better title. See AMAKOR V. OBIEFUNA (1974) 3 S. 667 and ONYEKAONWUV. EKWUBIRI (1966) 1 ALL N.L.R. 32; ODUOLA V. COKER (1981) 5 S.C. 197.

Before the lower court, the two parties claimed to be in possession of the land in dispute. In paragraphs 11, 12 and 14 of the statement of claim, the plaintiffs pleaded that since 1889 the late Sunmonu Animashaun and his descendants have been in possession of the land until 1982 when the defendants came for the first time to disturb their possession. The defendants in paragraphs 11 and 12 of their statement of defence pleaded that they have been in possession of the land for many years until 1983 when the plaintiffs tried to “impose themselves” on the land in dispute.

The lower court commented on plaintiffs’ possession thus at page 515 of the record:

“The plaintiffs’ possession is therefore that of a trespasser since it is now bereft and shorn of that prior ownership which should have provided such possession with the necessary clout and a valid vestige of legality (See Da Costa V. Ikom; (1968) 1 All NLR 394 at 398; Ogbedim & Ors. v. Onochie & Ors (1988) 1 NWLR (Pt. 70) 170.”

The law is that where possession is doubtful or equivocal, the law attaches it to title – See ODUNSI V. KUFORIJI & ANOR 19 N.L.R. 7; CANVEY ISLAND COMMISSIONERS VS. PREDDY (1922) 1 Chancery P. 179; IBANGA V. USANGA (1982) 5 S.C. 103. At the trial both parties led evidence as to their current possession of the land in dispute.

Whilst the lower court recognised that the plaintiffs were in possession of the land albeit as a traspasser, it did not state that the defendants were not in possession. Rather, it ascribed ownership to the defendants’ and with that ascription the possession of the land.

I held earlier that the lower court was in error to have taken the position that the defendant’s source of title was the same as the plaintiffs’. The consequence of that error is that the lower court denied itself the opportunity to determine whether or not the defendants had a title better than the plaintiffs’ since there was no doubt that the plaintiffs had a measure of possession of the land in dispute.

The failure of the lower court to consider whether or no the defendants had a title better than the plaintiffs has led to the situation where plaintiffs claim for trespass and injunction was not satisfactorily considered. Even if the plaintiffs were trespassers as the lower court held, they were still entitled to keep their possession unless the defendants showed a better title.

I have a temptation to say that even the claim for declaration of title by the plaintiffs ought not to fail unless the evidence called by the plaintiffs as to title has first been compared and contrasted with the evidence of title called by the defendants. But the law is that the plaintiff’s title must first be considered and pronounced upon before a consideration of the title of the defendant’s: See AROMIRE V. AWOYEMI (1972) 2 S.C. 1. Further, the defendants had not raised a counter-claim for declaration of title.

The inevitable conclusion is that the claim of the plaintiffs for trespass and injunction must be tried de novo as it was not satisfactorily considered by the lower court arising from a misconception as to the source of title of the defendants.

With respect to appellant’s issue No. 2, I have examined closely the pleadings of parties and I do not see that there was any controversy between the parties as to the identity of the land in dispute. The plaintiffs who brought the suit clearly identified the land which they claimed was in dispute. The defence of the defendants was that Obawole did not grant a lease of any land at Akute to Sunmonu Animashaun or at any other place. That defence did not imply that there was a dispute as to the identity of the land in dispute. However, the obvious error of the lower court concerning the identity of land did not lead to any miscarriage of justice. It is therefore not necessary to explore further the matter. An error no doubt it was but the error did not -materially affect the conclusion arrived at by the lower court.

Finally is the question of the alleged discrepancy between (a) the statement made to the police and (b) the evidence given at the trial – regarding the length of the grant said to have been made to Sunmonu Animashaun by Obawole. I have no doubt that the defence witness was evasive and less then truthful in his testimony but seems to me that that bad performance by D.W.1 was dwarfed into insignificance by the fact that the testimonies of witnesses in exhibit P.2 were in any case irrelevant to the nature of the interest granted by Obawole Bada to Sunmonu Animashaun. The evidence could not be relied upon in the current proceedings and it would appear not to matter even if D.W.1 had attempted to dilute the evidence and its effect.

In the final conclusion, I make these orders:

1. I affirm the decision of the lower court dismissing plaintiffs’ claim for declaration to customary right of occupancy.
2. I uphold the appeal of the plaintiffs against the dismissal of their claims for trespass and injunction. I accordingly allow the appeal on this score and set aside the judgment of the lower court dismissing plaintiffs’ claims for trespass and injunction. In its place, I make an order that the claims of the plaintiffs for trespass and injunction be tried de novo before another judge of the Lagos State High Court.
3. I make no order as to costs.

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Other Citations: (2003)LCN/1350(CA)