Arabe V. Asanlu (1980)

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BELLO, J.S.C. 

The appellant as plaintiff representing himself and Isolo of Isanlu Isin family sued the respondent as defendant representing himself and Asanlu family in the Ayangba Upper Area Court claiming a declaration of title to a large parcel of land and an injunction restraining the defendant from entering the land and from interfering with the economic trees thereon.

The case for the plaintiff in the trial court was that the land in dispute belonged to his fore-fathers and that recently the defendant had entered the land and started clearing it. In his defence the defendant not only denied the plaintiff’s claim but counter-claimed informally in accordance with the practice of Area Courts that the disputed land was founded by his fore-fathers and his family have been in possession since then.

At the trial of the case both parties called witnesses who gave traditional evidence of how their ancestors got to the land in dispute. The trial court inspected the land in the presence of the parties and took further evidence at the locus in quo. There is no plan made by a surveyor. However, in accordance with the normal practice of Area Courts, the trial court made a sketch plan of the land shown to it by the parties. In a considered judgment, the trial court found that both parties have been in occupation of some portions of the disputed land and each party has exclusive possession of his own area. Consequently, the trial court awarded part of the land to the plaintiff and the other part to the defendant.

Not satisfied with the decision of the trial court, the defendant appealed to the Ilorin High Court which dismissed his appeal and affirmed the decisions of the trial court. He further appealed to the Court of Appeal and that court, in stating its reasons for allowing his appeal and setting aside the decisions of the lower courts and entering a judgment of dismissal of the claim of the plaintiff in the Ayangba Upper Area Court, observed as follows:-

“About 40 years ago, the West African Court of Appeal dealing with situation similar to what the trial court have done in the case of Ohene of Assachere v. Ohene of Dadiase 6 WACA p.86 cited by the learned counsel in the lower court, Kingdon, CJ., Nigeria, said thus:

It seems to me clear from the passage in the judgment of the Asanthehene’s Court which has been quoted by my learned brother that that court found that the plaintiff had failed to prove his case. That being so the court should, in my opinion, have dismissed the plaintiff’s claim. Instead of doing that the court divided the land between the parties fixing an arbitrary boundary. In the result the plaintiff got what amounts to a declaration of title inter parties to part of the land, a declaration to which he was not entitled since he had tried but failed to prove his right to it, whilst the Defendant got what amounted to a declaration of title inter parties to the other part of the land, a declaration for which he had asked, and to which he also had not proved his right.

We are in entire agreement with the reasoning in the quoted passage above. We not only adopt it but also apply it fully in the determination of this appeal. It may be that what the trial court did may amount to a common sense judgment but not all common sense judgments result in fairness, which is the object of justice. The respondent here wanted the whole land and it might be unfair to him to deprive him of part of it, which might be the better part, in favour of an appellant who may have no right to it, a situation which is equally unfair.

The trial court inspected the land in dispute, produced a report which shows both parties to be on the land and having exclusive possession of its own area. In a situation like that, respondent cannot be said to be in exclusive possession of the whole area claimed. The consequence of such a failure to prove such exclusive possession must result in the dismissal of respondent’s claim; Kodilinye v. Mbanefo Odu 2 WACA p.336.

During the course of the proceedings before us counsel for the respondent was unable to show how the boundary of the land in dispute which respondent claimed fit with the award made to him based on the notes made at the inspection by the trial court. This again is fatal to his claim, see Akinolu Barwa v. Ogunsola and 4 Ors. WACA p.159; Akpan Obong Udofia v. Okon Akpan Udo Afia 6 WACA p.216 at p.217.”

Incidentally, Ohene v. Ohene is not reported in 6 WACA p.86 as stated in the judgment of the Court of Appeal and in the first ground of appeal but in 7 WACA p.86.

In his turn the plaintiff was not satisfied with the decision of Court of Appeal and has appealed to this court upon the following grounds:-

“1. The learned justices of appeal erred in law and misdirected themselves in their application of the case of Ohene of Assachere of Dadiase 6 WACA p.86 at page 89.

Particulars of Error/Misdirection