Babatayo Oni V. Emmanuel Olokun & Anor (1994)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

The plaintiffs by writ of summons dated 13th August, 1987 are claiming against the defendant a declaration-

“that the land situate lying and being at Ahere (Aiyegbaju) was owned originally by Olumogbe family for the use of Osu Community as Aiyeyemi market and as was not granted to defendant’s father-Aro.”

“Pleadings were filed and exchanged at statement of claim and statement of defence. Thereafter evidence were led by both the plaintiff and the defence. The learned trial Judge, Adeyemi, J:, after addresses by counsel, in a reserved judgment, found the plaintiffs’ claim successful and gave judgment in favour of the plaintiffs as per their writ of summons and paragraph 29 of their statement of claim. Paragraph 29 of the statement of claim is a mere verbatim repetition of the claim set out in the writ of summons.

The defendant was unhappy with the judgment and felt aggrieved hence the instant appeal which was brought on 4th of August, 1988 against the decision of the court below delivered on the 17th June, 1988. The notice of Appeal dated the 27th July, 1988 contained 10 grounds of appeal, the omnibus ground inclusive.

In the appellant’s brief of argument filed by the defendant the following issues were identified as calling for determination-

“1. Whether the claim of the respondents could have been regarded as a mere declaratory judgment or a declaration of title to dispossess the appellant his proprietary and equitable rights of land in dispute.

2. Whether the trial learned Judge was right in law or in Equity to have found that there was no proper grant made to the defendant’s (Appellant) father.
3. Whether the Ilesha High Court was right for failure to decide the root of title of Olumogbe from the Owa Obokun Ofokutu.
4. Whether the Ilesha High Court was not correct to hold that the respondents were guilty of “standing by” that could have called for issue “Estoppel by conduct” against the respondents.
5. Whether the respondents were caught by the provisions of Limitation Act or Law applicable in Oyo State where the declaration sought amounted to recovering and dispossessing the appellant of his bona fide landed property.
6. Whether the land in dispute on which title had been ascribed to the appellant by the Court of Appeal, Ibadan on the 3rd day of July, 1987 could be jettisoned and/or side-tracked by Ilesha High Court on the 17th day of June, 1988 and thereby entered for the respondents a declaratory judgment to dispossess the appellant of his proprietary and equitable rights of the land in dispute.
7. Whether the appellant established a better proprietary and possessory title to the land in dispute.”

On the other hand, three issues were formulated in the respondent’s brief on behalf of the plaintiffs who are hereinafter referred to as respondents. They are-

“1. Whether plaintiffs’ claim of declaration is caught by Statute of Limitation- Limitation Law Cap. 64 Laws of Oyo State of Nigeria when the plaintiffs do not claim possession.

2. Whether the equitable defence of standby by laches and acquiescence of the defendant avail the defendant and whether they were properly rejected.
3. Whether the plaintiffs/respondents proved their claim and were entitled to the declaration in respect of the land in dispute sought.”

I have studied the formulations of both parties and I am of the opinion that, in spite of the passion and emotional undertone, the appellant’s identification of issues is preferred although some of them are slanted to accommodate appellant’s emotion as well as passion.

At the hearing of the appeal, appellant adopted and relied on the amended appellant’s brief. Mrs. Ukatu adopted and relied on the amended respondents’ brief prepared by an unidentifiable character in E. Adeyeye Adelekun &Co. I think appellant’s issue 3 is the heart and marrow of the matter otherwise regarded as Jugular vein of the case. It should, therefore, be considered before any other one. In canvassing the issue which is related to grounds 4, 7, 9 and 10 of the grounds of appeal, appellant contended that the respondents have failed to prove their title to the land in dispute as they have not been able to trace and prove the root of Olumogbe to Owa Obokun Ofokutu. He submitted that the respondents’ failure to bring as their witness the Owa Obokun of Ijesha land or his emissary to prove the grant to Olumogbe is an indication that the respondents’ traditional history was fallacious, impossible to buttress and prove their root of title to the land in dispute or to any parcel of land called Apole Ahere.

In this connection, the respondents’ counsel, submitted that respondents’ claim is based on traditional evidence and evidence was adduced to that effect which was in line with their statement of claim paragraphs 5-12. He referred to evidence of 1st plaintiff page 13 lines 5-15 which evidence counsel contended was not challenged under cross-examination by the defence.

In the circumstances, the nature of the evidence led is to be examined in the light of pleadings. The relevant paragraphs of the statement of claim are paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the statement of claim which is produced immediately hereunder-

“3. The plaintiffs bring this action in representative capacity on behalf of OLUMOGBE Family of Osu.

4. The plaintiffs aver that their great ancestor was OLUMOGBE whose father was one OJISE of Ijoka Street, Ilesha.
5. The plaintiffs aver that they are descendants of the said OLUMOGBE who was a warrior during the reign of Owa Obokun OFOKUTU.
6. The plaintiffs aver that OLUMOGBE took part in the intertribal war at’ Ido’ near Ile- Ife on the side of Owa Obokun OFOKUTU and won the war.
7. The plaintiffs aver that as compensation for his part in the ‘Ido war’ Owa Obokun OFOKUTU granted him land at a place called’ Apole Ahere’ with his people to settle and farm.
8. The plaintiffs aver that Olumogbe was persuaded to move to Osu with some others who had their quarters called Apole outside the present Osu site, and he moved to a place where he built a hut, else the place is called “OGBO AHERE”. It was from there he was going to his farm called “Apole Ahere.”
9. The plaintiffs avers that the place called “AHERE” is now called “AIYEGBAJU”.
10. The plaintiffs aver that their ancestors- OLUMOGBE lived and died at Ogbo Ahere and was buried there and that after his death his descendants inherited the land which has now developed to a quarter formerly known as Ogbo Ahere, and now known as AIYEGBAJU.
11. The plaintiffs aver that OLUMOGBE’s children that succeeded him on the land included Onigobu, Eru-Esu, Ogunkolade and Farotimi; and include the following descendants: Ojo, Ben Farotimi (2nd plaintiff), Olokun, Emmanuel Olokun (1st plaintiff), Moses Ilori and Adejuyi Olukanni.
12. The plaintiffs aver that the descendants of OLUMOGBE have since been in possession of the land at “Ogbon Ahere” now called “Aiyegbaju” and have built houses on the land and have granted others to build on portion of the land.
13. The plaintiffs aver that some of the descendants of OLUMOGBE that built at AHERE are: Farotimi, Dejuyi, Eru-Esu, Olokun, Ajimo, Moses Ilori, Sunday Farotimi, Abraham, Daniel Sokoto, Jeremiah Faleye and Osunleti.
14. The plaintiffs aver that among people granted land by plaintiffs’ family who are not related to OLUMOGBE Family are- Ogunjuyi, Kanmodi, Ariyo, Gabriel Ola, Shittu Oje, Daniel Lasebikan and Aribifo.
15. The plaintiffs aver that some 53 years ago, it was thought necessary to have a market along the road from Ilesa to Ife and the Osu community appealed to three quarters in Osu to donate land for the purpose of the market, which was later named as AIYEYEMI Market.

The appellant joined issue with the respondents by paragraphs 16, 17, 18, 19, 20, 21, 22 and 23 of the Statement of Defence which are also set out immediately hereunder –

“16. In further answer to paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 of the Statement of Claim, the defendant says that all amounted to a complete historical fallacy.

17. The defendant says that his grand-father Ogunlokeodo Ifaturoti, the second Ejemo of Aguja was one of the first settlers at Osu towards the later part of 19th Century.
18. The descent groups settlers that later formed the geographical area now called Osu were as stated in paragraph 23 of the Statement of Defence in Suit HIL/18/84 referred to in paragraph 10 above.
19. The defendant says that the land being claimed by the plaintiffs was never used or donated to be used as market by any quarter or quarters at Osu.
20. The defendant says that there has been only one common market known as Idi-Ogudu market at Osu and the market is operated every five days to date.
21. The defendant says that his father- Ezekiel Oni Aro Ifaturoti got an absolute grant of the land being claimed by the plaintiffs from the Ahere/Arikese people under native Law and custom in the year 1936.
22. Odofin Elegbeleye was the head of the Ahere/Arikese people of Oke-omi, Osu at the time the defendant’s father acquired the land being claimed by the plaintiffs.
23. The defendant avers that the grant made to his father by the Ahere/Arikese descent group was an absolute one and is not subject to any reversible principle of law.”

In this connection the 1st plaintiff- Emmanuel Olokun testified inter alia as follows-

“Olumogbe was a warrior in his life-time in the era of Owa Obokun Ofokutu of Ilasa. I have heard of Ido Inter-tribal war. The war was fought at “Ido” near Ile-Ife. Olumogbe fought the war on the instruction of Owa Ofokutu. Ido and Ijesha were engaged in the war Olumogbe won the war for Ijesha people. After winning the war, he was granted land. The land was called Apole Ahere near Osu from there he moved to “Ogbon Ahere” where he built a hut. The place is now known as Aiyegbaju-Osu. He died at Ahere Osu and was buried at Ahere.”

Under cross-examination by appellant in person, he said amongst other things-

“Olumogbe had 4 children, namely (1) Ogunkolade, (2) Eru Esu (3) Farotimi and Adejuyi-Origogu. Ogunkolade begat Olokun who is my father. It is not correct that the father of the mother of Ogundun gave my father Olokun land to build a house. I am a witness of truth. I am not related to Mrs. Ogundun Oni and there is no relationship or transaction between our two families. Olumogbe was not the first person to settle at Osu and he found Ogbon Ahere; It is a large area that is in dispute… The land in respect of which you sued yourselves belong to 3 compounds-

(1) Aguja

(2) Ilo; and

(3) Ahere

The 3 of us had released the area to Osu Community about 53 years and it was used as a market.”

Second plaintiff Ben Farotimi also testified inter alia as follows:-

“Farotimi’s father was Olumogbe, now also dead. The father of Olumogbe was Ojise. Olumogbe had 4 children. (He named them as the 1st plaintiff did) sic. The 1st plaintiff’s father is Ogunkolade, the 1st P.W.’s father is Eru-Esu and my own father is Ojo Farotimi.”

The first plaintiff witness Ezekiel Oladipo Oni who did not relate himself with Olumogbe in his evidence in chief told the court below that “Olumogbe is the father of my grand father called Elegbeleye according to history.” Contrary to testimony of first plaintiff who is silent over Elegbeleye and second plaintiff who told the court that he (Elegbeleye) was only a grand child of Olumogbe Ero Esusu. Does this not lend credence to the appellant’s case that he was not granted land by Olumogbe coupled with the confusing if not contradictory evidence at page 13 lines 10 to line 15 and line 31 to line 34. I have already recited both passages elsewhere in this judgment. But for purposes of easy reference and clarity I propose to juxtapose them-

“After winning the war, he was granted land. The land was called ‘Apole Ahere’ near Osu. After the war he was living at ‘Apole Ahere’. From there, he moved to “Ogbon Ahere” where he built a hut. The place is now known as Aiyegbaju-Osu. He died at Ahere, Osu and was buried there.”

The second passage reads as follows-

“Olumogbe was not the first person to settle at Osu and he did not establish Osu; he only settle at Apole Ahere and he founded Ogbon Ahere.”

The learned trial Judge ought to have resolved the apparent contradictions which I have analyzed above including the status of Elegbeleye (the person through whom the appellant is claiming) in Olumogbe family and whose relationship with Olumogbe is just a matter of after – thought tossed up through cross-examinations only.

Be that as it may, the appellant failed to lead evidence of how their grantor, Owa Obokun Ofokutu dispossessed the original owner of the land or came to own it before he granted it to the ancestors of the respondents. The omission of this piece of evidence is crucial to the traditional evidence of the appellant when there is no nexus between it and the Ido war their ancestor, Olumogbe, won on behalf of Owa Obokun Ofokutu. The maxim is nemo dat quod non habet.

In the circumstance, the question is, has the respondents successfully proved their alleged grant? In Odofin v. Ayoola (1984) 11 S.C. 72 at 116 Kawu, J.S.C. said-

If a party relies on, and pleads, a grant as root of title, he is under a duty to prove such grant to the satisfaction of the court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But when … the proof of grant is inconclusive, the bottom is knocked out of the plaintiff’s claim. When his root ceases to stand, the stem and branches will fall with the root. In other words, where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of ownership which should have derived from that root. The position will be different where no specific root of title is pleaded- that is where the pleading is vaguely and broadly based on ‘traditional history’. Traditional evidence …. is also partly factual as to actual events occurring within living ,memory, but it has its main root in what the ancestors and predecessor in title of the claimant on the land from time immemorial. Therefore where the evidence is inconclusive, the case will have to rest on question of fact of ‘act of ownership’ Ekpo v. Ita (1932) 11 NLR 68 does not decide that where a specific root of title is pleaded (like grant or purchase and not proved), the claimant can fall back on acts of possession.”

The respondents have not traced their root of title to a grant of the land in dispute to a person who has the capacity to make the grant. There is a gap in the traditional history of the respondents which makes it inconclusive. The traditional evidence of the respondents having failed all evidence of acts of possession built on the traditional evidence must also of necessity fail since they are without foundation. See Rev. Idowu 0gungbemi v. Gabriel Asamu (1986) 3 NWLR (Pt.27) 161 and Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt.7) 393 at 413 where Obaseki J.S.C. said-

“A claim for declaration of title is not founded on ownership by prescription under native law and custom ….. unless origin of title is valid, the length of possession does not ripen invalid title of trespasser to a valid ownership of title.” The answer to issue 3 is negative, grounds 4, 7, 9 and 10 are successful and are allowed.

On issue of standing by, the evidence of the first respondent under cross-examination accepted by the learned trial Judge reads as follows-

“I am about 64 years old. I know that the defendant sued one Ogunleye in respect of the land in dispute before. I do not know who won the case. We brought this action when we learned that he claimed the land as belonging to his father. I did not learn that you won the case on appeal. The land in respect of which you sued yourselves belong to 3 compounds –

Agija

Ilo; and

Ahere.

The 3 of us had released the area to Osu Community about 53 years ago and it was used as a market. We brought the action to get a declaration only in order to establish that our own family owned the land and not the defendant’s family as wrongly claimed by him.”

The second respondent too admitted under cross-examination as follows”

There was a litigation in respect of part of the land between Ogunleye and the defendant in this case. We heard about the case when in progress. We took no action.”

The learned trial Judge then found as follows-

“The plaintiffs are alleged to be caught by the doctrine of standing-by.

In Ikpang v. Edoho (1978) 2 LRN 29, (1978) 6-7 SC 221 (a case cited by Mr. Oni), the Supreme Court of Nigeria per Aniagolu, J.S.C. declared at page 36 on this doctrine thus, inter alia:-

“The general principle (is) that where a party, quite cognisant of the existence of court proceedings in respect of a piece of land, does not intervene or does not make it known that he has interest in the land, he must be deemed to have no interest in the land and therefore be deemed to be in different to the outcome of the proceedings. Those who, in those circumstances, later lay claim to the land, ….. are land cheats ” (Italics is mine).

The expression “quite cognisant of the existence of court proceedings” signifies, in my view, that no one will be condemned for his silence until he is proved to have had knowledge of the court proceedings. In my considered judgment, a person would be deemed to have knowledge of the proceedings if he were called as a witness in that case or was the grantor of the land and had knowledge that his title was being challenged. If such knowledge is not credibly established, then the doctrine of standing-by will not, in my view, avail the defence to the detriment of such a person. In Balogun v. Agboola (1974) 10 S.C. 111 (1974) 1 All NLR (Pt. 2) 66 (cited by Mr. Adelekun), the Supreme Court of Nigeria per Coker, J.S.C. declared thus, on the point, at page 119 thus, inter alia:-

“Evidence was given by the defence to suggest the inference that the entire …. family knew about the case …. and indeed attended the trial proceedings. By his conclusions on the issue, the learned trial Judge obviously rejected the evidence of the defence on this point.”

In effect, unless the court is satisfactorily able to draw the inference of knowledge, it will reject the contention of standing-by. I am not impressed by the evidence adduced by the defendant that the plaintiffs stood-by and I hereby reject it.”

I am respectfully of the opinion that on the evidence which the learned trial Judge accepted there is direct evidence proceeding from the mouths of the two respondents that they had knowledge of the action between Ogunleye and the present appellant in suit No. HIL/18/84 in respect of the same parcel of land in dispute in the present proceedings. It is therefore an idle talk on the part of the learned trial Judge to be searching for circumstantial evidence from which to infer knowledge of the respondents because there is no better evidence than the one that proceeds from the mouth of the accused and the learned trial Judge more than many should know this! The learned trial Judge, therefore, goofed on the authorities cited to him and which he recited in his judgment to come to conclusion that the doctrine does not apply. The doctrine of standing-by clearly applies.

The answer to appellant’s issue 4 is negative, grounds 2, 5, 8 and 10 related thereto are successful. Since the appeal can be disposed of on appellant’s issues 3 and 4, I do not intend to proceed with consideration of submissions on the remaining appellant’s issues. The appeal is therefore allowed on grounds 2, 4, 5, 7, 8, 9, and 10 of the grounds of appeal which were related to those issues. The appeal succeeds and it is allowed. The judgment of Adeyemi, J., together with all the consequential orders is hereby set aside. The claim of the respondents is dismissed.

The order for costs in the court below is set aside if it had been paid it should be refunded. The appellant is entitled to costs in the court below which I assess at N500.00 and in this court N800.00.

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Other Citations: (1994)LCN/0192(CA)