Chief Adekoya Oke Olukoga & Ors. V. Mrs Olufemi Fatunde (1996)

LAWGLOBAL HUB Lead Judgment Report

ADIO, J.S.C. 

In the High Court of Lagos State of Nigeria, Lagos Judicial Division, the appellants, as plaintiffs, brought an action against the original defendants for the following reliefs:-

“(1) N1,000 damages for trespass to the Plaintiffs’ land at ldiroko along Lagos/lkorodu Road from March, 1975.

(2) Injunction restraining the defendants from further trespassing unto the said land.”

Pleadings were duly filed and exchanged. It was common ground that both the appellants and the vendors of the respondent claimed that they were descendants of one woman, called Jewunola. However, the appellants contended that the radical title to the whole of the land in dispute, which they described as “Owuto land”, was in Jewunola and that they were members of Jewunola family. The vendors of the land in dispute to the predecessors of the respondent alleged that they belonged to Isiba family and that the land in dispute belonged to Asajon Kuyinu who was the husband of Jewunola and the father of Isiba. It was the further contention of the appellants that Kujinu’s wife was a daughter of Jewunola. He was, therefore, a son-in-law of Jewunola and not her husband.

The parties led traditional evidence and there were allegations by both parties of acts of possession and of ownership. There was also evidence that a strip of land, which used to form part of the land in dispute, was at a time acquired by the Government. The dispute between Jewunola family and Isiba family on the payment of compensation to the claimants was dealt with by the Lagos High Court on the application of the Chief Secretary to the Government (Suit No. 1/84/55). In his judgment, Exhibit “P5”, Taylor J, rejected the claim of the Isiba family and upheld that of Jewunola family. There was a direction in the judgment that wide publicity in the newspaper should be given to the judgment to enable other descendants of Jewunola to become aware so that all descendants of Jewunola, including those claiming their descent to her through Isiba might be paid the compensation. Consequently, one Akide, who was said to belong to Isiba family, filed a statement of descent, Exhibits “P14” and “P15”, tracing their (Isiba) ancestry to Jewunola. Subsequently, Taylor, J (as he then was) gave the second judgment (Exhibit “P13”) and ordered that the compensation money be paid, for the aforesaid strip of land required by the Government, to the descendants of Jewunola, including those who had traced their descent to her through Isiba.

The learned trial judge gave consideration to the evidence and the submissions of the learned counsel for the parties. He gave judgment for the appellants. He held that the traditional evidence and other evidence, led by the appellants, alone could not sustain the claim of the appellants but that when the traditional evidence was considered along with Exhibits “P14” and “P15”, which, in his view, confirmed some of the findings in the judgment (Exhibit “P5”) of Taylor J., the appellants’ claim was established. It was on the basis of the judgment of Taylor, J (Exhibit “P5”) which he held estopped the vendors of the respondent from relitigating the same matters in the present suit which had been decided in suit No. 1/84/55 and of what he regarded as admissions, Exhibits “P14” and “P15″, that the learned trial Judge entered judgment for the appellants.

Dissatisfied with the judgment of the learned trial Judge, the respondent lodged an appeal against it to the Court of Appeal. The court below allowed the appeal. The court held that the doctrine of res judicata or issue estoppel was not applicable in this case because the parties, the subject matter and the issue involved in Suit No. I/84/55 and the present suit were not the same. In the case of the alleged admission, the court below held that it did not, in any case, make any difference in favour of the present appellants. The court below referred to the adverse findings made by the trial Judge against the present appellants in relation to the evidence of traditional history, and alleged acts of possession and of ownership by the appellants, and stated that there were no sufficient reasons for it to warrant a reversal of the aforesaid findings made by the learned trial Judge.

The present appellants were not satisfied with the judgment of the court below. They, therefore, lodged an appeal against the judgment to this court. Before dealing with the briefs filed and exchanged by the parties, it is necessary to set out certain factors which influenced the nature of the issues for determination set out in the briefs. The appellants’ claim was for N1,000 being damages for trespass committed by the original defendants. There was also a claim for injunction restraining the original defendants from further trespassing unto the land in dispute. The defence of the original defendants was that the land in dispute belonged to them (defendants). In law, where a plaintiff claims damages for trespass and an injunction against the defendant and the defendant alleges, in his defence, that the land in dispute belongs to him, title is in issue. In order to succeed, the plaintiff has to prove not only that he was in possession at the time the alleged trespass was committed but also that his own title to the land in dispute is better than that of the defendant. See Amakor v. Obiefuna (1974) 3 S.C. 67. In an attempt to prove their case that is, that their own title to the land in dispute was better than that of the defendant, the appellants, led evidence of traditional history and of alleged acts of possession and of ownership. The defendants too led similar evidence in defence. The impression of the learned trial judge, as stated in the judgment, was, inter alia. as follows:-

It seems to me that the respective cases of the parties founded on traditional history are on the evidence evenly matched. The witnesses told their story with confidence and one could not tell who had been correct and who had not. The proper treatment of competing evidence on traditional history is as stated by the Privy Council in Kojo II v. Bonsie & Anor (1957) 1 W.L.R. 1223 at P.1227 ………………………………………………………

…………………….. I have in this case made an attempt to test the correctness of the competing traditional histories by reference to facts in recent years. This also proved inconclusive and evenly matched. Both sides have called evidence of person said to be tenants to both Jewunola and Isiba families. The land is very vast in area and it is possible for either side to have put tenants on portions of the land. When you look again and again at the facts and evidence led, there is hardly anything to go by in the form of pointer or guide to the correctness of the evidence of traditional history. There is clear indication of consistency on both sides on the history told. When one looks at the judgment of Taylor, J. in Exhibit P5, one can glean from it that the parties had told the same story before Taylor, J. as they did before me……………………….

………………………………………………… When the evidence called by the plaintiffs and the defendants is put on that imaginary scale, it is even and it does not tilt in favour of either side………………………..

If I had to decide this case on the evidence of traditional history called by the parties alone, I would dismiss the case of the plaintiff.” There was no appeal by the appellants to the court below in relation to the findings of the learned trial Judge set out above. The court below was, therefore, right in stating that there were no sufficient reasons warranting a reversal of the aforesaid findings. A finding of fact not appealed against stands admitted and undisputed. See Commerce Assurance Ltd. v. Alli, (1992) 3 NWLR (Pt 232) 710.

So, what influenced the learned trial Judge in giving judgment for the appellants were Exhibits “P5”, “P14” and “P15, that is, the judgment of Taylor. J. in suit No. 1/84/55 and the alleged admissions.