Chief Toyinbo Adawon V Saanu Asogba & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The action that led to this appeal was filed at the Agosasa Grade Two Customary Court of Ogun State, and the Appellant’s claim as Plaintiff against the Respondents, who were the Defendants, was for a “declaration of a piece or parcel of land situate, lying and being at Igbole Area, Eyin Ogbe, Agosasa” and an order of injunction restraining them, their agents/servants and children from further trespass on the said farmland. The Appellant testified at the trial Customary Court and called three witnesses, while the Respondents gave evidence themselves and called one witness each in their defence. According to the Appellant, the farmland in dispute belonged to his grandfather, Adawon who gave “Asogba” sanctuary in Agosasa and allowed him to work on the said farmland after Asogba escaped from Idiroko to avoid being killed by his family because he had committed adultery with a housewife of the family. The said Asogba was the father of the 1st & 2nd Respondents and the 3rd Respondent’s grandfather and it is their case that the farmland in dispute belonged to Asogba’s father in law, Akanbi Oliha, who gave it to Asogba after he married Akanbi’s daughter, Omolola, and when she died, the 3rd Respondent’s father, Olayode started to farm on the said land. And after Olayode’s death, the three Respondents continued to farm on the land for decades now without paying Isakole or being disturbed by anyone.

In addition to hearing evidence, the trial Customary Court visited the locus in quo, and its Report of the Farmland Inspection was later read out in Court.

In its Judgment delivered on the 22nd September 1998, it held as follows –

“Upon the whole evidence adduced from both the Plaintiffs, the Defendants, their witnesses and the Land Inspection conducted by the Court, the Court hereby declares –

1. That both the Plaintiff and the Defendants had been working on the farmland in dispute for over 40 years without any disturbances, challenge or molestation from each other.
2. That the Defendants never paid ISAKOLE to the Plaintiff and the Plaintiff too never paid ISAKOLE to the Defendants.
3. That any person or group of persons who acquired a parcel of farmland for over 12 years without molestation, challenge or disturbance from any quarter and never pay Isakole to any person or group of persons becomes rightful owner of such parcel of farmland.
4. That both parties should operate in cooperation as the same extended family.
5. That the Plaintiff should maintain the area of the farmland in dispute he had been operating before now, and the Defendants too should retain the area of the farmland in dispute they had been operating before now.
6. That both parties should continue to live together with mutual cooperation and understanding that existed ever before now”.

Dissatisfied, the Appellant appealed to the High Court, Ilaro Division, Ogun State with a Notice of Appeal containing 5 Grounds of Appeal, and after hearing arguments of counsel, the lower High Court presided over by Olatoye, J., delivered Judgment on the 11th of December 2000, wherein it was held –

“In this case, no evidence of exclusive possession of all the parcel of land in dispute was adduced in the Court below. Inference of exclusive ownership could not be drawn. It is a case of concurrent holding of a portion of the land in dispute for upward of 40 years. As there is no evidence that either Side was paying tribute or ishakole to the other no inference of tenancy would be drawn in favour of either party. The correct and most plausible conclusion would be for each party to hold on to its portion and live in peace with the other. It is therefore my conclusion that the appeal fails and all the Grounds of Appeal are hereby dismissed. Appeal is dismissed.” (Italics mine)

Further dissatisfied with the Judgment of the lower High Court, which affirmed the decision of the trial Customary Court, the Appellant has appealed to this Court with a Notice of Appeal containing 4 Grounds of Appeal. In line with Rules of this Court, briefs of arguments were duly filed and exchanged.

In the Appellant’s brief prepared by A. Adenakan, Esq., the following 4 Issues were formulated as arising for determination in this appeal –

(a) Whether it was proper for the lower Court to have ordered that the Respondents should hold on to the disputed land in their possession as owners thus converting long possession as tenants into Ownership for them.

(b) Whether the Plaintiff in fact claimed ownership of the disputed land by long-possession as against traditional evidence of ownership proved.

(c) Whether non-payment of Ishakole by the Respondents-tenants was evidence that they owned the land when of her evidence showed conclusively that they were tenants.

(d) Whether the sentimental decision of the lower Court that the Respondents-tenants should hold on to the disputed land in the interest of peace was proper when traditional evidence of ownership had been proved.

The Respondents however submitted in their own brief prepared by N. O. O. Oke, Esq., that only one Issue arises for determination and it is as follows –

“Whether the Judgment of the lower Court affirming the Judgment of the trial Customary Court to the effect that each party should hold on to its own portion of the disputed land it had been peacefully cultivating for over 40 years without challenge from either of the parties was perverse.”

In my view, all the points raised can be subsumed into one simple Issue – that is, whether, in the circumstances of this case, the High Court was right to affirm the decision of the Customary Court. The Appellant submitted that under native law and custom long possession by a tenant does not ripen into ownership, citing Kuma V. Kuma (1936) 5 WACA 4 & Ado V. Wasu (1940) 6 WACA 24; that the lower High Court did not properly re-evaluate the evidence, citing Kwan V. Shan (1994) 4 NWLR (pt. 338) 367; and that there is no where in the evidence that the Appellant claimed the disputed land through long possession, which is a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass than a ground to establish claim for declaration of title and damages, citing Atanda V. Ajani (1989) 3 NWLR p. 111) 511 & Awo V. Coo key Gam (1913) 2 NLR 100. Furthermore, that Ishakole under Yoruba customary law is automatic and need not be demanded, citing Olugbode V. Sangodeyi (1996) 4 NWLR (Pt. 444) 503 and the fact that it was not demanded from Asogba did not show that he was the owner of the land that later passed into the possession of the Respondents, thus the tenancy status of their family remained unchanged.

It is the Appellant’s contention that the decision of the lower Court that the Respondents should hold on to the disputed land in the interest of peace was a sentimental decision that was against proved facts that the Appellant’s family is the owner of the disputed land; and that the decision has not done substantial justice, since the circumstances did not permit the application of the equitable rule of long possession, and neither is sympathy a forerunner for justice, citing Ude V. Ojoechem (1991) 2 NWLR (pt. 174) 497.

The Respondents however submitted that the position of the trial Court as affirmed by the lower Court was that the Appellant did not prove its case on traditional evidence, and thus did not make out a case for the exclusive possession upon which the trial Court could grant declaratory relief to the Appellant as being sought. It was argued that the Appellant gave two versions of traditional evidence of ownership of the disputed land; that on the contrary, the case of the Respondents was that they got to the land in dispute historically through an in-law-relationship, which was believed by the trial Customary Court that visited the locus-in-quo. It was further submitted that the expression used by the trial Court may appear to mean partition, but it is not every error committed by a trial Court that will lead to the reversal of its decision on appeal, citing Olubade V. Salami (1985) 2 NWLR Pt. 7) 282 & Mercantile Bank Ltd. V. Adama (1990) 5 NWLR (pt. 153) 747, that the conclusions reached by the two lower Courts are correct and based on the factual evidence before the Court and there was no miscarriage of justice, citing Egba V. Appah (2005) 10 NWLR (Pt. 934) 464; that the Customary Court Judges applied their vast knowledge of the customary law and traditional values of their local communities, thus their decisions must be given due deference, citing Atolagba V. Shorun (1985) 1 NWLR (pt. 2) 630; that the grant of a declaratory judgment, which is discretionary should only be granted where the party seeking it is entitled to the exercise of the Court’s discretion in his favour, citing Alao V. Akano (2005) 11 NWLR (pt 935) 160, and since the Appellant’s claims are essentially declaratory, the duty is on him to succeed on the strength of his own case and not on the weakness of the defendants’ case and this he had woefully failed to do before the lower Court.

It was further submitted that where the Plaintiff has adduced evidence to show title to land, the onus shifts on to the Defendant to prove the contrary, and it is only if at the conclusion of the evidence the Defendant has not rebutted the evidence of the Plaintiff that it could be said that the Plaintiff had established his claim to the declaration of title sought, citing Atuyanya V. Onyejekwe (1975) 3 SC 1, Oronsaye V. Osula (1976) 6 SC 21, Adenle V. Oyegbade (1967) NWLR 136, Awomiti V. Salami (1978) 3 SC 105, Efetirorojo V. Okpalefe (1991) 5 NWLR (pt. 193) 517. It was further argued that the Appellant’s evidence was not believed by the trial Customary Court because it was not cogent and convincing; that the trial court properly evaluated the evidence before it and came to a just decision in refusing the Appellant’s claims, and the High Court was also justified in not disturbing the findings of the trial Customary Court; and that the Judgments of the two lower Courts, which were not sentimental, were based on the inability of the Appellant to prove exclusive possession of the farmland in dispute.

Now, it is trite law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. It is only the trial Court that can determine which witness to believe and which one not to believe – see Awudu V. Daniel (2005) 2 NWLR (pt. 909) 199; Mueller V. Mueller (2006) 6 NWLR (pt. 977) 627. In this case, the trial Court is a Customary Court, and an Appellate Court is expected to examine its records as men of common sense and not as lawyers trained in all the technical details of the rules of evidence, procedure and substantive law. In that light, the cause of action, the nature of the claim, the subject matter of the suit, the issues canvassed, the real parties before the Court and the decision of the Court are to be ascertained from the substance of the Customary Court’s Judgment – see Opawale V. Tunbi (2004) 11 NWLR (pt. 884) 290 & Fasina V. Ogunkayode (2005) 12 NWLR (938) 147 where this Court stated as follows –

“… Customary Courts are Courts of substance and not form… (in) determining the real subject matter in dispute and issues presented at and decided by a Native/Customary Court, an appellate Court has a duty to look carefully not only at the claim, but the entire proceedings including the evidence of the parties, inspection notes if there was a visit to the locus and the Judgment and orders of the Court”.

In this case, the Appellant’s claim was for a declaration of title to the farmland in dispute and an injunction restraining the Respondents, etc., from further trespass to the said farmland. There was no counter claim. However, in arriving at its conclusion that the Appellant and Respondents “had been working on the farmland in dispute for over 40 years without any disturbances, challenge or molestation from each other”, and its decision that each party should “retain the area of the farmland in dispute they had been operating before now”, the Customary Court considered the following facts it established from the evidence, land inspection, and other “circumstances” –

1. That late Ojo the great grand father of the Plaintiff, Adawon, Adenle, Asogba and Olayode all lived together; built houses, died and were buried at Idita Compound, Agosasa.
2. Whereas, by the time the ancestors were working together on the farmland in dispute, there was no individual demarcation, challenge, disturbance or molestation.
3. Whereas, when Adawon died, Olayode, father to the 3rd Defendant was living with Adenle and working together with him on the farmland in dispute.
4. Whereas, both the Plaintiff and the Defendants had been working together on the said farmland in dispute for over 40 years without any disturbance, molestation or challenge from each other. The Defendants never challenged the Plaintiff and the Plaintiff too never challenged the Defendants on the land.

It was also observed in the evidences that neither the Plaintiff nor the Defendants paid any rebate or Isakole to anybody since they had been working together on the farmland in dispute.

5. That the Defendants should now prepare a written document for the Plaintiff, that the farmland in dispute belongs to Adenle’s family could not be admitted by this Court, since there was no such written document between Adenle and Olayode when they were working together on the farmland in dispute and paragraph 4 of this Judgment above refers.
6. Whereas, whatever was owned by Omolola could be inherited by Olayode her son and when Olayode died Akano has right to inherit whatever his father left behind, including landed property, also when Adawon dies Adenle his son has right to inherit whatever his father left behind, including landed property and when Adenle died, Toyinbo (Appellant) has right to inherit his father’s property including landed property.
7. Whereas, the Defendants in their evidence before the Court confirmed it that the Plaintiff had been working on the farmland for over 30 years and that the Plaintiff too in his evidence confirmed it that the Defendants had been working on the farmland for over 30 years.

(Italics mine)

8. Whereas, the 1st P/W, Mr. Fasasi Adawon, said in his evidence that he once told the Defendants to continue to work on the farmland in dispute without going beyond the boundaries. He went further to tell the court that Asogba, father to the 1st and 2nd Defendants respectively worked on the farmland in dispute for over 30 years before he died.
9. And when the Court went to inspect the farmland, the Court discovered that there was no individual demarcation on the farmland except the only general demarcation of Peregun plants that embrace the whole farmland together.
10. Whereas, the 3rd P/W Sule Ganiyu in his evidence told the Court that Olayode actually worked on the farmland in dispute together with Adenle. He went further to tell the Court that he worked on the farmland between 1967 and 1975 and had common boundary with Adefalu Asogba, the 2nd Defendant.
11. That Olayode was driven away from the farmland in dispute when he was young by Adenle could not be true, because, if Olayode had been driven away by Adenle from the farmland in dispute while young, Olayode’s children would not have been able to work on the farmland in dispute after his death. And Olayode’s children had been working on the farmland in dispute for over 30 years now according to evidence before the Court.
12. Whereas under cross-examination by the Court, the 3rd P/W Sule Ganiyu told the Court that there could not have been court action against the Defendants, if the Defendants had not leased part of the farmland in dispute to the Eguns. (Italics mine)

I have to quickly say that there is some merit to the Appellant’s submissions. To start with, the trial Customary Court held that anybody “who acquired a parcel of farmland for over 12 years without molestation, challenge or disturbance from any quarter” and never paid Isakole to anybody becomes rightful owner of such parcel of farmland. But that is not the law. Long possession cannot ripen into ownership of land under customary tenancy – see Ajao V. Obele (2005) 5 NWLR (pt. 918) 400. long possession is more of a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass against the true owner – see Magaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 393 SC. In this case, the lower High Court held –

“It has been submitted by learned counsel for the Appellant that long possession cannot ripen to ownership. This is true to an extent.

However, it has been held and is now the law that long possession can be used as a shield or defence like in this case. It is the Plaintiff who is claiming title through long possession of the disputed farmland. The Defendants are therefore free to use their own long possession as a defence against eviction or dispossession and an injunction”.

The lower High Court’s conclusion cannot be faulted, but the same cannot be said for its decision to affirm the trial Court’s Judgment and order each party to “hold on to its own portion and live in peace with the other” because –

“It is a case of concurrent holding of a portion of the land in dispute for upward of 40 years. As there is no evidence that either side was paying tribute or Ishakole to the other no inference of tenancy would be drawn in favour of either party.” (Italics mine)

There is no such thing in the eyes of the law as concurrent possession by two persons claiming adversely to each other. What the law does is to ascribe possession to one of them with better title – see Awoyoolu V. Aro (2006) 4 NWLR (pt. 971) 481 Sc, Egba V. Appah (2005) 10 NWLR (Pt. 934) 464, Anyakora V. Obiakor (2005) 5 NWLR (pt. 919) 507, & Adedipe V. Theophilus (2005) 16 NWLR (pt. 951) 250. On top of that, there are situations where Ishakole is not paid and yet customary tenancy exists, e.g., where the tenant unequivocally recognizes the position of overlord of the landlord, a customary tenancy exists whether Ishakole is paid or not or where the landlord asks the tenant to stop payment of Ishakole because of very long association and the good behaviour of the tenant – see Akinlagun V. Oshoboja (2006) 12 NWLR (pt. 993) 60 SC & Ajao V. Obele (supra).

In other words, the Respondents do not automatically “become rightful owners” of the farmland in dispute merely because they had worked on the said farmland for a long time without being challenged by anyone, and the fact that they did not pay Ishakole to anyone is also neither here not there. The Respondents did not file a counter-claim to the farmland in dispute, and the law is quite settled that that where a Plaintiff’s claim is dismissed for failing to prove title, a Defendant who has not counter-claimed for declaration of title to the same land does not automatically become entitled to the land – see Jinadu V. Esurombi-Aro (2005) 14 NWLR (pt. 944) 142 & Anwoyi V. Shodeke (2006) 13 NWLR (pt. 996) 34 Sc. In this case, the Respondents did not counter-claim for declaration to the farmland, and their evidence of long possession is a mere defence to the Appellant’s claim and nothing more. The main issue that should have concerned the two lower Courts was whether or not the Appellant had sufficiently proved his claim to the farmland.

The Appellant urged this Court to allow this appeal and declare him as the rightful owner of the disputed land, but it is not as simple as that. The law is settled that in a claim for declaration of title, the onus is always on the Plaintiff to establish his claim, and it is not open to him to rely on the weakness of the defendant’s case – see Adewuyi V. Odukwe (2005) 14 NWLR (pt. 945) 473 SC, where the Supreme Court held that the standard of proof in such cases is not different from that required in civil cases generally. The only difference rests on the fact that the burden of proof is on the Plaintiff who is claiming title, and that it never shifts to the Defendant throughout the trial. “The difference therefore, lies not in the standard of proof, but on the burden of proof’. In this case, the Appellant relied on evidence of traditional history, which is one of the accepted methods of establishing title to land. However, it is well settled that a party relying on evidence of traditional history must show who his ancestors were and how they came to own and possess the land and eventually passed it to him – see Oyadare V. Keji (2005) 7 NWLR (pt. 925) 571 Sc, & Ojoh V. Kamalu (2005) 18 NWLR (pt. 958) 523 SC, where Tobi, JSC stated as follows –

“The evidence required is not evidence of yesterday or a few years ago but one of many years; what the lawyers call “immemorial” evidence, which means back to ancient times. In other words, for evidence of traditional history to be acceptable, it must go back to ancient times in the sense that the evidence existed for a very long time. The evidence must have endured through generations”. (Italics mine)

I say without hesitation that the Respondents are right, the Appellant clearly failed to establish his claim to the farmland in dispute. His evidence was not only vague but very weak indeed. He had no clear cut explanation as to how the land got into the possession of his father whom he traced the land to. Under cross-examination by the 1st Respondent, he replied as follows –

“My grandfather came from Ado-Odo. My father did not bring land from Ado-Odo, but he settled at Agosasa before Asogba. It was when Adawon settled at Agosasa here that he owned the farmland in dispute. I do not know whether or not the farmland has a purchase receipt but I know the land was owned by Adawon.” (Italics mine)

He replied as follows to questions put to him by the trial Customary Court –

‘The name Adawon is not a name but an Appellation the real name is OLUBODUN OKUNKUN BABA ERI. He was a warrior. The land was given to Adawon as a gift for his valiance at war. “(Italics mine)

His witnesses were also of no help. The 1st witness, Fasasi Adawon, his 80 years old elder brother, replied questions from the 1st Respondent as follows –

“I do not know where the father to Adawon late Ojo came from. I do not know from where the land was brought. The land was brought from Ado-Odo to Agosasa. When Ojo came I do not know who was here before him.”

Under cross-examination by the trial Customary Court, the 1st P/W replied –

“I do not know how Adawon got the land. The Defendants’ father had been working on the farmland over 30 years. I do not know the boundaries of the land that belong to Asogba. I do now know how long the defendants had been working on the farmland. The land was not brought by Adawon.”

The 2nd P/W, Jimoh Adawon, his brother, replied the 1st Respondent, thus –

“The father of Adawon is Kongbe. Ojo Kongbe did not come to Agosasa he stayed at Ado-Odo. His son Adawon came to Agosasa. Adawon was not born at Agosasa. Adawon was born at Ado-Odo. Adawon came from Ado-Odo to live at Agosasa. Adawon came to meet people at Agosasa but I do not know them.” (Italics mine)

Now, if Adawon’s father never came to Agosasa, and Adawon was born in Ado-Odo and later came to Agosasa, how, why or when did the disputed farmland get into the possession of Adawon who passed it to the Appellant? The Appellant clearly failed to provide answers and he had the onus to prove that he had a better title to the farmland in dispute than the Respondents. The Respondents on the other hand testified that they got to the land in dispute historically through an in-law-relationship, that Asogba got married to Omolola, the only daughter of Akanbi Oliba, who gave the farmland to him to be cultivating for the purpose of feeding his daughter, and Omolola begat Olayode who equally farmed on the land and died there, after which ownership, possession and cultivation descended on them. The Appellant also testified that Asogba married Omolola at Agosasa and begat Olayode. His story though is that after Adawon died, Olayode was living with his father, Adenle, until “Olayode was proving that the farmland belonged to his father Asogba” and Adenle drove him away. The trial Court did not believe him –

” That Olayode was driven away from the farmland in dispute when he was young by Adenle could not be true, because, if Olayode had been driven away by Adenle from the farmland in dispute while young, Olayode’s children would not have been able to work on the farmland in dispute after his death. And Olayode’s children had been working on the farmland in dispute for over 30 years now according to evidence before the Court”.

(Italics mine)

The conclusion of the trial Customary Court that both parties had been working together on the farmland in dispute cannot therefore be faulted, which means the Appellant did not prove that he had exclusive possession. “Possession” in law means exclusive possession, and where it is not exclusive, the law will definitely not protect it – see Oyadare V. Keji (supra), & Fagunwa V. Adibi (2004) 17 NWLR (pt. 903) 544. In this case, there was no evidence of any kind to show that the Appellant owned the farmland in dispute completely to the exclusion of the Respondents, and the end result is that this Court cannot declare him to be the rightful owner of the said land.

In the final analysis, I agree with the Appellant that the decision of the two lower Courts was purely based on sentiments, which has no place in our law. The lower High Court erred in affirming the decision of the trial Court, however, that is not enough to give Judgment in the Appellant’s favour. Having failed to prove his case, the only order that can be made in the circumstances is to dismiss his claim, and I so hold. The appeal is therefore allowed in part. The decision of the Agosasa Grade Two Customary Court of Ogun State in its Judgment delivered on the 22nd of September 1998, and that of the Ilaro High Court of Ogun State in its Judgment delivered on the 11th December 2000 are hereby set aside. In its stead I enter an order dismissing the claim of the Appellant in its entirety.

No order as to costs.

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Other Citations: (2007)LCN/2255(CA)