Egbinola A. Olaleye & Others V. Alimi Akano & Others (2007)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
This is an appeal from the judgment of the High Court, Ibadan, delivered on 19th July 1979, in which the claims of the plaintiffs were refused by the learned trial Judge, Hon. Justice K. Ibidapo Obe.
“The Plaintiffs claims against the defendant is for the sum of N1,000.00 being special and general damages for the trespass committed by the defendants during the month of October 1975 when the defendants during the month of October 1975 when the defendants and/or their agents entered the farmland in possession of the plaintiffs at Podo Area (a plan of which will be filed later) and the 5th defendant/his agents or servant thereby plucked the cocoa seeds of the plaintiffs and carried them away.
Injunction restraining the defendants, their agents or anyone claiming through them from committing any further acts of trespass on the said farm land and in plaintiffs’ possession.”
In that court, pleadings were ordered and exchanged and the plaintiffs’ case was that the plaintiffs and defendants are members of Aladorin family of Aladorin compound, a name derived from the seventy rooms built by the plaintiffs and defendants’ families.
The plaintiffs are descendants of Salako while the defendants’ are the descendants of Osuntoyinbo. Salako settled at Podo, the land in dispute, Osuntoyinbo (the grandfather of the 1st, 2nd and 4th defendants) settled at Alomaja 9 miles away from Ibadan on Lagos Road. The plaintiffs claimed to have been exercising several acts of possession over the land in dispute until the 5th defendant began trespassing on the land. While the defendants’ case is that the family has always held lands as a unit at Isale Osi, where the Aladorin compound was founded, Podo and Alomaja area of Ibadan along Lagos Road and other places; and that the family has held these lands as a unit in undisturbed possession for farming and residential purposes, sold and leased parts of the family land to non family members. In the same way sometime in 1973 following a family meeting sold some portions to the 5th defendant who took possession of the land which led to the action in which the plaintiffs claimed exclusive title to, and damages for trespass.
It is not disputed that appellants and respondents are members of the same family, the Aladorin family of Isale Osi in Ibadan. The progenitors of the family were Osuntoyinbo and Salako who were born of the same parent Alao, both came from Iba Oluyole and settled at Isale Osi in Ibadan, Osuntoyinbo became the first Mogaji (head) of the family being older than Salako.
The plaintiffs/appellants and the then 3rd defendant belong to the Salako section of the family while the 1st, 2nd and 4th defendant, belong to the Osuntoyinbo. The 1st defendant is the current Mogaji of the family who took over from the appellants’ direct father (Olaleye) who was his immediate predecessor.
At the end of the hearing, the learned trial judge refused the claims of the plaintiffs now appellants. Dissatisfied with the judgment the plaintiffs have appealed to this court. The appellants (then plaintiffs) initially filed a Notice of Appeal containing three (3) grounds, later with the leave of court filed five (5) additional grounds of appeal.
The appellants formulated three (3) issues for determination and these are:
(1) “whether the evidence of boundary men in this case was not sufficient to prove the plaintiffs case.
(2) whether the learned trial judge properly applied the rule in Kojo II v. Bonsie before rejecting the plaintiffs claim.
(3) Whether the learned trial judge ought to have rejected the plaintiffs case based on the totality of the evidence led before him.”
The respondents also formulated three (3) issues for determination which were similar to those of the appellants but differently couched. I adopt those of the appellants for the resolution of the issues.
In respect of issue one, in his brief of argument, learned counsel for the appellants argued that the appellants called boundary men (from the families of Agodi, Wokowoko, Akande, Ajani and Akobi Elerin) to the land in dispute who gave evidence that the land belonged to the plaintiffs, which the 1st defendant/respondent agreed with i.e. that their father Salako farmed on the land long ago which the plaintiffs inherited, further that the defendants/respondents are not owners of this particular land but owned land at Alomaja 9 miles away from Ibadan and that the 1st defendant had in the past shared economic trees on the land amongst the members of the plaintiffs’ family. The learned counsel argued that these pieces of evidence not having been contradicted ought to have been deemed admitted and was sufficient to find for the plaintiffs and relied on the cases of A.G. Oyo v. Fairlakes Industries (1989) 5 NWLR pt 121, 125; Kosile v. Folarin (1982) 3 NWLR pt 107 and Iriri v. Eihurhobanu (1991) 2 NWLR pt 173, 252 at 262.
Finally, on this issue that the trial court’s failure to make a finding on the evidence of the boundary men occasioned a miscarriage of justice and urged that the judgment of the trial court be set aside and relied on the case of Karibo v. Grend (1992) 3 NWLR (pt 229) 426 at 439 – 440.
In response to the first issue the learned respondents’ counsel argued that for the appellants to succeed in their claim, they needed to have proved exclusive title of the Salako section of the Aladorin family as well as exclusive title now of Olaleye family. He argued that the evidence of boundary men does not carry special weight but is evidence which the court can evaluate like any other witness which must be examined alongside other evidence adduced in the case; he cited and relied on Ojokolobo v Alamu (1998) 7 SCNJ 14. Further that the evidence of the boundary men is consistent with the respondents’ contention that the land in dispute belongs to Aladorin family and that there is no separate family called Olaleye family. That the boundary men did not state how Salako got to the land but gave evidence of Olaleye farming on the land, not disputed by the respondents. The learned counsel argued that the boundary men’s evidence did not establish Salako’s title and down to the appellants’ considering also the evidence’ of the 4th plaintiff who testified as DW 1 to the effect that the land did not belong to their father.
The plaintiffs in proof of their title called two boundary men Arasi Oyelotua from Akobi Elerin family and Adedigba Abike from Wokowoko family. Arasi’s evidence only confirmed that the appellants’ father Olaleye used to farm on the land and had planted economic trees, which is not in dispute.
The second boundary man (woman) Adedigba’s testimony was of no use since he/she knew nothing about the land. The caretaker (PW 5 Ayoade Akano, Caretaker to 1st plaintiff) called to testify by the plaintiffs confirmed that the land is called “Aladorin farm” which means the farm belonging to Aladorin – the larger family of appellants and respondents, not exclusively that of the appellants.
It is clear by these that the farm products belonged to Olaleye the appellants’ father, by succession to the appellants while title remained with the Aladorin family. The 4th plaintiff who testified as DW1 on behalf of the defendants/respondents gave evidence that her father Olaleye cultivated the land in dispute as a member of Aladorin family who had title with the 1st defendant as the Mogaji who succeeded her father. PW5’s evidence also confirmed that the land in dispute is called Aladorin land.
The evidence of the boundary men did not alter the position of the defendants/respondents that is, that the land in dispute belongs to Aladorin family and that there is no separate family known as Olaleye family owning land, exclusively. The boundary men’s testimony only confirmed that Olaleye farmed on the land in dispute, conceded by the respondents. See Ogbani v. Oja (1996) 6 SCNJ 140 also Odukwe v. Ogunbiyi (1998) 6 SCNJ 102.
The user of communal or family property can never ripen into personal ownership of such land or property. See Alao v. Ajani (1989) 4 NWLR (pt.113) 1 at 17 and Alli v. Ikusebiala (1985) 1 NWLR (PT4) 630. I agree with the learned counsel for the respondents that the evidence of the boundary men was inadequate to establish Salako’s exclusive title, by extension the appellants.
On the other hand one of the plaintiffs (4th plaintiff) gave evidence that the land in dispute did not belong to their father which the trial court believed and preferred as the true position as opposed to the exclusive title claimed by the rest of the plaintiffs. The appellants also agreed that Salako and Olaleye families are members of one family and not different, owning land separately.
Contrary to the argument of learned counsel for the plaintiffs/appellants that the boundary men gave evidence that proved that the land in dispute belonged to the plaintiffs, all their evidence showed was that they farmed on the land, the 1st respondent also said so. No doubt Salako the father of the appellants farmed on the land but the plaintiffs have failed to prove that the land in dispute belonged exclusively to the plaintiffs.
The argument that the evidence of the boundary men was neither controverted nor contradicted by the defendants does not hold water since there was no dispute as to the father of the appellants farming on the land and by extension, the appellants.
The learned trial judge not making any findings on the evidence of the boundary men is not enough to resolve the first issue in favour of the appellants, since their evidence did not carry any special weight as rightly argued by the learned respondents’ counsel but is evidence which the learned trial judge evaluated alongside other pieces of evidence adduced in the case, their evidence here was not conclusive proof of title but possession evidenced by farming. See Ojokolobo v. Alamu (supra).
Boundary men as rightly argued by the learned counsel for the respondents should be treated like any other witness called by a party in a case. A trial court is usually free either to accept or reject the evidence of any witness provided there are sufficient reasons or good grounds for doing so.
It is not only the evidence of the boundary men which a trial court has to consider when dealing with a case where title is in issue in a land matter. The evidence of boundary men is not conclusive.
The court has to consider it along with other pieces of oral evidence and ascribe probative value to each piece of evidence before coming to its conclusion. In this case, there were other pieces of evidence which the court considered and found in favour of the respondents before refusing their reliefs for instance the evidence of the DW 1 and PW5.
The evidence of the boundary men was not decisive of the issues before the court. The location of the land in dispute was not in issue nor were the boundaries. The boundaries or other features of the land were also not in issue.
In my humble opinion, weighing the evidence of the boundary men who gave evidence alongside the other witnesses such as DW1 (the 4th plaintiff) who is a member of the plaintiffs’ family, the evidence of the boundary men was not enough proof of the plaintiffs’ case, this issue is therefore resolved against the appellants.
In respect of the second issue, the learned appellants counsel in his brief of argument, argued that both parties relied on traditional evidence in proof of their case. The plaintiffs’ case is that they farmed on the land having succeeded their father Olaleye who inherited the land from Salako who lived and died on the land in dispute, and gave evidence of grant to Oseni a palm wine tapper.
The learned appellants’ counsel argued that while the respondents relied on traditional history of grant by Iba Oluyole to their father Osuntoyinbo in their pleadings that the evidence led was on settlement and that the respondents’ evidence ought to have failed, counsel cited and relied on the cases of Eboade v. Atomesin (1997) 5 SCNJ 14 and Sanusi v. Adebiyi (1997) 12 SCNJ 25.
He argued that these were conflicting traditional histories in which the rule in Kojo II v. Bonsie ought to have been applied by the learned trial judge. Further that the court cannot resolve conflicting traditional history by believing or disbelieving one or the other, cited that Layinka v. Makinde (200) FWLR pt 109, p. 1565. That by preferring the evidence of Mogaji Alimi Akana to that of the plaintiffs that the trial judge was in error and this occasioned a miscarriage of justice and urged that the appeal be allowed based on this issue.
On the other hand the respondents’ learned counsel submitted that there was no conflict in the traditional history relied upon by the parties. The parties agreed that they all belong to the same Aladorin family and that Osuntoyinbo and Salako progenitors of the family were both sons of Alao.
Therefore there was no need to apply the rule in Kojo II v. Bonsie. The learned trial judge rejected the appellants’ version of traditional history evidence that, because their father farmed on the land in dispute which he passed on to them, the land became exclusively theirs. Learned counsel relied on Sanusi v. Adebiyi (supra) in arguing that there was no need to apply the Rule in Kojo II v. Bonsie where the traditional history as given by one side is rejected. He argued that plaintiffs’ acts of possession cannot be utilized to prove title, they must prove the root of their title through evidence, and cited the case of Obawale v. Williams (1996) 12 SCNJ 415.
Further that the cases cited and relied upon in this issue by the appellants do not apply in the present case.
On the argument that the respondents pleaded grant while evidence was led in support of settlement, learned respondents’ counsel submitted that the burden of proof remained on the appellants and as such are to rely on the strength of their case not on the weakness of the Respondents’ case. He said the burden of proof remains on the appellants. See Umesie v. Onuaguluchi (19951 12 SCNJ 120. Also Onwugbufor v. Okoye (1996) 12 SCNJ 1; Akunyili v. Ejidike (1996) 12 SCNJ 213; Adeniran v. Alao (2001) 12 SCNJ 337.
The Rule in Kojo II v. Bonsie is applicable where there is a conflict in the evidence of traditional history as told by the parties. In Kojo v. Bonsie & Anor (1957)1 WLR p. 1223, it was stated as follows:
“Witness of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanor is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.”
In the present case both parties relied on traditional history evidence. There is no doubt that the parties are descendants of Aladorin family through Salako and Osuntoyinbo whose father was Alao the progenitor of the family. While the 1st and 2nd plaintiffs/appellants claim that Salako and Osuntoyinbo owned the land separately, at Podo and Alomaja respectively. The plaintiffs contended that their father Olaleye farmed on the land in dispute at Podo, by virtue of farming on the land in dispute inherited the entire farm from Salako to the exclusion of all the other children of Salako and Osuntoyinbo (Aladorin larger family). The defendants/respondents and 3rd, 4th and 5th plaintiffs claimed that all the lands were owned by the larger Aladorin family as a unit.
This means that the plaintiffs’ father farmed the land in dispute as a member (and as the Mogaji) of the Aladorin family.
In agreeing with the learned trial judge there was no conflict in the traditional history presented before the trial court which called for the application of the rule in Kaja II v. Dansie.
The issue before the court was whether the Salako section of the Aladorin family owned land separately as presented by the plaintiffs/appellants and whether title therefore became that of Olaleye’s exclusively through inheritance from Salako. The trial court rejected the plaintiffs/appellants’ version of the history therefore there was no need for the application of the rule in Kaja II v. Dansie See Sanusi v. Adebiyi (supra).”
In a situation where the witnesses for one side contradict each other on the traditional history relating to, for example, the land or property in dispute, and/or contradict their pleadings, in a situation such as this, there is no room for the application of the rule in Kaja II v. Dansie. In Iriri v. Erhurhobara (1991) 2 NWLR 252, 269, (Supreme Court) held that a “trial judge is entitled to reject evidence of traditional history which is incredible.”
Also Ogbuakwelu v. Umeanafunkura (1994) 4 NWLR 676, 710 D-F where Uwaifor, JCA held also:
“… but where the traditional histories of both parties are merely in conflict, but each is a probable story on its own, then the best way to test which one is more probable is by reference to facts in recent years as established by evidence.”
In the present case the trial court did so, for instance by looking at evidence of previous sales, share of farm products, sale of land portions.
Where the traditional history of one party is discredited, (on the face of it) there is no need for the application of Kojo v. Bonsie as in the instant case. I therefore, find no substance in appellants’ complaint.
I believe that the plaintiffs/appellants are in possession of the land as members of Aladorin family by virtue of their father’s farms on the land, contrary to the plaintiffs/appellants contention that they are in possession of the land as exclusive owners whereas, in agreement with the defendants/respondents they are in possession as family members of the larger Aladorin family.
The plaintiffs/appellants relied on acts of possession to exclude the defendants/respondents on the land, but they did not establish it through their pleadings or evidence led in the lower court. Apart from acts of possession which was not disputed the plaintiffs/appellants needed to prove the root of their exclusive title to the land in dispute. In Obawale v. Williams (1996) 12 SCNJ 415 it was decided that where the plaintiffs fail to show a better title to the land in dispute, they cannot succeed in trespass against the defendants who also claimed to be in possession of the land.
It is incumbent on the party claiming to be entitled to the declaration of a right to satisfy the court by evidence, not by admission in the pleadings of the adverse party, that he is entitled.
Title must be established by other credible evidence other than just possession.
It is the law that where an individual or a group asserts exclusive ownership as against another on a community, in this case the larger family’s claim to family or communal ownership, the onus is on the individual or group to prove exclusive ownership. This, the appellants did not do, where it is in evidence that Salako and Osuntoyinbo whom the parties were descendants of through Alao their father were of Aladorin family, with the 1st defendant/respondent as the present head (Mogaji) who sold to the 5th defendant/respondent. See Eze v. Igiliegbe (1952) 14 WACA. 61; Ovie v. Onoriobo Kirhie N.R.N.L.R. 169 at 170 and Olisa v. Asojo (2002) 1 NWLR (PT 747) 13 at 31.
Since both parties are of Aladorin family, which is in evidence, they were one unit. The appellants as plaintiffs needed to prove that Osuntoyinbo had been divested of part owner.
To succeed on the traditional history the appellants as plaintiffs needed to have pleaded and led evidence to show how Salako their father derived exclusive title, the person who founded the land, exercise of original acts of possession, or whom the title devolved since its founding. The trial judge weighed the two versions of the traditional history and preferred that of the respondents to the appellants, the trial judge was right in rejecting the appellants’ traditional history as they did no more than say that they inherited the land from their father Salako who farmed on the land having earlier settled on the land alone while his brother is said to have settled at Alomaja 9 miles away from Ibadan. See Obawale v. Williams (supra); Alade v. Awo (1975) 4 SC 21 s at 228: Piaro v. Tenala & Ors (1976) 12 SC 31 at 41; Kalio v. Woluchem (1985) 1 NWLR (pt 4) 616: 19853 SC109 at 150 – 151.
The appellants argued that the respondents in their pleadings relied on grant while they led evidence as to settlement that this is enough to establish the appellants’ title.
In the present case, even though the claim is for damages for trespass, the defendants/respondents not only denied the claim but asserted before the trial court that the land in dispute belonged to the larger family including the defendants/respondents with the 1st respondent as the head (Mogaji) who sold to the 5th respondent, title was therefore put in issue.
It is the law that the burden is on the plaintiffs to prove their claim and must succeed on the strength of their case and not on the weakness of the defendants/respondents case as rightly argued by the learned respondents’ counsel and I agree with him. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337. Also Onwugbifor v. Okoye (1996) 1 SCNJ I, Akunyili v. Ejidike (supra)
In my opinion I believe the land in dispute belongs to the Aladorin family even though the appellants were farming on it and, I hold that the learned trial judge was right in discrediting the evidence of the plaintiffs and in dismissing their claim. In consequence the second issue is resolved against the appellants.
In respect of issue three, the appellants contended that Salako their ancestor came from Oyo and settled on the land in dispute; the plaintiffs eventually inherited the land and farmed on it thus relying on settlement as evidence of ownership and title. Both parties agreed that crops on the land belonged to the plaintiffs.
The plaintiffs contended that they were exclusive owners of the land since they had been farming on it. Also that the testimony of the boundary men showed that the plaintiffs were the owners of the land while the defendants owned the land at Alomaja. The plaintiffs always signed sales agreements to show approval, and that it shows evidence of ownership by the plaintiffs who were not part of the sale to the 5th defendant respondent.
The appellants argued that their traditional history in respect of evidence of possession in recent times which they argued was not contradicted by the respondents and that the court did not consider the evidence of the boundary men which was In favour of the plaintiffs/appellants. The learned counsel in relying on Mogaji v. Odofin (1978) 3 SC91 argued that if the trial court had put the case of the parties on an imaginary scale should have found for the appellants, and urged this court to set aside the judgment of the trial court.
The respondents in response submitted that the evidence led by the appellants were contradictory and completely discredited, that it is the appellants contention that the two sections of the Aladorin family own land separately whereas it is in evidence that Aladorin family is one and have been dealing with their land by selling and sharing the proceeds as a unit.
The learned respondents’ counsel argued that the appellants in their pleadings and evidence in open court did not state how title to the land in dispute became exclusively that of Olaleye (through whom they inherited the land) except stating that Olaleye was one of the children of Salako who farmed on the land after the death of Salako. The learned respondents’ counsel highlighted some of the contradictions in the appellants’ case which rendered their evidence unbelievable. Firstly, that the 1st and 2nd appellants gave evidence that the land belonged to Salako family yet that Salako was not a separate family but a section of the Aladorin family.
Similarly, that Olaleye does not exist as a separate family but are descendants of the Salako section of the Aladorin family thus destroyed the basis of their claim.
Secondly, that the appellants stated in evidence that Salako and Osuntoyinbo owned their separate land and contradicted themselves by admitting that their father as Mogaji of Aladorin family sold some portions of family land, which is what the first respondent has done as Mogaji, selling a portion to the 5th defendant/respondent.
Thirdly, that the appellants who said they did not consent to the sale to 5th Respondent admitted having a share of the sale proceeds.
Fourthly, that the 3rd – 5th appellants were not in support of this case and were not part of the prosecution and 4th appellant testified on behalf of the respondents and testified to the effect that the appellants were not the exclusive owners of the land.
The learned respondents’ counsel argued that with these contradictions the trial court was right to have refused the appellants’ claim, and urged this court to dismiss the appeal.
The learned appellants’ counsel had argued that on sale of the land in dispute to the 5th defendant respondent, the 1st defendant/respondent admitted paying compensation to the appellants which showed that the appellants owned the land. On the contrary compensation paid to the appellants would establish that they were part owner and not exclusive owners of the land. It was also argued that the economic trees on the land belonged to Olaleye family, which showed ownership. There was no doubt as to who owned the economic trees on the land. This was not enough for the trial court to have found for the plaintiffs/appellants as urged by the learned counsel. The trial court was right to have held that having the economic trees on the land and farming on it did not establish exclusive ownership, the appellants needed to prove more than that to show how they as descendants of Olaleye owned the land to the exclusion of the respondents. All the boundary men proved was that the appellants farmed on the land previously farmed by Olaleye their father, before then Salako their ancestor. The evidence of the boundary men did not establish that the land in dispute belonged exclusively to the plaintiffs/appellants. The second boundary man/woman said she knew nothing much about the land in dispute.
The plaintiffs/appellants argument that the defendants/respondents made plaintiffs/appellants signatories when they sold land showed that the parties owned the land in common, not as separate families irrespective of who farmed on it.
It is clear that the root of the parties families is Aladorin family, from where Salako came from, and the appellants had admitted Salako owned the land in dispute The burden was on the appellants to establish the exclusive ownership of Olaleye, this the appellants failed to prove how and when Olaleye became sale owner in his unit of Aladorin family. See Odukwe’s case (supra)
The appellants are claiming through their father Olaleye who farmed on the land, Olaleye who is said to have come into the land on the death of his father Salako. It is the law that a user of family or communal land can never and does not give rise to personal or exclusive ownership of such land. Ogbani v. Oja (1996) 6 SCNJ 140; Odukwe (supra) Olaleye the father of the appellants was the immediate past Mogaji of the family who farmed on the land and planted economic trees, as a member of Aladorin family and owned the crops on the land which were inherited by his children the plaintiffs/appellants while title remained in the Aladorin family. The learned trial judge was right in holding that the traditional evidence of the appellants was not authentic, and believed the 4th appellants (DW 4) that there was no trespass committed by the 5th, respondent. The court was right in rejecting the evidence of the appellants. The 5th respondent by virtue of Exhibits C and D showed that he was properly on the land, having purchased same from the 1st defendant/respondent the Mogaji of the Aladorin family, who transferred proper title to him through the sale.
From the totality of the evidence led by the plaintiffs/appellants the appellants did not establish exclusive title to the land in dispute, as a result I resolve the third issue against the appellants.
For all the above reasons, I find no merit in this appeal, and I dismiss it. I affirm the decision of the learned trial court. I award costs of N30,000.00 against the Appellants, in favour of the Respondents.
Other Citations: (2007)LCN/2565(CA)
