Jimo Giwa Ogunloye & Ors V. Yisa Durosinmi & Ors (1975)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C. 

 This is an appeal against the judgment of Bada , J., delivered at the High Court of Lagos State in the Ikeja Division on the 20th of September, 1973, in Suit No. IK/101/70.

“The plaintiffs’ claim in the Suit is:-
(1)  an account for the rents collected from October, 1969 to date by the defendants from the plaintiffs’ tenants by name:-
(a)    Aro
(b)   Ijebu Igbo
(c)   Affiran
(d)   Ayo
(e)   Azikiwe

(2)  injunction restraining the defendants from further collection of rent and/or any dues from the said tenants.”

The plaintiffs sued for and on behalf of the Ogunloye family of Agboyi Village and the defendants are sued in their own personal capacities. In the Statement of Claim the plaintiffs claimed that they are “the traditional owners of Agboyi Village and its environments from time immemorial.”

On the basis of this averment the plaintiffs claimed to have let some portions of the Village Farm to tenants for the purpose of cutting firewood therefrom. According to the plaintiffs they had been collecting rents from the tenants until they were disturbed in 1959. It was also averred by them that in 1958 one Bata Ajiboye who was then the Head of Odoyi Family at Agboyi Village sued three members of the present plaintiffs’ family individually for trespass and damages in Suit AB/53/58 and it was alleged that the claims in that suit were dismissed.

The plaintiffs also averred that since the judgment in the suit aforementioned, they had not been disturbed from 1961 until sometime in 1969 when their tenants ceased paying rents to them on the allegation that the defendants had forced them (tenants) to be paying rent to them (defendants) and it was for this that the plaintiffs had filed this action.

The defendants, in their Statement of Defence, denied the allegation of the plaintiffs and claimed ownership of Agboyi Village through settlement by their ancestors, and averred that it was their ancestors who brought Ogunloye to Agboyi and permitted him to live on a portion of the land. They claimed that there is a Communal Land in Agboyi which consists of:-
(a)    Ito Ogun
(b)   Ito Asan
(c)   Ito Kurudu
(d)   Ito Balegin
(e)   Ito Asuni
(f)    Ito Agboyi

The defendants claimed that Agboyi originally belonged to the Odoyi the first settler who migrated from Ile-Ife several years ago and founded Agboyi. They also claimed that Agboyi communal land as comprising six Itos belonged originally to Odoyi. The defendants also claimed that the plaintiffs are Ijebus and not Aworis and that their ancestors came from Ijebu Ode near Ikorodu.

Several other averments were made as to the shrines on the land which were being kept by the defendants. The defendant claimed that the plaintiffs and their ancestors were the tenants of Chief Oloto and Alhaji Ashafa of Lagos, in respect of an area of land in Ifako and that it was from that area that the plaintiffs were cutting materials for mats, and that this area is quite different from Agboyi land. With regards to tenants on the land, the defendants claimed that they had for the past 40 years had been tenants on the land and that the rents had been paid to the Chiefs and elders of Agboyi, that is, the present defendants and their predecessors, and that such rents were used for communal benefits, traditional sacrifices to their god, and for the general improvements of Agboyi land.

They also claimed that when the plaintiffs attempted in 1969 to lease Agboyi land to tenants they protested and that after the intervention of the Police and some important people the plaintiffs agreed to stop leasing Agboyi land without the consent of the defendants. They also claimed that the plaintiffs brought their six tenants before the Bale and the Agboyi chiefs and instructed them that they should pay their rents to the defendants. The defendants, however, said that they do not know Ore, Oro, Ayo and Azikiwe and so do not collect any rents from them.

Evidence was led by both parties to support their traditional history and the plaintiffs led evidence with regards to rents which they claimed were entitled to be paid to them. It must here be stated that although the plaintiffs claimed that they had six tenants on the land paying rents to them, the only witness called to support that averment was one Ijebu Igbo whom they had previously claimed to be one of their tenants.

After setting out the facts before him, the learned trial Judge came to this conclusion:-

“In all the circumstances, the plaintiffs have failed to discharge the onus of establishing their claim to the ownership of all the land at Agboyi. The traditional history offered by the 1st defendant is more probable from the facts disclosed in this case.”

On the issue as to whether the plaintiffs are entitled to an account, the learned trial Judge had this to say:-

“The only tenant called as a witness for the plaintiffs was Ijebu Igbo. He gave an account of how he started paying rent to the defendants through the first defendant. His evidence, which I believe, contradicts that of the first plaintiff on material points, namely –

(i)   That it was the first plaintiff who directed him and other tenants to the first defendant;
(ii)  That the emissaries of the first plaintiff were present at the meeting where the rent to be paid was negotiated;

(iii) That the first plaintiff knew about the arrangement.
…..
…..
…..

To grant an order for an account injunction as sought in the plaintiffs’ writ of summons on the evidence offered in support of the claim, in my view, is to hold that the plaintiffs are the owners of Agboyi land for which there is no proof. In the absence of any other evidence establishing the defendants as accounting parties to the plaintiffs, the claim fails and it is hereby dismissed with costs to be assessed. (Underlining ours).

These findings of fact were not challenged before us at the hearing of the appeal. Learned counsel for the appellants urged that in the circumstances of this case, because the plaintiffs did not tender the certified true copy of the judgment in Suit No. AB/53/58, a non suit should be ordered instead of dismissal of their claim.

In the averments in paragraphs 6, 7,8,9, 10, 11, 12, 13 & 14, the plaintiffs alleged that in Suit AB/53/58 the first defendant sued in a representative capacity three individuals who claimed to be members of the Ogunloye family for 100pounds damages for trespass and for an injunction. On the 31st August 1961 the action was alleged to have been dismissed.

The plaintiffs further alleged that since the alleged judgment of 1961, they have not been disturbed on the property until sometime in 1969. There is no averment in the Statement of Claim that they will be relying on the judgment as establishing their title to the land. The learned trial Judge who heard the case had this to say:’
“As part of their case the plaintiffs pleaded certain applications made in Suit No. AB/53/58 by one Bata Ajiboye, as the then head of the defendants’ family and also the proceedings and judgments in the said suit….

Although the certified true copy of the proceedings was tendered Exhibit ‘PW9’, the certified true copy of the judgment was not tendered nor was evidence given concerning it. None of the orders made in pursuance of the interlocutory applications pleaded was produced and tendered in evidence. In the circumstance I cannot act on these averments without proof nor on the judgment even though the uncertified copy was filed with the Statement of Claim.

The plaintiffs relied heavily on the proceedings and judgment in Suit No. AB/53/58 earlier mentioned, but at the hearing very little was done in adducing evidence to support what was pleaded. If the plaintiffs had intended the proceedings and judgment to be the basis of res judicata between the parties to the present proceedings learned counsel for the plaintiffs should have taken this as a preliminary points, a course which would have narrowed down the issues involved in this matter with perhaps subsequent curtailment of these proceedings.

The first plaintiff in his evidence said that the claim for account in this suit is in respect of the same land as in suit No. AB/53/58. According to Exhibit ‘PW9’, there was a plan filed in that suit and the land was a portion of Agboyi land. In the present case there is no proof before me to support the first plaintiff’s assertion in the absence of any plan in relation to each suit.”

In considering whether a non-suit should be entered or not, this court has set out in Ejiofor v. Onyekwe & Ors (1972) 1 ANLR (Pt. 2) page 527 this guideline:-

“(3)  If a plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to a “technical hitch”, the evidence of the merits showing the entitlement of the plaintiff to the land claimed or portions of it and the defendants not being entitled to the judgment of the court, the interest of justice demands that such a plaintiff should not be forever  shut out from re-presenting his case. In such circumstances the appropriate order is one of non-suit, which in the present case would have obviated the necessity for the imperfect declaration covering an imprecise portion of one of the areas in dispute and the irregular dismissal of the claim for declaration of title in respect of an undisputed but imprecise portion of the other area.”

The learned trial Judge had found as a fact that there are about six families owning land in Agboyi. He also found on the evidence that the plaintiffs have not established that the defendants are an accounting party to the plaintiffs. On the issue of ownership, both sides had fought that out on the basis of traditional history, and this had been decided in favour of the defendants. It has not been shown before us, at the hearing of the appeal, that the judgment which was to be tendered would have established title in favour of the plaintiffs.
Although the certified true copy of the proceedings was tendered in evidence, the judgment in Suit AB/53/58 was not attached. The attention of the lower court or this court was not drawn to either claim or the pleading from which it could be inferred that issue as to title was raised for a judicial decision. All the averments that the plaintiffs will rely on certain interlocutory orders were never proved in evidence. In the circumstances the failure to prove all these averments, which must be contained in the certified true copy of the proceedings tendered in evidence was ‘technical hitch’ and therefore the test applied in Ejiofor’s case (supra) could not be extended to this case.

The main argument canvassed before us revolves on the failure of counsel who handled this case in the lower court, to tender the certified true copy of the judgment and because of this a non-suit should be entered. But this case was based on the ground that plaintiffs’ six tenants, instead of paying their rents to plaintiffs, paid to the defendants.

Plaintiffs called one of the six tenants and his evidence was that it was on the instruction of the plaintiffs that he started paying rents to the defendants. By their own case the plaintiffs failed to prove that the defendants were accounting parties to the plaintiffs in respect of rents collected by them.

The appeal must therefore fail. The appeal is therefore dismissed and the judgment of the lower court confirmed with costs assessed at N158 in favour of the respondents against the appellants.

Other Citation: (1975) LCN/1996(SC)