John Falaju V. Daniel Amosu (1983)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C. 

The instant appeal has arisen from a decision of the Federal Court of Appeal which set aside the judgment of the High Court of Oyo State of Nigeria holden at Ile-Ife and delivered by S. O. Agbaje-Williams, J., on 28th January 1977. The said High Court had given judgment for the plaintiffs (now appellants before us) in a case which originated from the High Court of the old Western State of Nigeria of the Ife judicial Division and in which the claim was for:

1. a declaration of title to a piece and parcel of land situate at Ilare, Ile-Ife, shown and delineated in a plan GS 144/75 and therein verged green;
2. an injunction restraining the defendant, his servants, agents or privies “from remaining on or laying claim to the said piece of family land”; and
3. recovery of possession of the land.

The summary of the contentions of the parties was this:

For the plaintiffs – that the claims should be granted by reason of the fact that the land in dispute belonged to the family of Esinja Ololokun which allotted it to a member of the family namely, one Titus Agboola – for him to erect a dwelling house and that without the knowledge and/or consent of the family, Titus Agboola purported to sell it to the defendant; that the said Titus Agboola had no legal right to divest the family of the radical title to the land by the conveyance to the defendant; that the said purported sale conveyed no title to the defendant, it being null and void; that the said purported sale was a fundamental misconduct on the part of Titus Agboola for which he should incur a penalty of forfeiture of the land to the family; and that, in the premises, the family was entitled to recover possession of the land;

For the defendant – that the claims should be dismissed because the land in dispute was not family land but the personal property of Titus Agboola who sold it to defendant; that even if it was family land the claims should be refused because the family stood by and watched the defendant complete the original building on the land, resulting in a brand new house, without objection; that therefore it would be inequitable for the court to grant to the plaintiffs the discretionary remedies of a declaration of title, or an injunction, and that, in the premises, the claim for recovery of possession should be refused.

Both parties filed their briefs of argument. The plaintiffs based their brief upon the three grounds of appeal which they filed and which they argued together namely:

“i. The Federal Court of Appeal misdirected itself in law and on the facts in allowing the appeal setting aside the judgment of the trial court on the ground that the trial judge received in evidence matters not specifically pleaded by the plaintiff without giving adequate and judicious evaluation to the other evidence especially the evidence by both parties that the radical title of the land in dispute falls within the plaintiff’s family land as pleaded by the plaintiff.

ii. The Federal Court of Appeal misdirected itself in law and on the facts in holding that the trial judge did not exercise its (sic) discretionary power judiciously in granting the relief of declaration of title when it (sic) took into consideration irrelevant, extraneous matters and unwarranted inferences and insinuations prejudicial to the plaintiff’s case,.

Particulars of Misdirection

a. The defendant had only been in occupation of the premises in dispute for three (3) years at the time of the institution of the action.

b. The defendant’s counsel admitted from the Bar that it was after the close of the case of the plaintiff that he decided to call Titus Agboola his vendor as a witness to testify for the defence and further that it was after the defendant had given his evidence that he decided to call the said Titus Agboola.

c. The plaintiff pleaded and adduced evidence that the members of their family of which defendant’s predecessor-in-title is one had been granted parcels of land on the plaintiff’s family land on which they have erected buildings.

iii. The Federal Court of Appeal misdirected itself in law and on the facts in dismissing the plaintiff’s claim for declaration of title when there was incontrovertible evidence common to both parties that the radical title of the land in dispute belonged to the plaintiff’s family and the onus is on the defendant to prove a better title and the Federal Court of Appeal should have adverted its mind to the doctrine of caveat emptor.

iv. The judgment of the Federal Court of Appeal is against the weight of evidence.”

One fact on which there was no dispute stands out clearly, namely, that the defendant stakes his title on the title of his vendor, Titus Agboola, and that he does not claim any larger title or interest than is possessed by his said vendor, Titus Agboola.

He stands or falls by the title of his said vendor and is subject to whatever limitations are besetting to the title of the vendor.

It was the duty of the plaintiffs the Esinja Ololokun family – to prove their case, which would have entailed a proof:

a. that the land in dispute was part of their family land;

b. that the said land in dispute was granted by the family to Titus Agboola -a member of the family – for the purpose that: he should erect his dwelling house thereon and

c. that the said Titus Agboola had no right to alienate the land from the family or divest the radical title to the land which was vested in the family, from the family, by a purported sale of the land to a stranger, the family not having given him authority or consent to sell the land.

In order to achieve these, the plaintiffs would have had to call independent witness or witnesses to prove the family’s title to the land including that occupied by the family’s grantee – Titus Agboola, if he was in support of the claim of the family to the land, or if he was not In support, then some other evidence which would neutralize Titus Agboola’s adverse evidence. As it turned out, Titus Agboola was in support of the plaintiffs who called six witnesses – John Falaju, the plaintiffs’ representative; David Odofin, the 80 year-old boundaryman from the Odigun Compound; Saliu Oladipo, another boundaryman from Wakesan family, Chief Daniel Adeyemi Awoyode, the 77 year-old Chief of Wasin Compound of Ilare quarters of Ile- Ife who was another boundary man; Raimi Omopariola, the messenger who for years had been the messenger of the Oni of Ife and the go-between of the Oni and Esinja Ololokun family during the yearly Esinja Ololokun festival of the family shrine, and Lasisi Adefioye, the head of the Esinja Ololokun family otherwise known as the Bale. They (the plaintiffs) did not call Titus Agboola who, from the record of proceedings, sat in court throughout the period the plaintiffs and their witnesses testified.

The defendant testified in his own behalf. By some apparently inexplicable reason he chose to call, and did call, Titus Agboola, his vendor, as a witness. This man swore and confirmed, inter alia, that the land in dispute was the property of the Esinja Ololokun family, that he was a member of the said family and was granted the land in dispute to build his dwelling house; that he sold the land with his uncompleted dwelling house which he erected on it to the defendant; that he did not obtain the consent of the family to sell the land to the defendant, and that the two pieces of land which he sold to the defendant remained, and continued to remain, after the sale, the property of the Esinja Ololokun family land.

For the importance of the evidence of this witness, in relation to the case of the plaintiffs, and as against the limitations on the defendant’s interest or title brought about by the latent defect in the title of the vendor, I reproduce in full, his said evidence:

“I am Titus Agboola. I live in Igbara Oke. I live at No. 6 Elenike Street, Igbara-Oke in Ondo State. I am a farmer. I am a cocoa farmer. I know the plaintiff. I also know the defendant. I sold my house at No. 38 Ilare Street, Ile- Ife to the defendant. Sometimes in July 1963. I confirm that I signed exhibit ‘C’ to the effect that I sold the said house to the defendant. Before the transaction, I was living in the house together with my mother, my wife and my family. After the sale, I vacated the house and gave possession to the defendant. I remember that about a year after, this sale, I sold another piece of land with a foundation on it, to the defendant. I gave the defendant certain papers in respect of the foundation.

Cross Examination by Chief Oloyede:

“I am a member of Esinja Ololokun family. The family has a family land at Ilare.

The land is a compound built by the order of Esinja Ololokun family. The land is bounded by Wasin compound, Odigun compound, Wakesman and Ilare Street. We have a Bale in our family. When I was about to sell my house and the land upon which there was foundation I did not go to my Bale or head of my family for his consent to the transaction. I did not even allow him to know about it. lasisi Adefioye (5th P.W.) was the head of my family at the time of the sale and is still the head of my family now. When they were annoyed and angry and began to wage war against me. They told me that I had misbehaved.

They also told me that I had forfeited my right over the land.

They then decided to recover possession of the land from the person to whom I sold it. They passed strictures upon me for selling a sacred piece of land upon which there is the Olokun shrine. I know for certain that a reigning Oni of Ife has a part to play in the worship of the Olokun shrine.

Since I vacated the house, I lived at More in Ife for about one year before I left for Igbara-Oke. To my knowledge, the family offered to pay the defendant back the money purchase price I received from him after the said family became aware of the fact that I had sold it to the defendant. I also know that Ife Chiefs intervened, but that the defendant was adamant and moved not sell it back. The two pieces of land sold to the defendant are still Esinja Ololokun family land.”

(Emphasis mine).

It is to be noted that the defendant called Titus Agboola as an ordinary witness for the defence. The defendant did not raise any objection or complaint to any portion of his evidence either as he was giving evidence or thereafter; he did not seek the leave of court pursuant to S.206 of the Evidence Act to treat him as a hostile witness nor, indeed, did he appear to regard him as hostile. One does not, of course, readily see how he could be treated as a hostile witness if indeed he did not give his evidence from any feeling of hostility but merely as telling the truth of the situation.

In his address to the court, at the conclusion of hearing, counsel for the defendant, Mr. Akinbamidele, did not treat the witness as hostile. He merely submitted that the witness, having executed the deed of conveyance, exhibit B in favour of the defendant and the said conveyance having stated, in the recitals, that the witness was the fee simple absolute owner free from all incumbrances of the land in dispute, he should not be believed that he was not the absolute owner of the land.

But it was Mr. Akinbamidele who called him as a witness for the defence. His evidence, in my view, vis-a-vis the plaintiffs, was clearly an admission upon which the plaintiffs were entitled to rely as a further reinforcement of their assertion of ownership; to their assertion of their not having given consent for the sale, and to their claim to the continuity of the vesting of the radical title in the land in their family.

That this admission should be treated as strengthening the plaintiffs’ case and not merely as weakness in the defence case, not only follows some decisions of the then Federal Supreme Court, but is clearly in accord with good reasoning and common sense. Brett, F.J., was of that view in Akunwata Nwagbogu and Another v. Michael Ogo Ibeziako and Two Others, F.S.C. 205/1959 decided on 3rd March 1960 (unreported) – a view concurred with by the other members of the panel: Sir Adetokunbo Ademola, C.J.N., and Percy C. Hubbard, Ag. F.J. – when he stated, inter alia: 25

“Furthermore, while it is common place that a plaintiff seeking a declaration of title must succeed on the strength of his case, there are occasions when the weakness of the defence tends to strengthen the plaintiff’s case and this may be well such an occasion.”

The same view was expressed by the same Court, differently constituted two years later, on 27th April 1982, in Josiah Akinola and Another v. Fatoyinbo Oluwo and 2 Others (1962-1966) W.N.L.R. 133 at 134 where Unsworth, F.J., had this to say:

”The trial judge held that the plaintiff had failed to establish his case, and said that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. This is true, subject, of course, to the important point that the defendant’s case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to rely.”

It is accepted law that statements made by persons in possession of property, qualifying or affecting their title thereto are receivable against a party claiming through them by title subsequent to the admission. Falcon v. Players Film Company Limited and Others (1926)1 K.B. 393 is an authority for saying that declarations by predecessors in title though not evidence for their successors unless receivable upon specific grounds are receivable where the original owner made an admission in favour of one of the two parties in an action where both claimed a right to a copyright. Thus, in that case, a letter to the plaintiff in an action from a person not named in the record but having a substantial interest in the success of the defendant was admitted as evidence against the defendant as being an admission against the interest of the writer, and also as being an admission by the defendant’s predecessor in title. In short, any limitations to his title, admitted by a predecessor in title become limitations to the title, as against purchasers or persons otherwise acquiring the title, and evidence thereof is receivable against them.

Equally, by section 22 of the Evidence Act, statements made by persons to whom a party to the suit has expressly referred for information, in reference to a matter in dispute, are admissions.

Whether, therefore, in the instant appeal, the evidence of Titus Agboola is looked upon from the stand-point of declaration by a predecessor in title qualifying or affecting his title, or from the stand-point of a statement of a person to whom one of the parties to the suit (in the instant case, the defendant who called him as a witness) referred for information in reference to a matter in dispute (namely, whether title to the land was vested in the Esinja Ololokun family or In Titus Agboola), his evidence must rank as an admission against the defendant.

It is against this background that I am unable, to appreciate or accept the submission of Mr. C.J. Chukura, counsel for the respondent, that the Federal Court of Appeal was right (to use his very words) “in not believing” the evidence of Titus Agboola and rejecting that evidence. Apart, as I have said, from the fact that the evidence of Titus Agboola is an admission against the defendant, I cannot, with all due, respect see that it falls within the province of the Federal Court of Appeal “to believe” or “not to believe”, from the cold print of the record of appeal, the evidence of any of the witnesses whom it had not seen or heard.

In fairness, however, to the Federal Court of Appeal, it clearly gave its reasons why it was of the view that the evidence of Titus Agboola “did not deserve the weight accorded it by the trial judge’. It stated, as per Dosunmu, J.C.A., as follows:

“In the first place, the evidence of Titus Agboola did not deserve the weight accorded to it by the trial judge since he sat in the court during the entire proceedings when the plaintiff and his witnesses testified. When the attention of the court was drawn to the point, it, nevertheless, allowed the witness to testify, adding that it reserved to itself what weight to attach to his evidence. But there is nothing in the judgment of the court that it gave thought to this matter again. In the second place the evidence given by the plaintiff and his witnesses in respect of which the trial court made findings of fact as stated above went to no issue as they are on material facts to be pleaded positively and distinctly and were not, except, of course, the allegation that the witness sold the land to the defendant without consent of the family. If the court discountenanced the irrelevant evidence, as it has to do, then there would be no evidence of how Esinja Ololokun Family became the owner of the land in dispute, who the ancestor was, or any other evidence supporting the claim of the plaintiff that the land is Esinja Ololokun family’s. In that event, the case for the defendant would not come up for consideration at all since the plaintiff did not show a prima facie case.”

It was not therefore a question of the Federal Court of Appeal “not believing” the evidence of Titus Agboola, but one of that Court evaluating his evidence.

What is the legal effect of Titus Agboola remaining in court (and not being out of court and out of hearing, when evidence was being taken) on the evidence he gave before the court

By Sec.186(1) of the Evidence Act, the court, either of its own motion or on the application of either party to the suit, may order witnesses on both sides to be out of court when evidence is being heard, until it is the turn of the witness to testify, but the provision does not extend to the parties themselves or to their legal advisers, although intended to be called as witnesses. Sub-section 2 thereof empowers the court to take such means as it considers necessary to prevent communication with witnesses who are within the court house or its precincts awaiting examination. Obviously, these provisions are meant to ensure utmost veracity of witnesses in order that the court will arrive at a just decision based upon truthful evidence.

There was this dialogue between the trial judge and counsel for both parties before Titus Agboola testified:

“NOTE: At this stage, Chief Oloyede informs the court that this witness has, all along throughout (sic) the proceedings, been present in court even though all witnesses intending to give evidence either for the plaintiff or for the defendant have at all times before the commencement of each days (sic) proceedings been consistently warned by the court clerk to be out of court and out of hearing.

To an enquiry from the court as to why this witness has at all times been present in court listening to all the proceedings without being out of court and out of hearing, Mr. Akinbamidele says that it was after the close of the case for the plaintiff that he decided to call him. To another enquiry from the court as to why he did not tell the witness to be out of court and out of hearing before the defendant gave evidence, Mr. Akinbamidele, says he was sorry for saying that it was after the close of the case for the plaintiff that he decided upon calling the witness; what he meant to say was that it was after the defendant had given evidence and had been cross-examined by Chief Oloyede that he decided to call the witness.”

It was the plaintiffs (and not the defendant who called him) who objected to his testifying and after the court had noted the objection allowed him to testify. The evidence of Titus Agboola had not been rendered inadmissible by reason of the witness having remained in court. Ordinarily, a party is not allowed to impeach the credit of his own witness except where the witness is hostile, as permitted by S.206 of the Evidence Act. It is significant that in his address before the court, counsel for the defendant, Mr. Akinbamidele, did not ask the court to disbelieve Titus Agboola in the entirety of his evidence, but only in respect of that portion of his evidence in which he stated that he sold secretly to the defendant. He would not have sold furtively, he submitted, when his senior brother, one Jacob Abiola – a member of the Esinja Ololokun family – together with five others signed the vendor and purchaser agreements, exhibits C and D.

Fairly recent decision in England has emphasised that

“No rule of law requires that in a trial the witnesses to be called by one side must all remain out of court until their turn to give testimony arises. This is purely a matter within the discretion of the court”

– per Edmund Davies, L.J. in Moore v. Registrar of Lambeth County Court (1969) 1 W.L.R. 141 at 142. Continuing at p.142 ibidem, the same Lord Justice stated:

“Indeed, if the court rules that witnesses should be out of court and a witness nevertheless remains inside, while the trial judge may well express his grave displeasure over such disobedience, he has no right to refuse to hear the evidence of such a witness. An authority, not quite on those lines but nearly so, is to be found in Rex V. Briggs (1930) 22 Cr.App.R. 88. Whether or not witnesses are to remain in court being solely a matter of discretion, judges vary upon that as upon many other matters.”

It is my certain view that, having regard to all the circumstances, especially to the fact that it was the defendant who called him as a witness, the learned trial judge was not disentitled to hear the testimony of Titus Agboola even though he was in court when others testified and that the derivation of title to the land in dispute being peculiarly within the knowledge of the said Titus Agboola, the learned trial judge was right in according credit to the man’s evidence as to the circumstances under which he acquired the land in dispute.

And now to the issue of pleadings made the subject of a complaint in ground 1 of the three grounds of appeal. The Federal Court of Appeal allowed the appeal partly on the ground that the plaintiffs’ pleading was either defective or not clear enough (particularly on the issue of the head of the family) for the trial judge to make some of the findings he made. The Court of Appeal, in part, held:

“But in the matter of (sic) appeal the trial judge made a finding that the head of family did not join in the execution of the conveyance in favour of the defendant when that fact was not an issue raised anywhere in the pleadings. All that was pleaded in para 15 (a) of the amended statement of claim is that the defendant’s deed of conveyance did not convey the Esinja Ololokun family’s interest. That will not allow evidence that one Lasisi Adefioye was head of the family to be properly received……”

The court, later on in the judgment, also stated:

‘This confusion arose because there was no clear averment in the pleadings as to who was the head of Esinja Ololokun family at the material time.”

The plaintiffs had pleaded in their statement of claim that the ownership of the land was vested in the family and that the family had not consented to the sale of the land to the defendant by Titus Agboola. Paragraphs 3,5,6,7,9, 13, and 15(b) of the statement of claim spell out the major facts germane to this aspect of the appeal. They read:

“3. The plaintiff sues on behalf of himself and other members of Esinja Ololo-kun family.

XXX

5. The area verged red in Plan No. GS 144/75 is the property of Esinja Ololo-kun family from time immemorial and this has been known and called Esinja Ololokun compound from the

…… time of Oduduwa of Ife.

6. The said piece of (sic) parcel of land verged red is inundated with buildings of members of Esinja Ololokun family.
7. The land over which these buildings were built by members of Esinja Olo-lokun family is the property of the said family.
8. XXX
9. The radical title of the pieces of land built upon by the said Titus Agboola has not been given to the said member by the entire family.
10. XXX
11. XXX
12. XXX
13. The defendant stated that a deed of conveyance has been executed in his favour by the vendor in respect of the area marked ‘A’ but the family stated that the land is family (sic) an allottee on it and the title in the land is still in the family.
14. XXX
15. XXX

(b) The said deed of conveyance did not convey the Esinja families (sic) interest.”

These were replied in paragraphs 4,5, 6 and 7 of the statement of defence as follows:

“4. The defendant is not in a position to admit or deny paragraphs 1, 5, 6, 7, & 8 of the statement of claim and put (sic) the plaintiff to the strictest proof thereof.

5. The defendant denies paragraphs 3, 9, 10, 11, 12, & 13 of the statement of claim.
6. With reference to paragraph 3 of the statement of claim:

(a) The defendant is unaware of the existence of Esinja Ololokun family.

(b) That Titus Agboola made an absolute sale of the land in dispute to the defendant.

(c) That the plaintiff is an agent of Titus Agboola merely trying to secure the return of the land in dispute to the same Titus Agboola by the back door.

7. Titus Agboola is the owner of the land in dispute. He sold part of the land to the defendant with all the buildings thereon on 4th July, 1983 and the other part on 29th June, 1964.”

It is true that the plaintiffs did not mention their head of family (Lasisi Adefioye) nor specifically plead that the head of the family did not give consent. I am, however, of the considered view that the evidence of Lasisi was properly received for two reasons: firstly, in pleadings, facts are pleadable but not the evidence by which they are to be proved; secondly, in land cases where ownership of land is alleged to be vested in the family, it is trite law, pronounced upon in a long line of decided cases (See, for example, Ekpendu v. Erika (1959) 4 F.S.C. 79), making the issue a notorious one, that the head of the family with the consent of the important members of the family may validly dispose of the land, and that if the head of family disposes of the land without the concurrence of the important members of the family, it is voidable at their instance, whereas if a member of the family disposes of it without the consent of the head of the family, the alienation is void. Therefore, where the statement of claim alleges that the ownership of the land is in the family and that the family had not given consent for alienation, the head of the family being the apex of the family, may, on those averments without his name being specifically mentioned in the pleadings, testify to the lack of consent by the family, in the alienation. Where there is an averment that a family has not given consent there is an implied averment (although rebuttable) that the head of the family has not given consent. An example of implied averment is to be found in an averment of ownership of land which amounts to, and implies, an averment of possession. (Johannes England v. Palmer (1955) 14 WACA 659).

With respect, I am of the view that the pleadings of the plaintiffs were sufficient for the trial court, not only to hear their evidence on their ownership of the land in dispute, but also to receive the evidence of the head of the family tending to show that the family’s consent was not obtained for the alienation to the defendant.

At first glance, the contention of the defendant that even if it was shown that the land belonged to the family of the plaintiffs, the court should not, in equity, exercise its discretion for a declaration of title in favour of the plaintiffs by reason of the fact that the plaintiffs knowingly stood by and watched him develop the land without objection, only to turn round, at the completion thereof, to claim ownership, appeared attractive. Such a stance, he submitted, would be inequitable of the plaintiffs. On a close examination of the circumstances, however, the attraction loses its appeal.

The evidence showed that the defendant was a building contractor, well known in town to build houses for people on contract. Therefore, seeing him build houses for people, or as in the instant case, repair houses for people, would not lead anyone (including the plaintiffs) into concluding that he was building or repairing his own house. The house of Titus Agboola in question, had already, on the evidence of the defendant, been roofed before the defendant bought it. Titus Agboola was living, he said, on the ground floor “in the fourth part of the house”.

The defendant, on his own testimony, did not erect additional walls. He only repaired the existing walls. Again, the defendant did not go to live in the house after the purchase. Titus Agboola’s tenants living in the house continued to live there after the sale even though Titus, his family and his mother packed out into a nearby house at 81 More Street, Ile-Ife. Under cross-examination of counsel for the plaintiffs, Chief Oloyede, the defendant agreed that the sale was secretly done.

He said:

”The sale was conducted secretly”.

Furthermore the head of the plaintiffs’ family, Lasisi Adefioye, gave his evidence on 30th November 1976. In evidence-in-chief he stated that the family got to know about the sale “about three and half years ago”. Calculating from 30th November 1978 the three and a half years would bring the period to about May 1973. The writ was issued on 24th April 1975.

Before then, the family, as testified by Lasisi, made several efforts to coax the defendant into returning the land to them and receiving back his purchase money.

This was his testimony on that issue:

“About three and a half years ago, we learnt that Titus Agboola had sold the house built on our family land. I thereupon summond (sic) a family meeting at which we decided to send for Titus Agboola where he was living outside the town to ask him why he should sell the house. When he came he confirmed to us that he had sold the house. We were annoyed at hearing that he had sold a house built on family land to somebody outside the family and we did not hesitate to express our displeasure by driving him out of the meeting. We then decided to recover back the land from the person to whom he had sold it. We consequently approached Ife Chiefs to help us appeal to the defendant that he give back the land to us and offered to pay him the purchase price got from him by Titus Agboola as the land belongs to the family. The Chiefs summoned the defendant to a meeting at the palace of the Oni of Ife. I was present at the meeting at the Afin where we offered to pay back the defendant the purchase price which he had paid to Titus Agboola. The defendant refused our offer and the plea to give us back the land. Chief Obajio, Chief Obaloran, Wasin, Chief Jagunmosin, Chief Jaran, Chief Lowa and Chief Akogun were some Chiefs present at the meeting. We also tried to get the Oni of Ife to intervene with the defendant. After all our efforts to recover the land back from the defendant failed, we decided to institute these proceedings by nominating John Falaju as the plaintiff.”

And so, it took the family two years at these attempts at extra-judicial settlement involving the Bales and Chiefs of Ife, including the Oni of Ife, before finally deciding on going to court against the defendant. It does not appear to me that the, plaintiffs in these circumstances, could be said to have slept on their right for the equitable principle of standing by to be invoked against them, nor do I consider that the period of two years within which they made attempts, before going to court, to cajole the defendant into returning the land to the family an unreasonably long period for one to conclude that they had acquiesced to the defendant’s adverse possession.

Finally, a point had been raised by the respondent in support of the judgment of the Federal Court of Appeal that the land in dispute was not shown by the plaintiffs to belong to, or be part of the lands of, the plaintiffs. It is difficult to see how this point can be sustained in the face of the evidence accepted by the trial judge, and rightly so, in my view. The trial judge had held upon the evidence called by the plaintiffs and confirmed “in toto” by the defendant’s only witness Titus Agboola, that for some 80 years back, the entire area verged red in the plan exhibit A, had been the property of the Esinja Ololokun family and that it is within that area that the family has their compound as well as their Olokun shrine. There was evidence on which the learned trial judge was entitled to make these findings. The plaintiffs’ representative, John Falaju, swore in evidence that there was the Esinja Ololokun family land and that he, himself, was allotted some parcel of that land on which he built his house. Boundary witnesses were called, among whom were David Odofin, Saliu Oladipo and Chief David Adeyemi Awoyode as hereinbefore mentioned. Both John Falaju and Lasisi Adefioye testified that Esinja Ololokun family allotted the land in dispute to Titus Agboola – a member of the family – to build upon. Added to all these was the confirmatory evidence of Titus Agboola himself, who was called by the defence. Clearly, the learned trial judge, in the light of all this evidence, was entitled to find, as he did, that the land in dispute was part of the plaintiffs’ family land as shown in the plan, exhibit A.

This appeal deserves to succeed and it hereby succeeds. The judgment of the Federal Court of Appeal is hereby set aside and the judgment of the learned trial judge which was set aside by the Federal Court of Appeal, and which granted a declaration of title to the two parcels of land to the plaintiffs together with an order for injunction, is hereby restored. The plaintiffs/appellants are entitled to the costs of this appeal which I hereby assess at N300.00.

SOWEMIMO, J.S.C.: This appeal is from a judgment of the Federal Court of Appeal, Ibadan, which set aside the judgment of the High Court of Oyo State sitting at Ile-Ife.

The plaintiff sued in a representative capacity, and claimed the pieces of land, the subject matter of the claim, on behalf of his family. The defendant on the other hand averred that there was no such family, and, that the pieces of land belonged to one Titus Agboola, whom he called as a witness. In evidence, however, the defendant’s witness, Titus Agboola, gave evidence that the two pieces of land belonged to the plaintiff’s family, and that the radical title to the pieces of land still remained in the family. He admitted being a member of the plaintiff’s family.

The Court of Appeal, however, thinking, I suppose, that the claim before the High Court was a claim by two rival families, proceeded to examine the different derivatives of title by families under Yoruba customary law. It was this mis-apprehension of the case set out in the pleadings that led the Federal Court of Appeal to the erroneous conclusion that the plaintiffs’ claims have failed. In the result, therefore, the Federal Court of Appeal having proceeded on this erroneous view came to set aside findings of fact by a trial judge for no reason whatsoever.

I have read in draft, the judgment just pronounced by my learned brother, Aniagolu, J.S.C., and I agree with his exhaustive analysis of the issues raised in the pleadings, and the findings in the judgment of the learned trial judge. I agree with him that this appeal should be allowed. The judgment of the Federal Court of Appeal, Ibadan, in this appeal is hereby set aside and the judgment of the High Court.

Ile-Ife, is hereby reinstated with its award of costs. There will, therefore, be judgment for the appellant with costs assessed at N200 in the Court of Appeal, and N300 costs in this Court. And this shall be the judgment of this Court.

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SC.50/1982