Josiah Akinola & Anor V. Fatoyinbo Oluwo & Ors (1962)

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UNSWORTH, F.J

This is an appeal against a decision of Irwin, J. dismissing the appellant’s claim for a declaration of title and damages for trespass.

The case was first before the Ake Grade ‘A’ Native Court and was transferred to the High Court by an order made under s.28(1)(c) of the Native Courts Ordinance. There were originally two plaintiffs but the first plaintiff died before the hearing in the High Court and the case was continued by the second plaintiff Ezekiel A. Akintoye. The Plaintiffs in the Native Court claimed that their late father Akinola Abore was the owner of the land, and in their Statement of Claim in the High Court said that they were suing as representatives of the Akinola Abore family of Isaga, Ibara, Abeokuta. It is clear that the plaintiff is bringing this action to protect the family land.

The traditional history is that in the middle of the last century the Egbado people, as a result of the Dahomey war, left their land and took refuge at Abeokuta. They settled outside the walls of Abeokuta and were given an area of land on which to settle. The Egbado tribe consisted of the Ibara, Ilowo, Isaga and Jiga sections and the land was distributed amongst them. The plaintiff claims that the area in dispute is part of the Isaga portion of the land which was settled upon by his family. There was some dispute in the Court below as to whether the land was allocated to the Egbados by the whole of the Egba people or merely by the Ijejas, who reported the matter to the Egba people. It was, however, common ground that land was, in fact, allocated.

The identity of the land which forms the subject of the present action and the alleged acts of trespass, are not in dispute. The land is edged pink in the plaintiff’s plan (Exhibit A). It is bounded on the south-west by the Alakasa stream and on the north-east by a footpath leading from Ibara to Ajo and Owu. It is outside the old walls of Abeokuta.

The issue in this case is whether this land is part of the land allocated to the Egbados, and in particular the Isagas, or whether it is outside that land. The plaintiff alleges that it is part of the land. The defendants put the plain-tiff to the proof of this and make positive averment that it forms part of an area which was retained for the worship of the Oro cult. The trial Judge put the issue in this way:–

“The defendants agree that the Isagas were given communal land when they were originally settled but contend that the land in dispute is not part of such land. They say that the land now in question is on a portion known as `Igboro’ where their Oro Grove for the worship of the Oro diety is situate.”

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 defendants’ case. This is true, subject, of course, to the important point that the defendants’ case may itself support the plaintiff’s case and contain evidence on which the plaintiff is entitled to rely.

Counsel for the appellant argued a number of grounds of appeal which were really detailed reasons for saying that the verdict was against the weight of evidence. Counsel for the respondents urged that the findings of the trial Judge were right and that his findings of fact in favour of the defendants should not be upset.

I am always reluctant to differ from a trial Judge on a finding of fact but a distinction must be drawn between findings of fact based on the credibility of witnesses and findings based on an evaluation of evidence which has been accepted. In the latter case a Court of Appeal is in as good a position to evaluate the evidence as the Court of trial, though it will, of course, give weight to the opinion of the trial Judge (see Benmax v. Austin Motor Co. Ltd., (1955) 1 All E.R. 326). It is on this basis that I will now proceed to examine the evidence.

The evidence for the plaintiff consisted of the plaintiff himself, the plaintiff’s surveyor, a person who said that he had been on the land as a caretaker and the Balogun of Ibara. The trial Judge said that the caretaker did not impress him as a witness of truth and I shall not have regard to the evidence of that witness in evaluating the facts. The plaintiff gave evidence of traditional history. He said that he was born on the land and that his family had built houses on it. He was away from the land for a long period but vi-sited it periodically. He said that his family were not disturbed until the defendants came on the land in 1956 for the purposes of survey. The plaintiff’s surveyor described the land and said that there were buildings on it, and also a vacant plot between other buildings. The land is to the north of the Alakasa stream. The Balogun of Ibara ( a man of 70 years of age) also gave evidence of traditional history and said that the land was settled on by the plaintiff’s ancestor Akinola Abore, who built a house there.

The evidence for the defence consisted of the defendant’s surveyor, the third defendant who is the Bantun of Ijeja, and an old man named Faseun.

The surveyor prepared the defendants’ plan (Exhibit D) and said that he marked on it the Oro Grove (Igboro) which is to the south of the Alakasa stream. He said that in showing the Oro Grove to the south of the stream he did not ask the defendants the extent of the Grove. The plan was neverthe-less put in as the defendants’ plan. The second defendant said that land was given to the Egbados in 1862 by the Ijeja people, who reported to the whole of the Egba tribe. The land in dispute, he said, was not part of that land. The land in dispute includes Igboro and no part of Igboro was given to the Egbados. The third witness for the defence said that the land was Ijeja land and used to be a farm of the Ijeja people. In cross-examination he said this:–

The land in dispute was not an Igboro Grove. The land on which Ijeja people now reside was originally Igboro land and Ijeja land. Igboro and Ijeja come on the land at the same time. We were to-gether. When Ishaga and Ibara came, we broke the wall to allow them to enter-all the Egba people broke the wall and settled the Ishagas where they now are. We settled the Ishagas outside the wall where the land in dispute is.

It seems to me that the overwhelming weight of evidence is in favour of the plaintiff. The Balogun of Ibara said that the land was settled on by the plaintiff’s ancestor, who built a house on it. The plaintiff said that he was born on the land and that his family had built on it. The surveyor saw the buildings and marked them on the plan (Exhibit A). The whole of the land is to the north of the Alakasa stream. The defendants did not suggest that the plaintiffs family had not erected the buildings on the land. The defendants’ case was that the land was not part of the land allocated in 1862 but part of Igboro which was never given to the Egbados. This is inconsistent also with their own plan. I have no doubt that an area of land outside the walls of Abeokuta was retained for the worship of the Oro cult, but in my view the land now in dispute is not part of that land.

For the reasons given in this judgment I would allow the appeal set aside the judgment and order as to costs in the Court below, and give judgment for the plaintiff as follows:–

(a)a declaration that the land edged pink in exhibit A is the family land of the Akinola Abore family of Isaga Abeokuta.

(b)£50 damages for trespass.

The appellant is entitled to costs in this Court and in the Court below which I would assess at a total sum of 114 guineas.

Other Citation: (1962) LCN/0966(SC)