Lajide Onamogba Akuru V. Olubadan-in-council (1954)

Native Law and Custom—Land tenure in Ibadan. Evidence—Traditional evidence on family or communal land—Evidence Ordinance (Cap. 63), section 44. Real Property—Declaration of title—Discretion—Laches and acquiescence.

Facts

Section 44 of the Evidence Ordinance provides that ” where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant ”.

The appellant claimed against the Ibadan Native Authority a parcel of land as belonging to his family, and damages for wrongful leasing to firms and collection of rents by the defendants.

His case was that his ancestor had settled on the land in 1824 and occupied it until 1900 when the Bale’s Council established a market there with the permission of the plaintiff’s family, who collected the tolls, but that in 1904 the Native Authority began to allow European traders to build on the land and received the rents without giving the family any share.

The family did not protest at the time; later, when in 1919 a commission was enquiring into land holdings of non-natives, the family did not air any grievance; nor did they in 1937 claim any compensation in respect of some of the land acquired compulsorily by Government.

The case of the Native Authority was that Ibadan was acquired by conquest and the land vested in the head of the community, who could evict occupiers on payment for improvements and use the land for public purposes or for newcomers likely to benefit the community.

The trial Judge was in doubt whether evidence of tradition could be given for the plaintiff but considered it nevertheless and found it worthless; he also thought that the plaintiff was estopped by laches and acquiescence from maintaining his claim.

The plaintiff appealed from the dismissal of his suit.

Held

(1) Traditional evidence for the plaintiff was admissible undersection 44 of the Evidence Ordinance, but in this case it was worthless.

(2) A declaration of title is a discretionary remedy, and even if the appellant had made out a claim to full ownership up to 1904, the laches and acquiescence of his family since then destroyed any right they may have had to such a declaration.

Appeal dismissed.