Home » Nigerian Cases » Supreme Court » Mogaji Lasisi Atanda & Ors. V. Salami Ajani & Ors. (1988) LLJR-SC

Mogaji Lasisi Atanda & Ors. V. Salami Ajani & Ors. (1988) LLJR-SC

Mogaji Lasisi Atanda & Ors. V. Salami Ajani & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

CRAIG, J.S.C.

The plaintiffs’ claims in the High Court of Oyo State, holden at Ibadan were for:

“1. Declaration of title according to Native Law and Custom to a piece or parcel of land situate at Isale Oje, Ibadan in Oyo State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed in the action.

N250.00 being general damages for trespass committed by the defendants, their servants or/and agents on the said land on or about July, 1972.
Injunction to restrain the defendants, their servant or/and agents from entering or committing further trespass on the said land.”

Pleadings were filed and exchanged, and at the end of that exercise, the matter proceeded to trial before Ayorinde, J. After hearing evidence, the learned Judge held that both parties had a “semblance of title” to the land surrounding the land in dispute, but he dismissed the plaintiffs’ claims because

“they have not adduced convincing evidence of ownership to the whole area of land in dispute to the exclusion of others…….”

The trial Judge also held that the plaintiffs had failed to prove the identity of the land in dispute with certainty.

The plaintiffs were dissatisfied with that judgment and appealed to the Court of Appeal, Ibadan.

That court, after hearing arguments dismissed the appeal and affirmed the judgment of the trial court. This is a further appeal against the decision of the lower court.

In this Court, the plaintiffs/appellants have lodged five original grounds of appeal, which I find to be extremely prolix, and I do not intend to reproduce them. However, these grounds appear to have been admirably incorporated in the five additional grounds of appeal which were filed and argued with the leave of this Honourable court. Those grounds are much more succinct and are as follows:

“(1) The learned Justice of Appeal who delivered the lead judgment concurred in by the other Justices of the Court of Appeal, erred in law by holding at page 149 lines 3 to 6 of the Record that “the respondents joined issue with the appellants on the question of possession vide evidence of 1st D.W. and D.W.3,” and thus came to a wrong decision in the case.

Particulars of Error:

(a) It is the principle of the rules of practice and procedure that issues are joined on the pleadings and not on the evidence adduced on behalf of the Defendants. The formulation of issues by a trial court, not based on the pleadings filed by the parties in a case may invalidate the judgment as laid

down in the case of Veronica Graham & Ors. v. Lawrence Esumai & Ors. (1984) 11 S.C. 123.

(b) The Appellants having established that their title originated from a rightful owner, namely, Balogun Oderinlo, the question of possession ceases to be a relevant issue in the case and it is a relevant issue only where the evidence of ownership is inconclusive as laid down in the case of Mumuni Abdulai v. Ramotu Manue (1944) 10 WACA 172.

The said learned Justices of Appeal erred in law when, without or any due consideration, they upheld the learned trial Judge’s dismissal of the Plaintiffs’ claims after the learned trial Judge had found, as admitted by the Defendants’ witnesses that the original owner of the land in dispute was Balogun Oderinlo from whom they, the Appellants, claimed to have derived their title to the land as opposed to Delesolu from whom the Respondents claimed to have derived their own title.

Particulars of Error:

(a) The learned Justices of Appeal merely recited the arguments of the Appellants at Pages 146 to 148 of the Record and summarily dismissed them without due consideration.

The learned Justices of Appeal erred in law in holding at Page 148 line 30 to 34 of the Record thus:-

“having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership.”

whereas in a case of this nature in which the Appellants established their succession to the land through an admitted lawful settler-owner of the land. The onus lay on the Respondents to dislodge that ownership by cogent evidence as laid down in Ricketts v. Shote (1960) L.L.R. 201 and Mahinmi v. Ladejobi (1960) L.L.R.233.

The learned Justices of Appeal erred in law when they held at Page 151 lines 6 to 12 of the Record that the Appellants failed to discharge the onus of proof on them by reference to the case of Kodilinye v. Odu 2 W.A.C.A. 336 when in law the principle enunciated in that case is not of relevance in this case.

Particulars of Error:

At Page 146 line 22 to Page 148 line 28 of the Record, the learned Justice set down the arguments of the Appellants as follows:-

“The respondents in paragraph 5 of their statement of defence averred that the land in dispute forms part of the land granted by Delesolu to Bitekanle, the ancestor of the respondents but 1st D.W. (i.e. 2nd respondent) under cross-examination admitted that Oderinlo granted land including land in dispute to Delesolu originally. That being so, 1st respondent has failed to trace his radical title to Delesolu. In other words, the respondents by their tacit admission that Balogun Oderinlo was the radical owner of the land in dispute from whom they obtained their grant.”

The learned Justices of Appeal erroneously dismissed these and other arguments on the ground of the Plaintiffs’ “failure to adduce convincing evidence of exclusive possession of the land in dispute” contrary to the decisions in Mumuni Abdulai v. Ramoru Manue (1944) 10 W.A.C.A. 172 and Ricketts v. Shore (1960) L.L.R.201.

The learned Justices of Appeal erred in dismissing the appeal on the ground that “there was none to choose between the Appellants’ as well as the Respondents’ case” as per Page 151 lines 11 to 12 of the Record, and the learned trial Judge having found that the original settler-owner of the land including the land in dispute was Balogun Oderinlo from whom the Appellants derived their title, there was no room for holding that there was none to choose between the Appellants’ case and the Respondents’ case.”

In his brief of arguments, Mr. Kehinde Sofola. S.A.N., has set out the following issues for determination:

“(1) Whether the appellants are not entitled to succeed in their claim for declaration of title to the piece of land in dispute and to the other reliefs claimed, the learned trial Judge having found that the appellants proved their radical root of title in Balogun, Oderinlo admittedly the first settler on the land, whilst the defendants failed to establish their root of title.

(2) Whether the learned trial Judge and the Court of Appeal were right to have permitted the respondents to found their claim to title to the piece of land on a grant from Balogun Oderinlo whereas in their pleadings they had alleged that they derived their title from Delesolu, and denied that the said Balogun Oderinlo was the settler on the land.

(3) Whether having found that the appellants derived their title from Balogun Oderinlo, it was nevertheless necessary for the appellants to establish evidence of recent user by them.

(4) The appellants having established that their title to the piece of and originated from the first settler and the rightful owner, Balogun Oderinlo, whether the respondents discharged the onus of proof laid upon them by law to dislodge the plaintiffs’ claim.

(5) Whether the Court of Appeal was right to have held that the respondents join issues with the appellants on the question of possession and whether that question nevertheless remains material having regard to the evidence of D.W.1 and D.W.3, the respondents having admitted that the person from whom the appellants derived their title to the piece of land, namely, Balogun Oderinlo, was the first settler on the land contrary to the respondents’ pleading.”

In his own brief, Mr. Aiyedun for the respondents has put the issues differently. In his view, the real issues are:-

(i) Whether the Court of Appeal was wrong in affirming the decision of the learned trial Judge upon a calm review and meticulous evaluation of the evidence before the court.

(ii) Whether such findings if fact can be lightly set aside by the Supreme Court more so as there have been such concurrent findings by the two lower courts.

(iii) Whether the appellants are entitled to succeed in their claim for declaration of title when their case supported that of the respondents as per the admission of the appellants’ key witness, Salami Oyegoke Oderinlo (P.W.6).

(iv) Whether in law the appellants ought to have succeeded not on the strength of their own case but on the weakness of the respondents’ case (if the case of the respondents was weak).”

Although the issues formulated by both parties are differently worded, it is quite clear that the appeal herein turns on the facts and the evaluation of these facts. It is not surprising therefore that the respondents’ counsel was quick to point out this fact and in his oral arguments, he emphasised the point that there has been a concurrent finding of facts by the two lower courts; counsel therefore urged this court not to disturb those findings.

The Supreme Court has in a number of cases laid down the principles governing a review of the facts by an appellate court. Broadly speaking it is the primary function of a trial court, which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them. See Chinwedu v. Mbamali (1980) 3-4 S.C. 31 at page 75 per Obaseki, J.S.C.; Enang v. Adu (1981) 11-12 S.C. 25 at 38 per Nnamani, J.S.C.

In this respect, an appellate court is only left with a duty to see:

(a) Whether there was evidence to support the findings and/or the decision of the trial court.

(b) Whether the trial court has made a correct assessment of the evidence before it.

(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.

See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742 Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91

All that this means is that an appellate court will not interfere with the findings of a trial court unless it is obvious that that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it.

See Fashanu v. Adekoya (1974) 1 All N.L.R. 35; Woluchem v. S. Gumi (1981) 5 S.C. 319

The main question in this appeal will be to ascertain whether there has been a violation of any of the principles stated above.

The appellants’ counsel has attacked the findings of fact made by the trial Judge. First, it was submitted that the findings made were contrary to the trend of accepted evidence, and secondly that the trial Judge made no findings at all on the principal issue in the case, i.e. the issue as to which party had established title to the land in dispute.

I shall now consider the relevant evidence in the case so as to find out whether there is any substance in the appellants’ complaint.

In their statement of claim, the plaintiffs based their claim to the land on a grant by Balogun Oderinlo. The relevant paragraphs of the pleadings are as follows:-

“6. The land in dispute owned by the plaintiffs is situate at Adenko Compound, Isale Oje, Ibadan and is the area verged green in survey plan No. AD 96/73 drawn by Licensed Surveyor, M.A. Adeoti, Esq., on 23/5/73 and duly countersigned by the Surveyor General on 6/8/73 and is attached to this statement of claim.

During the reign of Bashorun Oluyole, Balogun Oderinlo granted absolutely to Adenko Aje Ojoku a large portion of land at Isale Oje, Ibadan embracing (1) the area verged yellow (2) the area verged blue and (3) the area verged red including the land in dispute verged green in survey plan AD 96/73.
The said Adenko Aje Ojoku, plaintiff’s ancestor, was a warrior under Balogun Oderinlo and lived with Balogun Oderinlo at Mapa, Ibadan till the time he was granted the said parcel of land

at Isale Oje.

The said Adenko Aje Ojoku was also Elegun Sonponna to Balogun Oderinlo and as worshippers of Orisa Shonponna, buried those who died of smallpox and confiscated their properties.
The land given to Adenko by Oderinlo was a portion of a large parcel of land originally settled on by Oderinlo and the land given to Adenko stretches to Ajedi Stream because the bank of the stream was used to bury those who died of smallpox.
Adenko upon taking possession of the land granted by him exercised several and numerous acts of ownership during his lifetime.
Adenko was granted his portion of land including the land in dispute by Balogun Oderinlo long before Delesolu was sent by Oderinlo to go and live at Oje, granting him Delesolu (i) the remaining land (left after the grant to Adenko and used by Oderinlo for farming) and also (2) a house of 70 rooms (which Oderinlo built for the purpose of living in it himself, but was prevented by Bashomn Oluyole from moving into it).
Adenko granted a portion of land given him by Oderinlo to (1) Ojo Ofoke and (2) Pabiekun who were also warriors under Balogun Oderinlo and the said portions are clearly marked out in Survey Plan AD 96/73 verged blue and yellow respectively.
The plaintiffs family have been in undisputed and unchallenged ownership and possession of their land for over one hundred years.
Beginning from our ancestor Adenko, successive heads and members of our family planted and reaped cocoa, palm trees, sugar cane, vegetables and other economic crops on the portion of the land granted Adenko.”

In other parts of the statement of claim, the plaintiffs stated that the defendants owned the land adjacent to theirs and in particular they pleaded that:”

“25. It was Delesolu who granted Bilekanle Ayondioro, the ancestor of the defendants, out of the land granted him by Balogun Oderinlo, the portion of land forming boundary with the land granted to Adenko and shown in the Survey plan as Ayondioro family land.

Delesolu also granted out of the land granted him by Balogun Oderinlo portion of the land to Akingbeju family forming boundary with the land granted to Adenko.
About July 1972, the defendant trespassed into the land in dispute and started to uproot stone foundation of a building being put up by Raji and his brothers to whom our family had given permission to build the house on our family land.
We warned them to stop forthwith their trespass but as they continued to commit trespass on more and more of our family land we sued them to court in CV/97/72 at the Ibadan City Grade A No.1 Customary Court, Mapo Ibadan for declaration of title, damages for trespass and injunction.
In the said Suit CV/97/72 the plaintiffs and witnesses gave evidence and in particular the present head Balogun Oderinlo gave evidence for the plaintiff confirming the grant to Adenko our ancestor of the said parcel of land including the land in dispute before the grant by Balogun Oderinlo of the remaining land and house at Oje to Delesolu.
The defendant called two witness including a member of Delesolu family who admitted Balogun Oderinlo as the radical owner and root of title to the land in dispute.”

In their statement of defence, the defendants denied all these averments and put the plaintiffs to the strict proof of them. In particular, they denied that Balogun Oderinlo was the original owner of the land in dispute, and averred that:

“4. The defendants aver in respect of paragraph 6 of the statement of claim that the land in dispute is situate at Ayondioro’s Compound Isale-Oje, Ibadan.

The defendants aver that the land in dispute forms part of the land granted by DELESOLU to BILEKANLE the ancestor of the defendants.
The area of land granted to the defendants’ ancestor stretches from the Alafara-Oje Road, to the Ajedi Stream.
The defendants deny paragraph 7 of the Statements of Claim and aver that the plaintiff is a member of Ojo-Ofoke Family and that one Akingbeju brought Ofoke (his stranger) to BILEKANLE to ask for land to build living House on.
The equivalent of 4 plots were granted to the said Ofoke for the purpose of building a House.
OFOKE later brought Adenko the ancestor of the plaintiffs to Bilekanle also to ask for a small portion of land to build a House on and was granted an area not more than 100′ by 100′.
The plaintiffs’ family has since begun to enlarge on their holding without the consent of their grantors the defendants.
Adenko had only 2 plots of land about ‘100 by 100′ within Ofoke Compound and it was only over this portion that he was allowed to exercise a right of ownership, while the defendants have always exercised exclusive right of the ownership over the land in dispute.
Ofoke is the head of the plaintiffs family Adenko being his junior brother.
In 1961when the plaintiffs family attempted to extend their holding by trespassing onto the land in dispute the defendants’ family instituted action in Suit No. 3/61 at the Ibadan, No.3 Grade ‘B’ Customary Court against KOFOWOROLA AMOLE, head of the Ofoke (plaintiffs) family.
BILEKANLE was the original grantee of Delesolu and the 1st HEAD of the Ayondioro family.
Although the defendants family compound was originally called Belekanle’s compound, it became known as Ayondioro’s compounds as a result of the popularity in Ibadan at the time, Ayondioro (Alias Elegen Sango) an ancestor of the defendants.”

In regard to the suit pleaded in paragraph 28 of the Statement of Claim, the defendants’ reaction was that:

“29. Following the judgment of the Supreme Court which gave ownership of the land in dispute to the defendant and in the exercise of their legal rights over the land in dispute, the defendants sold a number of plots including the foundations of Muritala Akangbe (son of Ojo-foke) to divers persons without any interference from anyone.

The defendants did not trespass but were exercising their legitimate right over the land in dispute when the suit No. CV/97/72 was instituted.
The defendants shall rely at the trial of this case on all documents relating to the earlier cases over the land in dispute.”

It will be seen that at the close of the pleadings, the main issues which the trial court had to decide were:

Who was the radical owner of the disputed land, – was it Balogun Oderinlo as alleged by the plaintiffs or Delesolu as pleaded by the defendant

To whom was the land in dispute granted and by whom Is it true that the Supreme Court had declared the defendants to be the owners of the land in dispute – The answer to this last question is that no such judgment was produced or tendered before the trial court.

In regard to the 1st and 2nd issues, the plaintiffs gave evidence of their root of title through the 5th and 6th P.W.s The 5th witness Busari Oderinlo, was a descendant of Balogun Oderinlo, and he testified as follows:

“I know the land in dispute. The land belongs to Adenko Aje Ojoku Family. Oderinlo granted Adenko the land in dispute during the time of Oba Oluyole, Bashorun of Ibadan. The boundaries of the land granted by Oderinlo was………………..

When he was cross-examined, he said:

“The piece of land which Oderinlo gave to Adenko is fairly large.

The length or breadth of the land is not up to a mile.”

In his own evidence, the 6th witness, Salami Oderinla, who was said to be the Mogaji of Oderinlo family stated as follows:

“I know the land in dispute. The land belongs to Adenko who was granted the land by Oderinlo my great grand father. Oluyole was the Bashorun of Ibadan when Oderinlo granted the land to Adenko. The boundary men of Adenko were Ayondioro, Tafa Alakia………….

Oderinlo was a soldier………….

Delesolu was a soldier in the army of Oderinlo when there was a quarrel between Oluyole and Oderinlo, Oderinlo built a seventy room house at Oje … He (Oderinlo) therefore sent Delesolu to go and live in the house……..Oderinlo had earlier granted all the land near the seventy room house to Delesolu in addition; this was how Delesolu could grant lands to Ayondioro and Gbeju.”

When cross-examined he denied that he had said in an earlier suit CV/97/72, before the Grade ‘A’ Customary Court, Ibadan – see page 4 of Exhibit ‘B’ in these proceedings – that the land which Oderinlo gave to Delesolu extended from Oje to Alafara Stream, or that it was Delesolu who granted the land in dispute to the plaintiffs. In addition to this, the 3rd and 4th P.Ws also gave evidence confirming the grant to Adenko by Oderinlo.

In proof of their own root of title, the defence called two witnesses. The 1st D.W. was in fact the second defendant, Tijani Akangbe, in the case. This is what he said:

“I know the land in dispute. The land in dispute belongs to Bilekanle, Ayondioro family…..The defendants’ ancestor Bilekanle Ayondioro was granted the land in dispute originally by one Delesolu. The original land granted by Delesolu to Ayondioro by Alafara Oje Street would be about 1 1/2 to 2 kilometres long.”

Under cross-examination, the witness said:

“I know the history of the land in dispute. Oderinlo granted land including the land in dispute to Delesolu originally. The boundaries of the original grant by Oderinlo to Delesolu are….

Bilekanle did not grant land to Adenko or to Pabiekun but to Ojofoke.”

(Italics mine)

The witness was not re-examined on the above evidence.

The Defence however called a member of the Delesolu Family to testify. He was the 2nd D.W. and he stated as follows:

“I do not know the plaintiffs. I know the land in dispute. The land in dispute is situate between Alafara and Oje in Oje area. The land in dispute was granted by Delesolu to Ayondioro Family. I know the boundaries of the land in dispute.”

Later on, in his evidence in chief, he stated:

“Balogun Oderinlo granted the whole area originally to Delesolu. He also gave his first daughter to Delesolu as wife.”

When the plaintiffs’ Counsel cross-examined the witness, he said:

“Delesolu granted land to Ayondioro. My father told me this history. My father Mustafa Ajadi, is now dead. My father told me that all the parcels of land within the land in dispute were granted to Ayondioro. The land in dispute was not granted to Ogunwale. It was not granted to Bilekanle.” (Italics mine)

At the close of evidence, both parties addressed the court and in the considered judgment which was later handed down, the trial Judge carried out an assessment of the evidence of the witnesses for both parties.

In his view, the 4th P.W. did not appear to know the land in dispute and the 5th P.W. did not impress him as a witness of truth because his evidence contradicted that of the 3rd P.W. The learned Judge also held that the evidence of the 6th P.W. contradicted that of the 5th witness in regard to the extent of the land granted to the defendants by Delesolu.

In regard to the case for the Defence, the learned Judge reviewed the testimony of the 1st D.W., and held that:

“the evidence of this witness is not helpful as to the traditional history of his family land.”

When he came to assess the evidence of 2nd D.W., who had claimed to be a descendant of Delesolu, the Judge held that his evidence contradicted that of the 1st D.W. and was also in conflict with the Statement of Defence. He then concluded the evaluation of the evidence of these two witnesses as follows:-

“In view of what I have said in respect of the evidence of the 1st and 2nd defendants’ witnesses, it cannot be said that there was satisfactory evidence from the defendants as to their traditional title.”

On the totality of the evidence, the learned Judge made the following findings:

“In this case there is no doubt that there is conflicting traditional evidence as both the 3rd plaintiffs’ witness and the 1st defendants’ witness trace their radical title to Balogun Oderinlo and to Delesolu respectively. Delesolu was said to have been granted his land (from which he later carved out to others respectively) by the same Balogun Oderinlo. I believe the 3rd plaintiffs’ and 1st defendants’ witnesses that the respective families they belong to have family lands near the land in dispute. I find as a fact and I am satisfied that both parties have semblances of titles to lands in the area of the said lands in dispute, but there cannot be judgment for the plaintiffs as they have not adduced convincing evidence of ownership to the whole area of the land in dispute to the exclusion of others as in view of the evidence of the defendants’ grantees of parcels of land within the land in dispute.

Furthermore on the evidence before me there is no certainty as to the extent of the land in dispute in view of the conflicting evidence adduced for the plaintiffs in this case. There is no doubt in the circumstance that there is a semblance of grant to either party but both the competing traditional evidence and recent facts do not satisfy me that the plaintiffs have exclusive use of the land in dispute. The plaintiffs’ claim before me for declaration of title in this case has to be dismissed: See Ekpo v. Ita ante.”

I pause here for a moment to say that those findings do not accord with the evidence given in the case. In my view, the learned Judge has failed to make any finding on the principal issue in the case. That issue, as stated on the pleadings, was whose traditional history of the land in dispute is more probable.

In the statement of claim, the plaintiffs pleaded that they got a grant of the land in dispute from Balogun Oderinlo and called the present Head of Oderinlo to confirm the grant. The defendants on the other hand, averred that they derived title to the land from one Delesolu, but gave evidence which traced their title back to Balogun Oderinlo. In those circumstances, the Judge ought to have stated whose evidence he preferred. In regard to the defendants’ story of the grant, I bear in mind that although evidence was given tracing their grant to Oderinlo contrary to the pleadings, no attempt was made by the defendants to amend their pleading so that it might fall in line with the evidence given.

This is very significant because, the evidence of grant given by the defendant confirmed paragraphs 12 and 25 of the statement of claim, that it was Balogun Oderinlo who granted a portion of land (adjacent to the plaintiffs’ land) to Delesolu who in turn granted part of that land to Bilekanle, the defendants’ ancestors. The defendants denied these two paragraphs in paragraph 2 of their statement of defence, but still went on to give evidence which confirmed the plaintiffs’ version of the grant.

It is settled law that in civil cases issues are settled on the pleadings – see Idahosa v. Oronsaye (1959) 4 F.S.C. 166; [1959] SCNLR 409 and the court should not allow evidence to be given in respect of facts not pleaded. If however such evidence is inadvertently received, it is the duty of the trial Judge to discountenance it because it goes to no issue.

See National Investment Properties Co. Ltd. v. Thompson Organisation (1969) N.M.L.R. 99 at 104. Ferdinand George v. U.S.A. Ltd. (1972) 8-9 S.C. 264 at 275.

In the instant case, the learned trial Judge did not discountenance the inadmissible evidence of the defendant. Rather, he acted upon it and came to the conclusion that it was Balogun Oderinlo who granted land to both parties.

In my view, it would seem that the trial Judge had allowed the defendants to set up a case different from that which they had made out on their pleadings and the authorities are agreed that the defendants could not do this: they are bound by their pleadings. See Aderemi v. Adedire (1966) N.M.L.R. 398.

As stated above, the defendants did not apply to amend their pleadings and in my view, it was wrong of the trial court to have allowed them to take advantage of the evidence that Oderinlo was the radical owner of the land in dispute.

But whether the pleadings were amended or not, it was still the duty of the court to make a positive finding as to which of the two parties, on the evidence, had a better title to the disputed land.

Unfortunately, the learned trial Judge failed to make this important finding, rather he found that “both parties have semblances of titles to lands in the area of the said land in dispute.”

In my view, title to other land in the area of the land in dispute was not a live issue between the parties. This is so because there was evidence for both parties that the land granted to each party included the land in dispute.

Also it was given in evidence that the land granted to the defendants was adjacent to that granted to the plaintiffs. Now this seems to suggest that the disputed land falls somewhere in between the plaintiffs’ land and that of the defendants.

In my view, therefore, the real issue between the parties was whether the land in dispute was part of the land granted to the plaintiffs by Oderinlo, or a portion of that granted to the defendants by Delesolu. That is the crucial issue between the parties, and it was on that issue that the trial Judge was expected to make a finding.

By several decided authorities, it has been held that a trial court has to make a finding on the evidence before it.

See Okumobi v. Ishola (1973) 3 S.C. 43.

Anukanti v. Ekwonyeaso (1978) 1 S.C. 37

Okonofua v. The State (1981) 6-7 S.C.1 per Bello, J.S.C. at p.16.

Mogaji v. Odofin (1978) 4 S.C. 91

It seems to me from all I have said that the learned trial Judge has failed to make a vital decision on the conflicting evidence before him, and to that extent, he has failed to take full advantage of having seen and heard the witnesses. In that event, it would appear that this is one of those infrequent occasions when an appellate court should interfere with the findings of a trial court.

As previously stated, the plaintiffs were dissatisfied with that judgment and appealed to the lower court. In that court, two principal issues were canvassed.

First, that the plaintiffs had proved their title to the land in dispute, and it was therefore wrong for the trial court to have dismissed their claims.

Secondly, it was urged on the lower court that the trial court misdirected itself in holding that the identity of the land in dispute was uncertain.

In regard to the first point, the lower court, after reviewing the submissions of both counsel, came to the conclusion that the plaintiffs’ claims were rightly dismissed. Onu, J.C.A., who read the lead judgment (Omololu Thomas and Sulu Gambari, D.C.A., concurring) held as follows:

“The complaint therefore is that having accepted the traditional evidence of the appellants as to the radical ownership of the land in dispute and the grant from the said Balogun Oderinlo to the appellants’ ancestor, the learned trial Judge refused to enter judgment for the appellants for failure to adduce convincing evidence of exclusive ownership. He cited in support of this contention the cases of Mumuni Abdulai v. Ramotu Manue 10 W.A.C.A. 172 and R.M. Alade v. Lawrence Awo (1975) 4 S.C. 215 at 225-6.

It was finally submitted that since the appellants traced their root of title to Balogun Oderinlo but the respondents did the same but failed to prove any root of title in Delesolu, then the appellants have succeeded in proving that they have the better title and the legal right to possession of the land in dispute.

The learned counsel for respondents’ short answer to the above argument was that the appellants, having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership. He also cited in support of this contention the same case of Abdulai v. Manue (supra) at p.174.

“I agree with learned counsel for respondents that the respondents joined issue with the appellants on the question of possession vide evidence of 1st D.W. and D.W.3. The appellants’ case was properly dismissed for failure by them to adduce convincing evidence of exclusive possession of the land in dispute by them. The trial court’s decision, in my view, is unimpeachable. This ground of appeal fails.”

and in the concluding paragraph of his judgment, the learned Justice held:

“I agree with the respondents that as the appellants failed to satisfy the court by their evidence in proving their case; they cannot rely on the weakness of the respondents’ case. See Kodilinye v. Odu 2 W.A.C.A. 337 at 338.

I also agree with the learned trial Judge that as there was none to choose between the appellants’ as well as the respondents’ case, he rightly dismissed it. In the result, this appeal fails and is accordingly dismissed.”

Before us, it was submitted- that the lower court had “completely misunderstood” the arguments tendered before it.

It seems to me that one basic fact that must be accepted is that both parties claimed title to the land by grant and, the only issue before the trial court was to decide who of the two parties had proved his title. It is now settled law that a party may prove title to a piece of land in any of the following five ways:

(a) By traditional evidence.

(b) By documents of title

(c) By various acts of ownership, numerous and positive; and extending over a length of time as to warrant the inference of ownership.

(d) By acts of long enjoyment and possession of the land.

(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would, in addition be the owner of the disputed land.

See Idundun v. Okumagba (1976) 9-10 S.C. 227

Okafor v. Idigo (1984) 1 S.C.N.L.R. 481.

It has also been held that when a party relies on a grant and proves that grant by traditional evidence, he need not go further and prove possession or acts of ownership or any of the other four ways stated above.

See M. Abdulai v. R. Manue 10 W.A.C.A. 72

Karimu v. Fajube (1968) N.M.L.R. 151.

In the case of F. M. Alade v. Lawrence Awo (1975) 4 S.C. 215 at page 225 this court held:

“In other words, Webber, J., quite rightly thought, and we agree with him, that, where the other evidence of title i.e. tradition is inconclusive or entirely lacking if we may say so, then, and it is only then, that the onus of proving the facts constituting acts of ownership is thrown upon the plaintiff. That being the case, we think that the correct view of the law is that the plaintiff in a claim for declaration of title could succeed solely on the basis of traditional evidence. Moreover it seems to us that the rule in Ita’s case does not apply where the plaintiff relies upon and proves title by grant.”

That pronouncement represents the state of the law and it seems to me that if the trial Judge had applied the principles stated therein to the facts of this case, he would have made a definite finding on the issue of traditional history.

I am satisfied that a consideration of the issues of possession does not arise until the question of traditional history has been determined. The trial court failed to settle this vital issue and I am of the view that the lower court misdirected itself in confirming the errors of the trial court.

At this stage, it is, necessary to say a few words about the identity of the land in dispute. In his judgment, the trial Judge held that the identity of the land was uncertain only because there was conflicting evidence about the structures on the land. According to the learned Judge, 3 P. W. said there were four houses on the land whilst 4 P.W. said there were eleven houses.

The learned Judge also observed that although 4 P.W. said that there was no road by the land in dispute, the Plan of the land in dispute, Exhibit ‘A’, shows an access road to the land. For those reasons, the Judge concluded:

“On the evidence before me there is no certainty as to the extent of the land in dispute in view of the conflicting evidence adduced for the plaintiffs in this case.”

In his consideration of this point, Onu, J.C.A., seemed to me to have adopted a correct approach to the issue when he held:

“where contradictions only manifest themselves as to the clarity of structures and locations on the land and not as to the precise boundaries, identity and certainty of it, it would be erroneous to hold strictly that the boundaries are not well defined Chief O. Are v. Chief A. Obaloro (1968) N.M.L.R. 238 at 239…….Exhibit ‘A’ clearly depicts an “access” not a “motor road”, and so the contention that there is no motor road on Exhibit ‘A’ is at best a non-issue.

Further on in the judgment, the learned Justice said:

“In the appeal herein, Exhibit A, while not held to be inaccurate does correctly give the boundaries, the identity and extent of the whole land granted to the appellants’ ancestor by Balogun Oderinlo…………

Moreover, the evidence of 3rd and 4th appellants witnesses (I shall come to this shortly), irreconcilable though it is with Exhibit ‘A’, does not, in my view, derogate from or affect the identity, extent and boundaries of the land in dispute….It was therefore wrong of the trial court to have held otherwise.”

At the concluding portion of the judgment, when the learned Justice came to consider the issue of whether or not the plaintiffs were in possession of the disputed land, he observed that the trial Judge had found as a fact that there was “no satisfactory evidence that the appellants were in exclusive possession of any certain area of land within the land in dispute”, and that both parties have “semblance of title” to land in the area of the land in dispute. Onu, J.C.A., held that those findings of fact could not be lightly disturbed; he then went on to say that:

“….while Exhibit ‘A’ was accurately drawn, the variance between the evidence proferred by the appellants and their witnesses and the plan destroys the value of the plan and leaves uncertain the area of land in respect of which the claim was made. See Akubueze v. Nwakuche (1959) 4 F.S.C. 262; [1959] SCNLR 616, Alade v. Dina supra. This was the penultimate conclusion of the trial court agree. See Frempong II v. Brempong II 14 W.A.C.A. 13 at 14.”

With great respect, I find it difficult to follow the reasoning of the learned Justice, especially after he had earlier held that no matter how irreconcilable the evidence of the plaintiffs’ witnesses might be, it would “not derogate from or affect the identity, extent and boundaries of the land in dispute.” I think it should be clearly understood that the identity of a piece of land is one thing, whilst the structures on the land are a totally different matter. A plaintiff may give unsatisfactory evidence about the structures on his land or about the acts of ownership performed on the land. But such evidence need not necessarily affect the physical identity of the land especially where, as in the instant case, a survey plan was admitted in evidence (without objection) and the land in dispute was clearly demarcated. Apart from this, it seems to me that the disputed land was known to both parties. Witnesses for the parties gave evidence about the number of houses on the land, – some said there were four, whilst others said there were eleven. Even if the trial Judge rejects the evidence of any of these witnesses on this point, this, in my view, would not affect the identity of the disputed land which had been clearly demarcated on a Survey Plan Exhibit ‘A’ and which was tendered by a Licenced Surveyor.

I think the lower court got into this mix-up only because it felt that the plaintiff, in addition to proving title by traditional evidence, should also prove exclusive possession and acts of ownership. I have already stated that the Law does not impose that additional burden on a party. In the instant case, although evidence of traditional history relating to the land in dispute was tendered before the trial court, that court has failed to make a finding on that issue. To this extent, there seems to be a lacuna in the judgment of the trial court, and the lower court was in error to have confirmed such an unsatisfactory judgment.

I have therefore come to the conclusion that both judgments should be set aside and I do so order.

I have given anxious consideration to the consequential orders that should be made on this appeal. In their Notice of Appeal, the appellants have asked this court to:

(a) Set aside the judgment and orders of the High Court and of the Court of Appeal.

(b) Allow the appellants’ claims for declaration of title to a statutory right of occupancy.

(d) Grant an injunction against the respondents, their servants and agents.

(e) Grant any other general reliefs as this court may deem fit.

In other parts of this judgment, I have pointed out that the trial court had failed to make a finding on the vital issue in the case. The duty to do so is the function of the trial court who saw and heard the witnesses and observed their demeanor. By failing to carry out his primary duty, the trial Judge has created a Lacuna in his judgment, and in my view, such lapse can only be put right by a trial court.

In the case of Solomon v. Mogaji (1982) 11 S.C.1 at 24, this court, per A Bello, J.S.C. (as he then was) held that when no finding of fact is made on conflicting evidence adduced by both parties on an issue, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order. See also Mogaji v. Odofin. 4 S.C. 91.

After a most anxious consideration of the facts in this case, I am of the view that the interests of justice dictate that there should be a retrial of the case and I so order. I am not unmindful of the fact that the suit has been in court for a fairly long time, and in this respect, I hope that the Honourable Chief Judge of Oyo State, would give necessary directives that the case be given accelerated hearing.

In the final result, this appeal succeeds and it is allowed. It is ordered.

That the judgment of the Ibadan High Court dismissing the plaintiffs’ claims together with the judgment of the Court of Appeal confirming the dismissal, shall both be set aside.
That this case shall be sent back to the High Court, Ibadan for rehearing; such re-trial shall be before another Judge.
That the re-hearing shall be given accelerated attention. The plaintiffs are entitled to costs which are fixed at N300.00 in the lower court, and N500.00 in this court. The costs in the High Court shall abide the re-hearing.

The plaintiffs’ claims in the High Court of Oyo State, holden at Ibadan were for:

N250.00 being general damages for trespass committed by the defendants, their servants or/and agents on the said land on or about July, 1972.
Injunction to restrain the defendants, their servant or/and agents from entering or committing further trespass on the said land.”

“they have not adduced convincing evidence of ownership to the whole area of land in dispute to the exclusion of others…….”

The trial Judge also held that the plaintiffs had failed to prove the identity of the land in dispute with certainty.

The plaintiffs were dissatisfied with that judgment and appealed to the Court of Appeal, Ibadan.

That court, after hearing arguments dismissed the appeal and affirmed the judgment of the trial court. This is a further appeal against the decision of the lower court.

Particulars of Error:

down in the case of Veronica Graham & Ors. v. Lawrence Esumai & Ors. (1984) 11 S.C. 123.

The said learned Justices of Appeal erred in law when, without or any due consideration, they upheld the learned trial Judge’s dismissal of the Plaintiffs’ claims after the learned trial Judge had found, as admitted by the Defendants’ witnesses that the original owner of the land in dispute was Balogun Oderinlo from whom they, the Appellants, claimed to have derived their title to the land as opposed to Delesolu from whom the Respondents claimed to have derived their own title.

Particulars of Error:

(a) The learned Justices of Appeal merely recited the arguments of the Appellants at Pages 146 to 148 of the Record and summarily dismissed them without due consideration.

The learned Justices of Appeal erred in law in holding at Page 148 line 30 to 34 of the Record thus:-

“having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership.”

The learned Justices of Appeal erred in law when they held at Page 151 lines 6 to 12 of the Record that the Appellants failed to discharge the onus of proof on them by reference to the case of Kodilinye v. Odu 2 W.A.C.A. 336 when in law the principle enunciated in that case is not of relevance in this case.

Particulars of Error:

At Page 146 line 22 to Page 148 line 28 of the Record, the learned Justice set down the arguments of the Appellants as follows:-

The learned Justices of Appeal erred in dismissing the appeal on the ground that “there was none to choose between the Appellants’ as well as the Respondents’ case” as per Page 151 lines 11 to 12 of the Record, and the learned trial Judge having found that the original settler-owner of the land including the land in dispute was Balogun Oderinlo from whom the Appellants derived their title, there was no room for holding that there was none to choose between the Appellants’ case and the Respondents’ case.”