Ogundairo Vs Okanlawon (1963)

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TAYLOR JSC

The plaintiffs in the Court below were representatives of Awaiye Village, and the defendants of Ijako-Orile Village. The claim was for a declaration of title to Awaiye farmland and an injunction to restrain the defendants, their servants and agents from further trespass to the land in dispute. The plaintiffs’ case on the pleadings was that their ancestor Badejoko was the first settler on the land in dispute and that the defendants are the owners of the land on the Western side of the Iniya stream referred to as Ijiako-Orile farmland. The Iniya stream, the plaintiffs say, is their natural boundary with the defendants. The defendants, on the other hand, plead as follows in paragraph 1 of their Statement of Defence: “The defendants deny paragraph 1 of the Statement of Claim and aver that the plaintiffs are customary tenants to the defendants in respect of the area of land in dispute and had hitherto paid rent `Ishakole’ to the defendants for a very long time past.”

They go on to aver in paragraph 4 of the Statement of Defence that: ¬

”While admitting paragraph 5 of the Statement of Claim the defendants aver that Badejoko attorned tenant to Orebiyi Ogunro father of the first defendant.”

Paragraph 5 of the Statement of Claim which is admitted reads thus: ”Badejoko was an Egba and a great Hunter and was the 1st settler on the Awaiye farmland over a century ago.” The defendants, in addition to the above, also rely on the defence of res judicata as per the following decisions:- (a) The decision in 1952 of the General Purposes Committee of the Egbado-Ketu Native Authority (exhibit D. 2 of these proceedings); and (b) Suit No. 30/52 (exhibit D. 1 in these proceedings). The learned trial Judge held as follows on the question of res judicata: ”The defendants have sought to rely on the arbitration award and the judgment of the Egbado Ketu Grade A Court as being evidence in their favour on the issue raised in the case, alternatively to them creating an estoppel as to them. In my judgment those decisions are only evidence of two acts of ownership by the defendants, namely two successful assertions of claim by them in respect of part of the land in dispute:” The learned trial Judge held that the claims in these two decisions related to part of the land in dispute, but that the actual area or areas dealt with lacked certainty. In both of the decisions, the present appellants, the Ijako-Orile people, were the successful parties. It is this part of the judgment of the trial Judge that Chief Moore, Counsel for the appellants, has sought to assail. The only grounds argued by him were the additional grounds filed with leave of the Court. His arguments on these grounds may be put in this way…… (1) That the area of land dealt with in the two decisions above referred to in fact covered the whole area of land now in dispute, and therefore the trial Judge erred in rejecting the plea of res judicata. (2) That even if the areas the subject matter of the two decisions do not cover the whole area in dispute in this appeal, yet so long as they cover some undefined portion of the land in dispute, a declaration of title should have been refused the plaintiffs.

On the first point, Chief Moore argued that the real dispute between the parties in exhibits DI and D2 was as to whether the present respondents were owners in their own right of the land in dispute or whether they were tenants of the present appellants.

We were referred to the following passage in the Judgment in exhibit D. 1 which reads thus, inter alia:

“Judgment entered for plaintiff (Ijako-Orile) i.e. the plaintiffs are the rightful owners of this land, but the defendants’ father and defendants themselves they have been on this land for a considerable length of years and they could not possibly be ejected from the land “

and also to the decision in exhibit D2 which reads thus inter alia:

“The land under dispute is belonging to Ijako-Orile people whom you should regard as your landlords. You Ijako-Orile people should not drive them away from your land unless they do otherwise unpleasant to you.”

There can be no doubt about the interpretation to be put on these two decisions which is that the owners of the land in dispute therein, which land the trial Judge has found to be contained within that now in dispute, are the present appellants. It is true that the exact area in dispute in those exhibits D1 and D2 is not stated with any definiteness, but the effect of the judgment now on appeal is to grant to the present respondents a declaration of title to an area which includes portions over which the appellants have successfully asserted their ownership. The appellants are further restrained from going on any portion of the land aforesaid.

The arguments adduced by learned Counsel for the respondents have not been of much assistance on this point, for the line taken by him was that the area in dispute in exhibits Dl and D2 was an area referred to as Temu farmland which he contended was not the same as Awaiye farmland. This, as Chief Moore pointed out is fallacious, for 3rd witness for the plaintiffs, the respondents on appeal, stated that: “The land in dispute is also known as Temu Area.” Learned Counsel for the respondents then urged that the area in dispute in exhibits Dl and D2 was uncertain; it could not form the basis for the defence of res judicata; that therefore the trial Judge was right in making the declaration sought in view of the fact that he accepted the version of the Awaiye people. This argument falls short of the point at issue on this appeal, and which has already been stated earlier in this judgment.

It has been said that the making of a declaratory order is within the discretion of the trial Judge and this discretion should not be too readily exercised. In a claim for declaration of title to land if the defendant is able to adduce evidence, oral or documentary, which has the effect of discrediting the plaintiff’s evidence, such a declaration should be refused. In this case on appeal, exhibits Dl and D2 and their effect as stated by the trial Judge discredit the plaintiffs’ evidence as to absolute ownership of the whole area in dispute. In our view the order should have been one of dismissal of both the claims for title and injunction for the reasons already stated.

The appeal must succeed and the judgment of the Court below is set aside and in its place we substitute an order of dismissal with costs assessed at 100 guineas in the Court below and in this Court at 41 guineas in favour of the appellants.

Other Citations: (1963) LCN/1031(SC)