Ojo Ajao & Ors. V. Opoola Alao & Ors.(1986)

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KARIBI-WHYTE, J.S.C

On the 30th October 1978, Apara J. at the Oyo High Court dismissed the claim of the Plaintiffs against the defendants for (1) Declaration of Title under native law and customs to all that piece or parcel of land situate lying and being at Lejin’s Compound Isale Ladogan, Iseyin.

(2) The sum of N200 (Two hundred naira) being damages for continuing trespass committed by the Defendants on the said land.

(3) Injunction restraining the Defendants, their servants, Agents, and/or anyone claiming through them from committing any further act of trespass on the land.

The case of the Plaintiffs as disclosed in their statement of claim and evidence before the Court was that the land in dispute was granted to their ancestor Lejin, absolutely by the Aseyin. Olugbile of Iseyin on the arrival of Lejin at Iseyin from Oshogbo. Plaintiffs, who are the descendants of Lejin have always occupied this land by living and farming on it.

They granted a portion of this vast land so allocated to them to Olugbemi the ancestor of the Defendants when he arrived Iseyin. It is their case that the land in dispute is not part of the portion of the land their ancestor Lejin granted to Olugbemi the ancestor of the Defendants. Plaintiffs in their statement of claim pleaded and also stated in evidence in court at the trial that unknown to and without the consent or approval of the head of Plaintiffs family a member of the family instituted an action in Suit No. 481/67 against the defendants family in the Iseyin Grade “C” Customary Court in 1967. Judgment was given in favour of the Defendant family. An appeal to the Oyo Grade A Customary

Court in Suit No.15/70 against the judgment was dismissed. The land in dispute is claimed by Plaintiffs to be in Lejin’, compound, Isale Ladogan, Iseyin. According to their case it was Olugbile, the Aseyin of Iseyin at the time who granted all the land in Isale Ladoge to Ladigbolu Aiyelara, the Bale of Ladogan and it was Ladigholu Aiyelara who in compliance with Aseyin Olugbile’s instruction who granted the area occupied by Lejin including the disputed portion to him. They claimed to have exercised acts of ownership by farming on the land. They have been in exclusive possession and have been responsible to the health authorities for the sanitation of the area. They also claim to have their Orishala shrine on the land. They had planted ‘Odan’ and Sekeseke trees on the land in dispute.

The Defendants denied the averments of the Plaintiffs, and went on to state in their statement of defence their root of title. They denied that their ancestor Olugbemi derived his title to the land which he occupied and where the Defendants are from Lejin Plaintiffs ancestor. Their case is that their ancestor Olugbemi had an absolute grant of the land he occupied at Ladogan Quarters including the disputed portion from Aseyin Olugbile, through Bale Jinadu. They claim that the earth drain is their boundary with the Plaintiffs. Defendants claim to have exercised uninterrupted acts of ownership in respect of the land by the erection of dwelling houses, corn mill shops, and granting leases to persons. The Defendants pleaded and relied upon judgments given in their favour in an action between a member of the Plaintiff’s family and the Defendants. The question in dispute in respect of which issue was joined is the ownership of a piece of land verged yellow and marked A & B on plan No.LL 8017 tendered as Exhibit B in the trial. It is fairly clear from the pleadings and evidence in support that both parties trace their root of title to the Aseyin of Iseyin, Oba Olugbile. Whereas Plaintiffs claim that it was Bale Aiyelara who gave the land including the portion in dispute and that it was they who granted the land occupied by Defendants minus the portion in dispute. Defendants claim to have derived their title from a grant from Oba Olugbile, the Aseyin of Iseyin through Bale Jinadu who was the Bale Ladogan at the time. The grant included the portion in dispute. It is obvious from the case of the parties that they both claim to have derived title from the same root. The burden is clearly on the Plaintiffs who claim that Defendants derived their title from them to establish that fact.

Plaintiffs admitted in their statement of claim and in evidence before the trial Judge that judgment was given against a member of their family in an action claiming a declaration of title in respect of the portion in dispute. The contention was that the action was without the consent and authority of the head of the Plaintiffs family. Counsel for the Plaintiff tendered the judgments both in the Court of first instance and on appeal and contended that the judgments were void and could not sustain the plea of res judicata.

After a careful consideration and evaluation of the evidence before him, the learned trial Judge dismissed the claim of the Plaintiff/Appellants. The grounds upon which the trial Judge relied for dismissing Plaintiffs/Appellant’s claim seems to me not only that they failed to establish their claim on the traditional evidence adduced on their behalf, but also that the defence of res judicata relied upon by defendants was valid. On the-traditional evidence adduced the learned Judge said, “The defendants are saying that they own the areas verged yellow in Exhihit Band Fasasi Aremu has testified that this is so. Again, the defendants are saying that the earth drainage immediately above the area verged yellow and marked A in Exhibit 8 is their boundary with the plaintiffs and Fasasi Aremu has testified that this is so. It is my view that the defendants can rely on the evidence of Fasasi Aremu to support their own case in this respect.” The trial Judge also considered the effect of Exhibits “A” & “C”, judgments in earlier proceedings between members of the families of the parties in this case and tendered in evidence by Counsel for Plaintiffs/Appellants and the submission that the judgments being void do not operate as estoppel per rem judicata, and said, “In any case, my view is that since the proceedings in exhibit A were not before me on appeal, Mr. Alawode could not attack their validity. A Counsel cannot address the Court on the validity or otherwise of a judgment which has been tendered in Court merely as an exhibit when no appeal has been lodged against that judgment. This was the decision in Abegunde v. Lanlokun (1958) W.N.L.R.69.”

The learned trial Judge thus rejected the submission of Counsel for the Plaintiff/Appellant and held that the judgments operated as estoppel per rem judicata, with respecl to the portion of the land in dispute. He held that since the family of the Plaintiff in Suit No. 481167 and 15170 which is the same family in this case, knew of the litigation in court and declined to show any interest, as was held in Onisango v. Akinkunmi & 5 Ors. (1955156) WRNLR.39, they were bound by the result of the proceedings. He therefore concluded as follows:

“Having considered the pleadings, the Law as applicable in this case, and the totality of the evidence before me, I believe that the areas verged yellow and marked A and B in Exhibit B belong to the Defendants. The claims of the plaintiffs therefore fail and are hereby dismissed.”

Plaintiffs/Appellants appealed to the Court of Appeal. Counsel filed ten grounds of appeal alleging errors of fact, mixed law and fact and law. The grounds of appeal 1, 2, 6, 7 and 10 challenged the findings of fact made by the learned trial Judge and contended that there was no basis for a finding for the Defendant/Respondent. The Court of Appeal after a careful consideration agreed with the findings of fact of the learned trial Judge.

The Court held and I entirely agree that the learned trial Judge did not merely make a finding on the credibility of Fasasi Aremu, but also found that plaintiffs/appellants had not made out a case upon which their action ought to succeed. The gravamen of grounds 2, 6, 10 of the grounds of appeal argued before the Court of Appeal was that the Respondents have failed to prove what they pleaded in their statement of defence and accordingly were not entitled to judgment.