Rabiatu Latunwoun Adelowo & Ors v. Akanke Akingbala & Anor (1974)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C.
This action was instituted in the Ake Grade ‘A’ Customary Court, Abeokuta, by the present appellants as plaintiffs against the respondents who were the defendants to that action. In that court the plaintiffs’ writ was endorsed as follows:
‘The plaintiffs’ claim from the defendants jointly and severally is for:
(i) 200pounds damages for trespass committed by defendants their servants and/or agents by entering, erecting undesirable building on the plaintiffs’ land situate lying and being at family square (Itanla) Omosaju’s compound called Itanla Totoro Owu, Abeokuta sometime in 1967.
(ii) Injunction restraining the defendants their servants and/or agents from further entry into the said land situate, lying and being at family square (Itanla) Omosaju’s compound Totoro, Owu, Abeokuta.”
The parties gave evidence before the learned President of the Court, the plaintiffs contending that the land in question was first settled upon by their ancestor, one Adegafe, who was followed by Akinola whose child was Adelowo, the father of the first plaintiff. The plaintiffs also gave it in evidence as part of their case that both Akinola and Adegafe were born by the same father called Akinosho who had hailed from Orile-Owu. It is also part of the plaintiffs’ case that the defendants are descendants of one Olusun or Olusunmade, a native cloth-weaver from Ibadan, who had been invited by Akinola to live with him in Akinola’s family compound at Owu. Furthermore, it was part of the plaintiffs’ case that Akinosho was an Oba of Owu, that he built an Esu shine (devil’s shrine) which he worshipped in front of his house which was generally known as Ita-Nla (a large square) and that his compound was generally known as Mosaju’s compound (or Omosaju’s compound).
The defendants on the other hand claimed by their evidence that the land in dispute was originally owned by one Ademolu the paternal great-grandfather of the second defendant, Alhaji Abdullahi Olosunmade, and that it was this great-grandfather of the defendant that had invited Akinola to the area of the land in dispute and settled him at the back of his compound, in virtue of which Akinola became generally known as Baba Ehinkule (the old man living at the backyard).
The learned customary court President who heard both parties, considered the evidence of both sides extensively and concluded that he was convinced that the “plaintiffs’ family have a better title to the land”. He rejected the evidence given on behalf of the defendants to the effect that it was the ancestor of the defendants who had invited Akinola, plaintiffs’ ancestor, to the land, as well as the story that Akinola was ever known as Baba Ehinkule at any time.He found as a fact that it was Akinola who owned the land and had built his house thereon facing the Ita-Nla (or large frontage or square) and that in addition to his building Akinola had erected stables at the back thereof for his horse or horses whereby he was known as Baba Eleshin (or the old man who has horses). He thereafter gave judgment for the plaintiffs against the defendants for 50 (or N100.00) general damages and an injunction.
The defendants appealed to the High Court, Abeokuta, against this judgment and their appeal was dismissed. They thereafter appealed to the Western State Court of Appeal which allowed their appeal, set aside the judgment of both the Customary Court and the High Court and dismissed the plaintiffs’ case.
Although a number of grounds of appeal were filed and argued before the Western State Court of Appeal, that court decided the appeal on only one of those grounds of appeal and stated clearly that “for this reason alone, this appeal must succeed and it will no longer be necessary to deal with grounds 5 and 8 which deal with proof of title”. The plaintiffs have appealed to this Court of Appeal but there has been no cross-appeal by the defendants against the failure or refusal of that court to consider their other grounds of appeal.
We stated that the Western State Court of Appeal decided the case against the plaintiffs on only one ground of appeal. In the course of the hearing before the Customary Courts, the first plaintiff, an octogenarian, testified for the plaintiffs and was indeed in the witness box for a number of days. After completing her evidence-in-chief, she was cross-examined by learned counsel for the defendants. Further hearing was adjourned on the following day.
During her further cross-examination on the following day, she was recorded as having answered a question thus:
“Ademolu was not a child of Akinosho and I don’t know Adesusi.”
Later, and in the course of what was apparently a long cross-examination, she was recorded as having stated in answer to another question:
“Olosunmade was never Ademolu’s child. I cannot say whether Olusun is related to Akinola or not.”
Later still, and in the course of the same cross-examination, she was recorded as having said:
“It is true to say that Ademolu and Adesusi, the children of Akinosho, first settled on the land in dispute.”
When the defendants appealed to the High Court, they filed original grounds of appeal, and when the appeal was about to be heard, the defendants filed additional grounds of appeal. This situation was clearly depicted in the course of the judgment of the learned judge on appeal who stated in the course of his judgment:
“Learned counsel for the appellants, Chief Toye Coker, filed 4 grounds of appeal on the 20th day of March, 1970, i.e. two days after the judgment was given on the 18th March, 1970. He was later permitted to file and argue 12 additional grounds of appeal.
The original grounds and additional grounds are reproduced hereunder:
ORIGINAL GROUNDS
XXX XXX
Additional Grounds of Appeal
XXX XXX
- The learned trial President did not give sufficient or any consideration to the case of the defendants thereby coming to a wrong conclusion on the facts and the law
(a) the plaintiff stated that Ademolu and Adesusi first settled on the land in dispute.
XXX XXX
At the hearing, learned counsel for the appellants said he could no longer rely on grounds 5 and 6 of the additional grounds. The pattern of argument followed the couching of the grounds of appeal.”
It is obvious that the point being made there was that the first plaintiff having admitted in the course of her evidence that it is true to say that Ademolu and Adesusi, the children of Akinosho, first settled on the land in dispute, could not be entitled to a declaration that her ancestors first settled on the land, since Ademolu and Adesusi were on the case and evidence of the defendants their own ancestors. The learned trial judge on appeal fully considered this point and in dismissing it stated as follows:
“Ground II(a) referred to the answer of the 1st respondent under cross-examination that:
‘Ademolu and Adesusi first settled on the land’ .
This is an obvious contradiction in the case for the plaintiffs, but the learned President found as follows:
‘I find in fact that plaintiffs’ family are owners in possession of the area in dispute and trespass has been committed by the defendants on the land in dispute’ .
“It is my view that there is ample evidence on record to justify such a finding. I may point out that in a long drawn out action in which the evidence is largely traditional, contradictions of this type are inevitable. An 80-year old woman standing the strain of cross-examination might suffer loss of equilibrium and give answers which might tend for example in this case, to establish that Ademolu and Adesusi settled on the portions of the land covered by the plan Exhibit’ A;, owing either to defective interpretation or other wise…….. Now the land in dispute is the portion edged yellow. The open space unoccupied since the childhood day of 1st respondent who is 80 years old; if Ademolu and Adesusi settled on this area they must have occupied it, which is contrary to the evidence believed by the learned President; the absurdity of the answer, therefore, renders it ineffective as a measure for defeating the judgment.”
In the Western State Court of Appeal, this was the only ground on which the appeal was decided in favour of the defendants and contrary to the views of the learned judge on appeal, the Western State Court of Appeal observed thus:
“It was never the contention of the respondents that the first plaintiff suffered loss of equilibrium. There is no suggestion either that there was defective interpretation in the court. With respect, we could not share the imaginative speculation of the learned judge, which is unsupported by any evidence.
The onus is on a plaintiff to prove his case. If the plaintiffs in this case said in one breath that the land was originally settled upon by their ancestors and in another breath, without any explanation whatsoever, that the land was originally settled upon by the ancestors of the defendants, without making any attempt to resolve that vital contradiction, they could not be said to have proved their title to the land.”
We have pointed out earlier on in this judgment that this ground only is the basis of the appeal to this Court and before us learned counsel for the plaintiffs contended that the statement credited to the first plaintiff on the record as it is could be no more than an accidental slip, and that it obviously runs counter to the whole of her evidence which almost spanned a period of some three days in the course of the hearing. Learned counsel for the plaintiffs also submitted that if the Western State Court of Appeal had reappraised the whole evidence in order to ascertain the real import of that piece of evidence, it would have come to the conclusion that the first plaintiff could not have meant or said that.
On the other hand, learned counsel for the defendants submitted that the first plaintiff, even though an octogenarian, did say what was recorded as having been said by her, that the statement supponed the case of the defence and that even though the statement is inconsistent with the other pans or portions of her evidence, the Western State Court of Appeal was justified in using that piece of evidence to give judgment against her and the other plaintiffs. In the course of the arguments before us, learned counsel for the defendants also submitted that the point in that piece of evidence by the old lady, Rabiatu Latunwoun Adelowo, was vital to the defence case and was indeed decisive of it.
Although learned counsel for the defendants contended that he addressed the Customary Court to the effect that the court should generally consider the whole evidence, he agreed that there was no indication on the record that he at any time before that court specifically dealt with this very important admission. Besides this, it is manifest that the point was never included in the original grounds of appeal and nowhere in the address of counsel to the Customary Court President was it canvassed in that Court.
The inference seems irresistible that it was detected only after reading the records of appeal from the Customary Court, hence it appears not in the original grounds of appeal but only in the additional grounds of appeal. The Western State Court of Appeal was obviously staggered by the incidence of such a piece of evidence because it clearly is inconsistent with the large body of evidence given by this old lady in the course of the proceedings.
The Court of Appeal sent for the original records of the Customary Court and stated that it had examined that record and found that it had been conectly copied into the record of appeal. The Western state Court of Appeal however failed to consider that after all if there had been a mistake as that court suspected, that mistake could have been as well a mistake of the President of the Customary Court recording the evidence of the witness or the typist copying the Customary Court record and not just that of the witness who was giving evidence.
We think ourselves, that the learned judge on appeal was right in his consideration of that piece of evidence. We think that if the witness had given that evidence in the way shown on the record, she would have been re-examined by her counsel who was in court. We think that if she had given that evidence, leamed counsel for the defendants would have at least referred to it in the course of his address to the Customary Court (not to say that he would have made heavy weather of it) and we think that if the evidence had occured in that, way the original grounds of appeal would have contained an attack on the judgment of the President of the Customary Court on that point.
Furthermore, there is this other aspect of the whole case. The old lady whose evidence is being discussed gave two inconsistent pieces of evidence before the Customary Court, one favouring her case that her father, Akinola, was the owner and first settler on this land and the other, favouring the defendants, that the ancestors of the defendants were the first settlers. In what is admittedly a most comprehensive examination and consideration of the whole evidence in the case, the learned President of the Customary Court preferred and accepted her evidence to the effect that her own ancestor, Akinola, was the first settler. The leamed judge on appeal affirmed this finding and took the view that the latter inconsistent statement as recorded contained an error somewhere. The Western State Court of Appeal decided, without showing any justiftcation therefore, to reject the findings of the learned President of the Customary Court and chose to decide the plaintiffs’ case on the single piece of inconsistent evidence in the whole proceedings.
We have ample justiftcation in concluding that the judgment of the Western State Court of Appeal cannot stand on this point and that, as there has been no cross-appeal by the defendants on their other grounds of appeal which were not considered, the judgment of the learned President in favour of the plaintiffs should be restored as affirmed by the learned judge on appeal.
This appeal therefore succeeds and it is allowed. The judgment of the Western State Court of Appeal, including the order for costs, is set aside and the judgment of the learned judge on appeal in the High Court, Abeokuta, including his order for costs, is restored. The plaintiffs will have the costs of this appeal fixed in this Court at N100 and in the Western State Court of Appeal at N100.
SC.234/74
