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: