The Commissioner of Lands V. Kadiri Adagun (1937)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for possession of land—Crown Lands Ordinance—Question of admissibility of oral evidence of tradition raised—Onus of Proof.

Held : There being no misreception of evidence and respondent having discharged the onus, he was entitled to judgment and appeal is dismissed.

There is no•need to set out the facts. Ivor Brace for Appellant.

J. Martin for Respondent.

The following judgment was delivered :— GRAHAM PAUL, J.

In this case it is not disputed that by virtue of the Crown Lands Ordinance the onus of proof was upon the defendant at the trial. The learned trial Judge has held that the defendant did discharge that onus and he accordingly dismissed the plaintiff’s claim.

The grounds of appeal are generally that the learned Judge’s conclusion cannot be supported, partly because it is based on evidence wrongly received, and partly because there was misdirection as to the weight of the evidence.

The evidence said to have been misreceived is the evidence of tradition that the respondent derived his title to the land in question from one Ori, the founder of the Olorogun family, of which the respondent is now admittedly the head. No objection was taken to this evidence at the trial, but Counsel for appellant asks us to exercise our discretion under Schedule I, Order 6, Rule 28, of the Supreme Court Rules in his favour. I see no reason why the discretion should be so exercised. Apart from that in my view the evidence was not misreceived. It is the undoubted practice in this country to accept as admissible in cases as to title to family•land evidence of the tradition of the family ownership. Literacy among the people of this country does not go back very far, and the oral tradition is generally the only evidence available as to ownership of land earlier than the memory of living witnesses. The weight to be given to traditional evidence is of course another matter, depending on how far it is supported by other evidence of living people of facts within their own knowledge. These facts are generally regarded as the acid test of the truth or otherwise of the traditional story. In this case there was evidence enough if

believed to prove that this land in question has been for at any rate seventy years in the undisputed possession or controlof the Olorogun family as owners. That fact, if proved, supports the traditional evidence. There was no cross-examination of the witnesses for the respondent on their material evidence either as to tradition or as to the corroborative facts within their own knowledge. In these circumstances I see no reason to hold that the learned Judge was wrong in accepting and believing that evidence.

The only material evidence offered at the trial by the plaintiff was a set of plans made in 1891 of inter alia this piece of land. These plans purport to show that at the date of the survey from which they were made the land in question or a large part of it was either part of the lagoon or part of the foreshore. Not a single witness was called to support the plans in this respect. These plans were admitted in evidence under the rule of the Supreme Court (Schedule I, Order 6, Rule 14) which is as follows :—

” All maps made under the authority of any government, or of any public municipal body, and not made for the purpose of any litigated question, shall prima facie be deemed to be correct, and shall be admitted in evidence without further proof.”

It is clear from that rule that the learned trial Judge was right in holding as he did that such plans ” can only be prima facie evidence of the particulars which they purport to record.” There was ample oral evidence of eye-witnesses to contradict the prima facie evidence of the plans on the material point. There was no cross-examination of these witnesses on the material points, and the learned Judge accepted their evidence. No reason has been shown why this Court should interfere with the decision of the trial Judge in that respect.

It is perhaps necessary to observe that the second ground of appeal was not controverted by the respondent’s Counsel, who does not base his claim on occupation and user except as evidence corroborative of his case.

In my opinion the appeal should be dismissed.

KINGDON, C.J., Nigeria.

I concur.

PETRIDES, C.J., Gold Coast.

I concur.