The Military Governor, Western State v. Chief Afolabi Laniba & Anor (1974)
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A. G. IRIKEFE, J.S.C.
On 16th October, the Commissioner of Lands, Western Region of Nigeria, took out an originating summons at the High Court, Ibadan, against the first and second claimants in this matter for a determination of the persons entitled to compensation in respect of that parcel of land shown and bordered in pink in PLAN No. OY 49 as per the government notice published in the Western Region of Nigeria Gazette No. 29 Volume 8 of 18th June, 1959.
The said land, with an are of 35.14 acres, lies and is situated in the Government Reservation Area of OYO, and was being acquired for public purposes by government under the Public Lands Acquisition Law (Cap. 105) Laws of Western Nigeria.
With the advent of the military regime at a later stage of these proceedings and the constitutional changes arising therefrom, an application was brought seeking an order substituting the Military Governor, Western State, for the Commissioner of Lands. The order sought was granted on 18th October, 1966. Before this, the two claimants had filed their respective statements of interest.
After a series of adjournments, evidence was taken in this matter by Adewale Thompson J, who at the end thereof, found in favour of the 1st claimants on the question raised in the originating summons thus:
“In the circumstances I make the following orders:
- That I prefer the evidence of the traditional history of the 1st claimants to that of the 2nd claimants.
- That I reject the evidence as to the grant to the 2nd claimant’s ancestor by Alafin Atiba on the ground
(a) That it is vague and inconclusive, and
(b) That there is palpable omission in the evidence as to the nature and terms of such grant.
- That I accept the evidence of the grant by 1st claimants’ ancestor to the ancestor of the 2nd claimants on the ground that it is honest and credible and furthermore it amounts to a “declaration” against the occupational interest of the 1st claimants as to parts of the land in dispute, but which does not entitle the 2nd claimants to be deemed owners of the land under section 21 of the Public Lands Acquisition Law Cap. 105 L/W.N. as the contrary has been shown to the satisfaction of this Court.
- That I accept the evidence of the 2nd claimants to the effect that they are entitled to compensation for the crops shown on Exhibits ‘B’ to ‘B4’.
- That I reject the opposition of the 1st claimants to the payment of compensation for the crops to the 2nd claimants on the ground that it is baseless and misconceived.
- That the 1st claimants are the parties entitled to compensation for the land in dispute.
- That the 2nd claimants are the parties entitled to compensation for the crops enumerated on the land as shown on Exhibits ‘B’ to ‘B4’.
- That I reject the finding as to ownership by the Oyo Southern District Council on the ground that the decision was not acceptable to the 1st claimants See Inyang Vs. Ession 2 F.S.C. 39. It is to be assumed that if the applicants regarded the decision as being of any value, they would not have proceeded by way of originating summons to determine ownership but would have paid compensation to the 2nd claimants.
9 That since the issue litigated on the statements of interest of the parties is one of ownership of the land, the 1st claimants are entitled to the cost of these proceedings which I fix at 200 guineas.”
Against the above decision, the 2nd claimants appealed to the Western State Court of Appeal on a number of grounds; but that on which that court based its decision complained:
“That the learned trial judge erred in law by wrongfully admitting and adopting the contents of “History of Yoruba” by Dr. Johnson and “History of Abeokuta” by A.K. Ajisafe and relying on them as evidence of traditional History in favour of the 1st claimant/respondent.”
In the course of its decision, the Western State Court of Appeal observed as follows:
“Now, in a case of this nature, where there are two rival claimants to a parcel of land for the purpose of compensation, it is the duty of each claimant to establish his title to the land as if he were plaintiff in a declaratory suit.
Each statement of interest is to be treated as if it were a statement of claim in a declaratory suit and neither statement of interest is to be treated as a statement of defence”.
We agree with the direction of the learned trial judge in this respect when he said:
“The issue to be tried in this case is analogous to that of a case of declaration of title, but it is not such a claim. It is pure and simple, an issue as to who is entitled to compensation, and that should be decided in favour of any of the two parties who could establish title to the land The issue of possession is relevant only to buttress the claim of ownership and whereas in this case, the claim of each party is based on the grant and evidence of traditional history, will have to be considered on their own individual merits and the case of either of the parties must stand or fall on the strength of such traditional history and or grant.”
The Court of Appeal then proceeded to subject the decision of the trial court to a most thorough scrutiny and came to the conclusion in effect that, the said court had relied unduly on the history books produced before it, which in the event that happened, had not even been admitted in evidence, and the Court of Appeal adjudged as follows:
“The appeal therefore succeed and it is allowed The judgment and orders of the High Court including the order as to costs are hereby set aside. The case is remitted to the High Court, Ibadan, for retrial by another judge in the Oyo Judicial Division. The appellant is awarded costs assessed at N115 against the 1st claimant/respondent being costs in this court. The costs in the High Court will abide the retrial.”
The 1st claimants have now appealed to this court against the decision of the Western State Court of Appeal, while the 2nd claimants have filed a notice that the said decision be varied pursuant to Order VII Rule 13 of the Supreme Court Rules. At the hearing of this appeal, Mr. Molajo, counsel for the 1 st claimants objected that matters contained in the notice of variation were such as could only properly be raised in a cross-appeal, and as we were also of this view, the said notice was struck out.
We were thus left, with the substantive appeal of the 1st claimants in which they complained on three grounds thus:
“(1) The judgment is against the weight of evidence.
(2) The learned judges of Appeal misdirected themselves when they stated:
“The learned trial judge made a thorough examination of the case of the ftrst claimant but as it is patent that his rejection of the claim of the second claimant was based mainly on examining that claim and testing the veracity of the evidence of the witnesses against the background of Johnson’s History of the Yorubas which the learned trial judge treated as evidence, it is our view that the rival claim of the first claimant could not have been justly treated.”
When in fact the learned judge Thompson J. in the High Court had stated as follows:
1st Passage: Furthermore the evidence was that Ojo Aburumaku acquired ownership of the land in dispute by virtue of a grant from Alafin Atiba, there is no evitknce as to the nature of the grant, whether it was an absolute gift or whether Ojo Aburumaku was merely a customary tenant”
2nd Passage: It has long been decided that where a claim is based on a grant, there ought to be evidence of the precise tenns of the grant upon which any specific claim could be based.
3rd Passage:That I reject the evidence as to the grant to the 2nd claimant’s ancestor by Alafin Atiba on the ground:
(a) That it is vague and inconclusive.
(b) That there is palpable omission in the evidence as to the nature and terms of such grant.”
The said three passages were findings of fact which were independently made and did not rest on any “testing of the evidence of the witnesses against the background of Johnson’s history of the Yorubas which the learned trial judge treated as evidence.”
(3) The learned judges of the Appeal Court misdirected themselves by stating as follows:-
(i) The learned trial judge was with respect so preoccupied with reference to the history books that he could not deal with the case on the evidence before him.
(ii) We think therefore that this case should be retried for in our view the evidence before the Court was not adequately considered by the learned trial judge. When in fact the learned trial judge came to separate findings of fact which did not depend on any historical books such as Johnson’s History of the Yorubas or the book of A.K. Ajisafe.
The said independent fIndings of fact is stated as follows:
”That I accept the evidence of the grant by 1st claimant’s ancestor of the second claimant on the ground that it is honest and credible and furthermore it amounts to “declaration” against the occupational interest of the first claimant as to parts of the land in dispute, but which does not entitle the second claimant to be deemed owners of the land under section 21 of the Public Lands Acquisition Law Cap. 105 Law of Western Nigeria as the contrary has been shown to the satisfaction of this Court.”
Mr. Molajo, learned counsel for the 1st claimants dealt with the three grounds of appeal together, and the gist of his complaint is that the Western State Court of Appeal erred in deciding that the decision of the learned trial judge could not stand alone without support from the facts drawn from the history books which counsel submitted, were not borne out by the record. Learned counsel then proceeded to isolate each finding of fact made by the trial coon that alleged supporting evidence and argued that in the circumstances, it would be wrong to deprive the appellant of a judgment which had been anived at after a most careful and searching appraisal of the evidence by the court of trial. Chief Akerele, learned counsel for the 2nd claimants, in substance repeated his argument before the Western State Court of Appeal to the effect that, if facts drawn from the history books were excised from the judgment, the evidence would be inadequate to support the decision of the court of trial. We have carefully related each finding of fact made by the trial court, to the evidence produced before it and are left in no doubt that each of such finding can stand alone without the matters said to have been drawn from the history books.
Once again, we are constrained to emphasize that the ascription of probative values to evidence produced in court proceedings is a matter coming within the special province of a court of trial and that, in this case the learned trial judge who saw and heard the witnesses would appear to have come to the right conclusions on the evidence placed before him.
Indeed, when we called upon Chief Akerele, counsel for the 2nd claimants to show us just one finding of fact made by the trial court which could not stand alone, he was unable to do so. In view of the foregoing, we are convinced that the Western State Court of Appeal was wrong in the conclusion it came to in this appeal by setting aside the judgment of the learned trial judge.
Mr. Okuwa, learned counsel representing the Military Governor, told us, when we called upon him, that he had no contribution to make in this appeal. The record shows that this had been the stand of Mr. Okuwa throughout the entire proceedings. We note, however, that this attitude of counsel was criticised by the Western State Court of Appeal. We are unable to appreciate the basis for this criticism.
As government had agreed to pay compensation in this matter to whomsoever was adjudged the owner of the land the subject of the acquisition, we are unable to see what contribution counsel could have made, in the battle for title between the two rival claimants. It seems to us that counsel, as it were, was walking on a tight rope and any participation he might make in the proceedings, no matter how innocuous, could easily be branded by either of the contestants as partisan The appeal accordingly succeeds and it is allowed.
The decision and orders dated 12th April, 1973, made in this matter by the Western State Court of Appeal are set aside and the judgment of Adewale Thompson, J. (High Court Ibadan) dated 8th January, 1968, is restored in full. This shall be the judgment of the court. The 2nd claimants shall pay the 1 st claimants the costs of this appeal which we asses at N160 in this court and N100 in the Western State Court of Appeal.
Other Citation: (1974) LCN/1871(SC)
