Y.A. Lawal v.Chief Yakubu Dawodu & Anor (1972)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

This appeal is a sequel to an action instituted in the High Court of Lagos State, Ikeja, in which two plaintiffs acting “for themselves and the chiefs and people of Irede” had sued Bello Ayilara, the Olojo of Ojo, for himself and the chiefs and people of Ojo for the following claims:-

(1) Declaration of title under Yoruba Native Law and custom to an area of land situate, lying and being at Imuwo Village, Oshun Village and Ashogun Village, Badagry Division of the Western Region of Nigeria;

(ii) 500(pound) special and general damages for acts of trespass committed by the defendant, his servants or agents on the said land;

(iii) Injunction against the defendant from the further acts of trespass on the said land. Value of the said land 1,000(pound).

The plaintiffs, as originally named on the writ of summons were (i) Oba Amodu Sekoni, the Onigbanko of Irede; and (ii) Y.A. Lawal, both of whom are described in the plaintiffs’ statement of claim as the head and accredited representatives of the chiefs and people of Irede and duly authorised by the said community to bring and prosecute this action. The first plaintiff, i.e., Oba Amodu Sekoni, died before the hearing culminating in this appeal and the second plaintiff only, that is Y.A. Lawal, then carried on the action.

He is the present appellant in this court and would hereafter be referred to as plaintiff in the capacity in which they both originally appeared on the writ. It would also appear that Bello Ayilara died before the hearing of this appeal. An application was made to this court – “for an order substituting the above named applicants, that is (i) Chief Yakubu Dawodu; and (ii) Alhaji Mudashiru Ayilara for the defendant, Bello Ayilara …….”and order as prayed was made by this court on the 15th May, 1972. Hence, the present names of the parties to the proceedings before us. The substituted defendants will be referred to as the defendants in this judgment in the capacity in which the original defendant had been sued and in which the actions was defended.

Before the High Court, Ikeja, pleadings were filed pursuant to the order of court. By their statement of claim the plaintiffs aver that the land in dispute is situated at Imuwo Village, Oshun Village and Ashogun Village in Badagry Division; that the land formed portion of a large area of land belonging under Yoruba Native Law and Custom to the Oba, chiefs and people of Irede, over which they had for over 300 years exercised “maximum acts of ownership and possession” and that some two or three years before the institution of the present proceedings the defendant by himself, his chiefs and people and their servants and/or agents wrongfully trespassed into the said lands by selling portions of same, calling in surveyors to survey the land, making grants of portions of the lands to tenants and cutting down and carrying away the plaintiffs’ firewood, crops, vegetables and trees on the land, claiming the same as their absolute property “including Tedi, George, Itogbe, Oshun and Aiyetoro Villages”. Paragraph 10 of the plaintiffs’ statement of claim reads as follows:-

“10. By virtue of their right of absolute ownership the plaintiffs’ family have fought and won several cases in the then Supreme Court of Nigeria – Lagos Division – and the West African Court of Appeal declaring them owners of the surrounding area of land in and around the one in dispute and they will rely on the following suits –

Suit No. 44 of 1900

Taiwo Bale of Irede v. Iyapo Alaka & Ors.

Suit No. 60 of 1940

Fakoku v. Saibu Chief Lemomu Ojo & Ors.

Appeal No. WAC. 1557

Fatade Odu v. Saibu Chief Lemomu Ojo & Ors.”

The defendant as well filed a Statement of Defence. By his statement of defence the defendant avers that “the land in dispute is part of Ojo land and is vested under Yoruba Native Law and Custom in the Oba, chiefs and people of Ojo from time immemorial as the original settlers thereon long before the ancestors of the plaintiffs came to live at Irede”. The Statement of Defence further states that the sales and grants of portions of the land in dispute were effected by him as of right and denies the principal averments of fact in the Statement of Claim.

The action was tried by Beckley, J. Apart from the plaintiff himself, 8 other witnesses gave evidence on his side. The plaintiff identified the plan of the land in dispute as made on his instructions by his surveyor, Mr. Bode Lawson who was also one of his witnesses. The plan was admitted in evidence as Exhibit “A”. He stated that his people of Irede have been on the land in dispute for over 300 years, that some 7 or 8 years before the commencement of the action the defendant and his people disturbed his tenants on the land and have since claimed the land as their own. He testified further as follows:-

“They claimed to be the owners of the land, and damaged the crops of our tenants.

After this action was brought to court, Bello Ayilara and his people surveyed the land. The villages on this land in dispute are Muwo, Tedi, George Village, Ito-Ogbe-Ango, Asogun Village, Aiyetoro Village, Oshun Village. The defendant is still claiming the land in dispute, hence this action.”

He then gave evidence concerning paragraph 10 of his pleadings. He tendered as Exhibit “E” a certified true copy of the judgment in a Suit No. 44/1900. He also produced the proceedings in the case as Exhibit “J”. The case is entitled Taiwo Bale of Irede v. Iyapo Alaka Bale of Ojo & Ors. He stated that in the year 1940 his own mother, Fakoku, successfully sued the chiefs and people of Ojo for a declaration of forfeiture of lands tenanted by them of the people of Irede and known as Imuwo Island. He produced the record of proceedings and judgment of the case, i.e. Suit No. 60/1940 – Fakoku v. Saibu Chief Lemomu Ojo & Ors. and these were admitted in evidence as Exhibits “F” and “G” respectively. He testified that the Ojo people appealed unsuccessfully against the judgment Exhibit “G” and produced, and this was admitted as Exhibit “H”, a certified true copy of the judgment of the West African Court of Appeal. The plaintiffs’ surveyor, Mr. Bode Lawson, testified that he had produced the plan Exhibit “A’ on the instructions of “the Oba Onigbanko of Irede backed by his chiefs”. A number of plans were put to him during his examination in the witness box and these were all admitted in evidence as Exhibits “B”, “C’ and “D”. The witness, Abudu Karimu (P.W.3) gave evidence of his occupation of Tedi Village. He stated that his own father lived and died in that village and that they were tribute paying tenants of the plaintiffs’ people. Mohammed Rabiu stated that he was the head of the village called Ito-Ogbe-Ango and that he paid tributes to the plaintiffs for his holdings. In the same way Mumuni Ramonu (P.W. 5) gave evidence of the occupation by his own father and himself of Muwo Island by the leave and licence of the plaintiffs. The 6th P.W., Musa George, testified in part as follows:-

“I am a very old man, but I cannot state exactly my own age. I know the P.W. 2, Y.A. Lawal. I am older than the second plaintiff. I was born at George’s Village, Irede’s land. My father was the Head of George’s Village. …… My father was an old man, and he came to the land after the Ashanti War. After his retirement from the Army, he asked for permission from Irede people to farm on the land in dispute.”

The 7th P.W. was the head of Oshun Village and he, like the others, stated that he was put on the land occupied by him in Ojo by the plaintiffs. Concerning the payment of tributes to the plaintiffs’ people, the 8th P.W., Abudu Disu, after stating that he was born in Ashogun Village, testified –

“Sometimes we pay our tributes personally to the Oba of Irede, and at time we pay our tributes to the elders of the town. When the Oba was not available, we pay our tributes to the elders of the town of Irede. My brother used to take the tributes to Irede and sometimes I take the tributes there personally; and sometimes we send any messenger to take the tributes to Irede. My brother’s name is Alfa Momodu. It is the whole of our village which contributes the tributes. Kasali is the present Bale of the village.”

The 9th P.W. was Gbadamosi Oniba the Oniba of Iba, an old man who stated that he had been the Oniba of Iba for some 44 years before the time he was giving evidence. He stated in the course of his testimony in court as follows:-

“The land in dispute is the boundary between my own land and the Onigbanko of Irede. I know Muwo village. I also know Tedi Village. I do not know George Village. I know Oshun village, which is a boundary between myself and the Onigbanko. The Olojo has no land on the land in dispute. In fact the defendant is on my own land. I know all the boundaries of the land in dispute. I know the Onibasa of Ibasa. I have no boundary with Onibasa of Ibasa. My boundary is with the Onigbanko of Irede.”

After the 9th P.W. had given evidence, the plaintiffs’ second witness, Abudu Karimu, was recalled. He testified to the effect that he accompanied his own father, later deceased, to the court whilst the action in Exhibit “J” (and Exhibit “E”) was being tried and that he heard his father give evidence in the case which was between the Irede people and the Ojo people. The witness then produced as Exhibit “K” the transcript of the evidence of his own father, Ajimuti, in the proceedings and as Exhibit “L” the transcript of the evidence of one Alebiosu in the same proceedings. The production of these transcripts was opposed by learned counsel for the defence but relying on the provisions of Section 34(1) of the Evidence Act, the learned trial Judge overruled the objection. In the course of his ruling on the point the learned trial Judge admitted the transcripts in evidence.

For the defence the original defendant, Bello Ayilara, gave evidence. Concerning the settlement of his people at Ojo, he testified thus:-

“The first Olojo came from Benin and he was the Oba of Benin. The first Olojo travelled from Benin to Lagos, and met Onido of Ido who advised him to find other lands upon which to settle. The first Olojo then went to the place now known as Ojo to settle.”

He gave evidence covering his own ancestry and of the extensive areas of land over which his own progenitors held sway. About the plaintiffs he testified that-

“Gbanko is on the way to Badagry. When the people of Irede left Gbanko, they came to Ojo. They stayed in Ojo. The Olojo gave them a place to settle, and the place is called Idiroko. The people of Irede came from Gbanko about 60 years, and they were permitted by the Olojo to settle at Idiroko. I was young at the time, but my father had personal knowledge of the time when the Irede people came from Gbanko. They came to the place during the Egba War to take refuge.”

He testified that his people of Ojo do not take tributes from any of their tenants and that they made “free grants of land” to them. He then spoke about the plaintiffs’ witnesses, Disu, Musa George, Saka Bale and indeed Yesufu Lawal himself, and gave disparaging evidence concerning them. He stated that he it was that consulted the District Officer before the road to Ajegunle was built and that indeed he and his people had built the road; that he had given the approval for using the land for the building of the maternity centre at Ojo to the Government and that he had given the land for the school site at Tedi Village to the proprietors of the school.

Other witnesses were also called for the defence. Gbadamosi Alaka, a woodcutter, claimed to have always lived like his own father at Tedi Village. The 3rd defence witness was one Muritalabi Adamu, a farmer of Ira Village, who testified that he lived in that village and that there were about five houses there. He was cross-examined concerning his knowledge of Tedi Village and he stated thus:-

“I do not pay tributes to anyone. The land belongs to Ojo. I am a son of Ojo. I know Tedi Village. I do not know the name of the head of the Tedi Village. I know Abu Gbadamosi Alaka a son of Ojo. Abu Gbadamosi Alaka does not pay any tribute. I know Lemomu Karimu. He always come to pray every Friday at Ojo. He comes from Tedi. Lemomu Karimu is the head of Tedi Village. Lemomu Karimu does not pay tributes to the Onigbanko.” (Underlining is ours.)

and, later in the course of cross-examination, he stated –

“The Ojo people do not now claim Muwo. There is a place near Muwo called Iyewe. That place is claimed by the Olojo. I know the Island opposite Muwo. The Ojo people are not claiming the Island opposite Muwo. The Island is called “Ito Isewinrin”.

It is never called Muwo Island. It is called Oriamo Island. It is also called Abumbu.”

Sufianu Bale, the Bale of Ibassa, testified for the defence. According to him, he had lived all his life at Ibassa on the south-eastern border of the land in dispute. He testified further thus:-

“The Irede people are farming on the boundary of my land and that of the Olojo. It was the Olojo who gave the Irede people the land on which they are farming.”

Another witness, Saka Sule, who testified for the defence stated that he was born at Idiroko Village in Ojo where the Olojo had accommodated his parents who were fugitives from their home-land, Igbanko, during the Dahomean War. Alhaja Nimota, 6th defence witness, gave evidence of her own connection with Ojo. Her ancestor, Alfa Buraimoh, had come to Ojo where the Olojo of Ojo had given him land to settle at Oshun Village. Three other witnesses further testified for the defence. One of them was the defendant’s surveyor, Max Madarikan. He testified that he had made the plan Exhibit “C” on the instructions of the defendants who “gave me two young men to go on the land with me.”

A building contractor by name Moses Erinle, 7th defence witness, testified that the land on which the school at Tedi Village was built belonged to the Olojo. Under the cross-examination he stated as follows, inter alia:-

“I know the Olojo gave the land for the building of the school at Tedi, because when he invited me to his palace, Hundeyin the Education Officer was there, and the Olojo instructed Hundeyin to take me to the site for the building of the school. It was the Council who financed the building of the school. The school was built for all and sundry around that area. I have not known that Tedi village is also called Tedi Irede.”

The Oluwo of Ojo, Sanni Oteniya Oluwo, gave evidence for his people. He testified to the settlement of the Irede people stating as follows:-

“I know the people of Irede. The Irede people are strangers to the people of Ojo. The Irede people came from Igbanko. When they came from Igbanko, the then Olojo gave them a piece of land at Idiroko. When the Irede people were at Ojo, they used to go fishing to Irede. After fishing, the people will bring the fish back to Ojo for sale. After sale they would go back to Irede.”

He confirmed that the people of Irede were still on the land in dispute and were farming the land. He stated that the Olojo of Ojo gave permission for the building of the road to Ajegunle. He was cross-examined about the occupation of portions of the land in dispute by strangers and he testified thereon as follows:-

“It would not be correct that the strangers are paying tributes to the Onigbanko. The strangers do not pay tributes to the Olojo. The strangers do not acknowledge the Olojo as the owner of the land, hence they are contesting this case with us.”

After the conclusion of their evidence, learned counsel on both sides addressed the court at length. In a reserved judgment, the learned trial Judge upheld the case of the defendants and dismissed the plaintiffs’ case with costs. In the course of his judgment, the learned trial Judge extensively reviewed the evidence in the case. Before then he had directed himself, after summarising the pleadings of the parties, as follows:-

“On a perusal of the statement of claim and the Statement of Defence, the onus is on the plaintiff to prove –

(1) by preponderance of evidence that he and his people were the original settlers on the land in question, to outweigh the evidence of the defendant who claims that he and his people were the original settlers ever before the plaintiff’s ancestors came to settle on the land opposite the land now occupied by the defendant.

(2) The exact identity of the land in dispute.

(3) The specific acts of trespass complained of.

(4) That the various judgments referred to relate to the land in dispute and to no other and that they are res judicata, binding both parties in this suit.

(5) The plaintiff must succeed on the strength of their own case and not on the weakness of the case for the defendant.”

The learned trial Judge then reviewed the evidence of the plaintiffs on trespass and concluded that not one tenant whose crops were destroyed had been called as a witness by the plaintiffs. He then examined the case of 1900, Exhibit “E” (and “J”) and observed thus:-

“In the first instance there is no plan attached to the judgment in the case of 1900 (Exhibit “E”) and as such it is impossible for one to say what part of the land is affected by that judgment. …….. All the land it refers to in that case is the plaintiffs’ land at Muwo. Muwo is a small village towards the extreme Western portion of the plan, Exhibit “A”.”

The learned trial Judge again considered the case of 1940, i.e., Exhibit “G” and the appeal therefrom, Exhibit “H” and on them he commented as follows:-

“The island which is evidently referred to in the case of 1940 is the island which is edged black in the plan, Exhibit “B” and is not the land at present in dispute between the parties…….. The claim before the court in this case is simply for a declaration of title to the villages of Muwo, Oshun and Asogbon. The claim does not in any way imply that the defendants were at any time the tenants of the plaintiffs.”

The learned trial Judge then dealt with the evidence of the defence witnesses. He expressed satisfaction with the evidence of the defendant, Bello Ayilara and concerning the evidence of the 7th defence witness, Alhaja Nimota, the learned trial Judge observed as follows:-

“I must say that I have subjected the evidence of this witness to the minutest scrutiny and I am highly impressed with her evidence. I think she has told the truth.”

The learned trial Judge then discredited one by one of the witnesses for the plaintiffs and found against the plaintiffs on all the points on which he had earlier on directed himself. As stated before, he then dismissed the plaintiffs’ case with 200 guineas as costs and this appeal is from that judgment.

Before considering the arguments on appeal, we think it appropriate at this juncture to comment on the inordinate delay in giving the judgment of the High Court in this case. Learned counsel appearing for the parties concluded their addresses before the learned trial Judge on the 4th June, 1969 on which date the Judge announced and recorded that judgment was reserved sine die. Judgment was not given in the case until the 17th April, 1970. One of the grounds of appeal filed against the judgment complains of the inability of the learned trial Judge after such a long period of delay to appreciate in their proper foci the issues raised or to remember clearly his own impressions of the witnesses and/or their evidence. This is not the first occasion when we have to express the disapproval of this court of such inexcusable delay in writing judgment, but it is well worth consideration by all courts that human recollections may lose their strength with the passage of time and that justice delayed is as bad as justice denied and may even, under certain circumstances, be worse.

Be that as it may, on appeal before us the issues canvassed ranged around the inadequacy of the consideration given to the evidence as given by the parties and the failure of the learned trial Judge to ascribe the proper probative values to the evidence concerning title to the land claimed, acts of possession suggestive of exclusive dominion over the land and the binding effect of interlocutory orders as between the parties to a case.

It was contended for instance by learned counsel for the plaintiffs before us, that the learned trial Judge was in error of law when he failed to appreciate and recognise that his own ruling on a matter raised during the trial does constitute res judicata on that matter as between the parties. We pointed out earlier on that during the trial learned counsel for the plaintiffs had sought to put in evidence the transcripts of the evidence given in previous legal proceedings between the same parties (i.e. Suit No. 44/1900 – Exhibits “E” and “J”) by witnesses who were proved to have died. Learned counsel for the plaintiffs relied on the provisions of Section 34(1) of the Evidence Act in urging the admission in evidence of the transcripts of the evidence of both Ajimuti and Alebiosu. The application was strongly opposed by learned counsel for the defence who stated, inter alia, in argument as follows:-

“The case was between two individuals and not in representative capacity. Submits that the 1900 case is not a case of certain community claiming as against another community. Nothing to show in the proceedings that Taiwo was claiming the land as the communal property of Irede people. It is not true to say that the parties in this case are descendants of the parties in the 1900 case.”

The learned trial Judge overruled the objection of the defence and we think that he was right in doing so. Section 34(1) of the Evidence Act, Cap. 62 provides as follows:-

“34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a latter stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:

Provided –

(a) that the proceeding was between the same parties or their representatives in interest;

(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(c) that the question in issue were substantially the same in the first as in the second proceeding.”

Clearly, the section postulates the reception in evidence of a transcript of the evidence of a witness in previous judicial proceedings between the same parties where the conditions prescribed under the proviso are complied with. In the course of his ruling on that issue, the learned trial Judge observed thus:-

“The suit 1900 relates to Imuwo land which is part of the land being claimed in this present action and it is my view that the evidence of Ajimuti and Alebiosu given in the 1900 case at page 5 of Exhibit “J’ and pages 7 and 8 of Exhibit “J’ are quite relevant to the matter now in issue in the present case.”

So, evidently in this ruling the learned trial Judge upheld the claims of the plaintiffs that the judgment in Exhibit “E” (and “J’) was in respect of the same land (or part of it) as was then being litigated before him. Later, however, in writing his final judgment in the case, the learned trial Judge observed concerning the same judgment, Exhibit “E”, as follows: –

“I am unable to accept that that judgment is res judicata as far as the land now being litigated between the plaintiff and the defendant is concerned.”

and at the end of his judgment he stated on the same point as follows:-

“The judgment of 1900 tendered in this suit cannot be regarded as res judicata between the plaintiffs and the defendants in respect of the land now being claimed by the plaintiffs from the defendants.”

Before us it was argued by learned counsel for the plaintiffs that the Judge was wrong to disclaim in his judgment what he had expressly upheld by his interlocutory ruling in the course of the proceedings. Learned counsel for the defendants has no answer to this contention and we think that the failure of the learned trial Judge to treat an issue that was clearly res judicata as such is a mistaken view of the law.

In Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630, the matter was fully considered by the Court of Appeal. In the course of his judgment in that case, Lord Denning, Master of the Rolls, at p. 640 observed as follows:

“But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.”

In the same way, Diplock, LJ., (as he then was) discussed the point and at p. 642 observed as follows:

“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provisions enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined.”

We are clearly of the view that the learned trial Judge was not entitled, as he thought he was, to alter the effect of his own ruling on the issue previously decided by him in the course of the same proceedings in favour of the plaintiffs. The judgment, Exhibit “E”, concerns the land know as Muwo which, according to the learned trial Judge himself, was part and parcel of the land at present in dispute between the parties. That judgment was against the present defendants and was in favour of the present plaintiffs. The whole exhibits reads as follows:-

“TAIWO BALE OF IREDE V. IYAPO ALAKA, BALE OF OJO AKIBIYI, ABE, BANKOLE AND ABAGUN OF OJO CLAIM 100pounds as Damages for wrongfully entering the Plaintiff’s land at Muwo and cutting the Plaintiff’s Palm nuts and an injunction to restrain the defendants their people and servants from the continuance and repetition of the injuries of like kind relating to the same right.

xxx

JUDGMENT for the Plaintiff for 35pounds damages for trespass and costs assessed at 10pounds; also the injunction asked for in the writ of summons restraining the defendants from committing further trespass.”

It is manifest from his pleadings that the defendant is in this case still claiming Muwo Village which is covered by Exhibit “E”. On the plan Exhibit “B”, Muwo Village lies to the east of the lagoon and forms the western portion of that part of the land east of the lagoon. It is the Western portion of the land in the Plan 4A. This is as pleaded in the plaintiffs’ statement of claim at paragraphs 2 and 3. With respect to these paragraphs of the statement of claim, the defendant pleaded in paragraphs 4, 5 and 6 of his statement of defence as follows:-

“4. The defendant admits a paragraph 2 but only in so far as the land in dispute is in Badagry Division and within the jurisdiction of this Honourable Court.

5. With further reference to paragraph 2 of the statement of claim the defendant avers that the land in dispute is part of Ojo land as depicted on the plan filed with this statement of defence and edged “Red’ thereon.
6. In denial of paragraph 3 of the statement of claim the defendant avers that the said land belongs to and is vested under Yoruba native law and custom in the Oba, Chiefs and People of Ojo from time immemorial as the original settlers thereon long before the ancestor of the plaintiffs came to live at the place which is known as ‘Irede’ today and which is on the opposite side of the lagoon from Ojo town.”

In the course of his evidence in court, the plaintiff, Y.A. Lawal, stated, inter alia, that despite the judgment in Exhibit “E’ the defendant still claimed the land known as Muwo as his own. In the course of his own testimony in court, the defendant himself, Bello Ayilara, stated thus:-

“I know the land in dispute. The land in dispute has the following villages; Tedi, Ito-Ogbe Ango, George Village, Ashogun Village, Oshun Adalemfogun Village, Imuwo Village, on the way to Tedi. Imuwo belonged to the Olojo. It still belongs to the Olojo. I am still claiming Imuwo.”

Learned Counsel for the defendants has submitted to us that the defendants do not claim Muwo and invited us to look at the evidence of the 3rd defence witness, Muritalabi Adamu who had, inter alia, stated thus:-

“The Ojo people are not claiming the Island opposite Muwo. The Island is called “Ito Isewinrin”. It is never called Muwo Island. It is called Oriese Island. It is also called Abumba.”

We are in no doubt about the tendency of the defendants’ case, by their pleadings, by the evidence of the defendant himself and by the evidence of his witnesses. The defendant himself claims that his claim includes Imuwo Island despite Exhibits “G” and ‘H” and in including Muwo Village in his claim, one should remember the evidence of his surveyor, Max Madarikan, that not only did he send two men to show the surveyor the lands which he claimed but he also handed over to him a copy of an old plan, Exhibit “N” which clearly, according to the evidence of Mr. Max Madarikan, included Muwo Village. It is also easy to see the slant in the evidence of the witness Muritalabi Adamu. If then Muwo Village is part of the land in dispute in the present proceedings, as indeed it is and as indeed is postulated by the ruling of the learned trial Judge in admitting Exhibit ‘E” in evidence, then the learned trial Judge should have come to the conclusion that at least in respect of a portion of the land claimed by the plaintiffs before him they unequivocably established their title and that in those circumstances he could not and should not have made the order dismissing the case of the plaintiffs as if they had failed in toto. (See generally the observations of the Federal Supreme Court on this point in Ukia Edam & Ors. v. Aja Orie & Ors. FSC 54/62 delivered on 21st March, 1963; also Privy Council in Azuike Ume & Ors. v. Alfred Ezechi & Ors. (1964) 1 WLR 701 at 706). In the circumstances an order of dismissal of the plaintiff’s case in the entirety would have the effect of robbing them of the judgment which they had earlier on obtained in respect of portions of the land presently in dispute, without setting aside that judgment.

Learned counsel for the defendants had argued that the learned trial Judge had come to the right conclusion on the evidence which he submitted had been very carefully weighed by him one piece against the other. But, the present issue is one of law and it is clear to us that the Judge wrongly failed to appreciate the binding effect of his own interlocutory decision on the subject-matter of the judgment, Exhibit “E” on the parties and that if he had rightly regarded that ruling as he should have done, he would not have dismissed the plaintiffs’ case as he had done. We think that the contention of the plaintiffs on this ground of appeal is well founded.

Next, learned counsel for the plaintiffs contends that the plaintiffs had by evidence and notorious acts of possession shown that they have always exercised dominion over the lands in dispute and that they are the owners of same. Learned counsel for the defendants contends that the plaintiffs had failed to discharge the onus of proof which by the decision of the West African Court of Appeal in the celebrated case of Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 is placed on them; that the appraisal of the evidence of witnesses was a matter for the Judge who saw and heard the witnesses and that this court should not interfere with his findings.

We had already set out the main points (there are five of them) on which the learned trial Judge directed himself in the course of his appraisal of the evidence in this case. At the end of his judgment he observed as follows:-

“Having given the whole evidence my careful attention, I have come to the following decisions:-

(1) That the plaintiff has failed to prove by preponderance of evidence that he and his people were the original settlers on the land in dispute. The traditional evidence of the defendants in this case, in my view, outweighs the evidence led by the plaintiffs.

(2) The plaintiffs have failed to prove the exact identity of the land in dispute. They have called some tenants to prove payment of rents to them in respect of the villages scattered on the land in dispute, but as I have said earlier on in this judgment, I am not very much impressed with the evidence of those tenants. They have not proved, in my view, the extent of their holdings.

(3) The plaintiffs have failed to prove acts of trespass complained of by them in paragraphs 6, 7 and 8 of their statement of claim.

(4) The judgment of 1900 tendered in this suit cannot be regarded as res judicata between the plaintiffs and the defendants in respect of the land now being claimed by the defendants. Also the judgment of 1940 which was also tendered referred to an island. That judgment does not refer in this case to the whole land now being claimed by the plaintiffs.

(5) Lastly, the plaintiffs’ case, in my view, is weak.

In the circumstances, I have no hesitation but to dismiss the plaintiffs’ claim in its entirety.”

In the evaluation of evidence we think it firmly established in our jurisprudence that a Court of Appeal ought not, except in exceptional circumstances, to interfere with what must be considered the outcome of a dispassionate consideration of the evidence by a Judge who saw and heard the witnesses give evidence. The inscription of probative values to evidence comes at a later stage of the whole process and it is also established that this is a matter for the Judge who saw and heard those witnesses give evidence. Nevertheless, the area is one in which the Court of Appeal is at least equally qualified and competent and indeed is often required to exercise jurisdiction in certain, albeit exceptional circumstances. A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber-stamp an error however glaring.

In Fatoyinbo & Ors. v. Williams alias Sanni & Ors. (1956) 1 FSC87 the Federal Supreme Court observed on a similar occasion as follows at p. 87 ff:

“The appeal is accordingly one on facts and the principles on which a Court of Appeal acts in such appeals are succinctly stated thus in the opinion of Lord Thankerton in Watt or Thomas v. Thomas.

“I. Where a question of fact has been tried by a Judge without a jury and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion in the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witness, could not be sufficient to explain or justify the trial Judge’s conclusion;

II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

III. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakenly so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court……

For these reasons applying for the principles in Watt or Thomas v. Thomas it seems to me that as the learned Judge did not, in coming to his decision, rely on the advantages of having seen and heard the witnesses, and as some of the reasons which he gave for his decision have been shown to be erroneous, I think that this appeal falls within the first and third of Lord Thankerton’s propositions above quoted. It is therefore open to this court to examine all the evidence in the suit ….”

Only recently the Supreme Court had occasion to restate the principles on which a Court of Appeal acts in its approach to appeals on facts. And, in Paul O. Omoregbe v. Ehigiator Edo SC. 142/69 decided on the 29th October, 1971, this court observed as follows at p. 9 of the judgment:

“It is not the business of a Court of Appeal to substitute its own views of the facts for those of the Judge or tribunal that had heard and seen the witnesses but if the Judge or tribunal has failed to make proper use of the opportunity of seeing and hearing the witnesses, or if from stated or uncontroversial or indisputable facts, inferences are shown to have been drawn which are wrong or are not supported by the evidence, then the Court of Appeal must in the interest of justice exercise its own power of reviewing those facts and drawing appropriate inferences from them.”

See also Watt or Thomas v. Thomas (1947) AC 484 esp. per Lord Thankerton at pp. 489, 490. Also Sec. 22 of the Supreme Court Act.

As stated before, the complaint before us is that the judgment of the learned trial Judge did not reflect the outcome of a consideration of the evidence before him. We pointed out earlier on in this judgment that eight witnesses in all testified for the plaintiffs apart from their surveyor. The land in dispute even according to the defendants consisted of the following villages:- Tedi, Ito-Ogbe Ango, George Village, Ashogun Village, Oshun Village and Imuwo Village. The plaintiffs called Musa George from George Village, Abubu Disu from Ashogun Village, Abudu Karimu from Tedi Village, Mohammed Rabiu from Ito-Ogbe Ango Village, Mumuni Ramonu from Muwo Village and Saka Bale from Oshun Village: all these testified to the effect that they were local heads of the small communities which, like them, occupied their respective villages; that they as well as their progenitors, were put in possession of their holdings by the plaintiffs’ people and that they paid tributes to the plaintiffs and owed allegiance to them. Looking at the plan, Exhibit “B” (produced by the plaintiffs) and the plan, Exhibit “C” (produced by the defendants) these villages are easily found sited along the course of the road to Ajegunle and as comprising the only inhabited oases in what is apparently a wide extent of uninhabited open land. Abudu Karimu was born on Tedi Village land and was about 30 years old when he gave evidence; he had taken over possession of the land from his own father who indeed died on the land. Mohammed Rabiu was an old man and had lived at Ito-Ogbe Ango Village all his life: he was born there. The father of Mumuni Ramonu was the late Head of Muwo Village and Mumuni Ramoni himself was born in the village. Musa George was even older than the plaintiff. Y.A. Lawal himself: he was an old man at the time he gave evidence and he stated that he was the third generation of his lineage to live in that village. He was the present head of the village. Saka Bale, the present Head of Oshun Village, was between 60 and 80 years old at the time he gave evidence and he stated that he was born in the village. Abudu Disu was a farmer also born in Ashogun Village and his evidence concerning the payment of tributes to the plaintiffs’ people is as illuminating as it is devastating to those who tried to negative it. The plaintiffs then called as a witness Gbadamosi Oniba, the Oniba of Iba who is their boundaryman on the north of the land in dispute. The witness stated categorically that “the Olojo has no land on the land in dispute”: this witness stated.

As against this body of evidence the defendants called seven witnesses apart from the defendants himself, Bello Ayilara, the Olojo of Ojo. Gbadamosi Alaka testified that he was a farmer about 50 years old and that he had been “going” to Tedi Village since he was a child. He confirmed that the plaintiffs’ witness, Karimu, was the then Head of Tedi Village. He never even stated that he or his father got their land from the Ojo people. Muritalabi Adamu stated that he lived in another village called Ira (situate on the northern borders of the land in dispute) but often visited Tedi; he did not say that he held his land by leave or licence of the defendant or his people. Also called by the defence was Saka Sule who lived at Ojo; so also was Alhaja Nimota who lived at Lagos but testified that her late father, Alfa Buraimoh got the land on which he settled at Oshun village from the Olojo of Ojo. The defence also called as witnesses Moses Erinle, the contractor who had built the school at Tedi and testified that it was the District Council of Ojo which paid him for his services for the building of the school; and Sanni Oluwo, the Oluwo of Ojo who deposed to the historical account of the settlement of the Irede people on the land in dispute and confirmed the occupation of the eastern portion of the land in dispute by the plaintiffs’ people. Another of the defence witnesses was Sufiano Bale, the Onibassa of Ibassa. The land of the Onibassa is shown as lying to the south-east of the land in dispute in both plans Exhibits “B” and Exhibit “C”. The Onibassa testified to knowing the two parties in the present dispute and stated, inter alia thus:-

“The land of the Ibassa have a common boundary with the land of the Olojo. I know the people of Irede.

The Irede people have boundary with the Olojo. They do not have boundary with Ibassa.”

Under cross-examination he stated thus:-

“The Irede people did not farm on my land, but they surveyed it. They farmed on the Olojo’s land, but I do not know if it was the Olojo who gave them the land.”

Concerning the evidence of Sufiano Bale, The Onibasa of Ibassa, it is enough to point out that this evidence was most improbable. He first stated that it was the Olojo of Ojo who gave the plaintiffs’ people the land on which they farmed at the boundary of his own land with the Olojo but later, under cross-examination, he retracted that and stated that he did not know who gave the Irede people the land which they farmed. We think that by all standards he must be considered an unreliable witness unless there are special circumstances which must be and are indeed spotlighted for holding a contrary view. So with the evidence of the witness. Muritalabi Adamu (D.W.3). In a case of declaration of title to the land, the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both that he is the owner of the land in dispute.

If the evidence of tradition fails and indeed if it is proposed to test the probability of such traditional evidence, recourse must be had to the evidence of actual user and possession of the land in dispute. In the case in hand, the plaintiffs pleaded possession and gave the evidence earlier on set out. They said they originally occupied the land and had been thereon for some 300 years at the time of the institution of the proceedings. They then called a boundaryman and tenants from all inhabited portions of the land in dispute in support of their claims. They proved that by the judgment in Exhibit “E” they were awarded Muwo Village by a court of law in 1900 and that by the judgment in Exhibit ‘G”, they were awarded Muwo Island by the then Supreme Court of Nigeria. (i.e. Suit No. 60/1940) and that by the judgment of the West African Court of Appeal in Exhibit “H” the award to them of Muwo Island was confirmed by that court. The Onibassa of Ibassa, a witness for the defence, confirmed that the plaintiffs’ people are in possession of that portion of the land in dispute on his own boundary, i.e. the South-east. As against all this, the defendant called only one witness, i.e. Gbadamosi Alaka who has a farm at Tedi. Then there was the evidence of long possession as given by Ajimuti in Exhibit “K” and that of Alebiosu in Exhibit ‘L” showing the consistency with which the plaintiffs’ people have always asserted their claims of possession. The learned trial Judge rightly, in our view, made no findings of possession in favour of the defendants but failed, wrongly in our view, to make a finding of possession in favour of the plaintiffs despite the plethora of evidence, indisputable as well as undisputed, manifest on the record. In Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1 All NLR 32 at p. 35, this court observed, in similar circumstances, as follows:-

“Mr. Oputa agreed that Section 145 was against him, and conceded that the onus was on the defendants to prove that the plaintiffs were on the land with the defendant’s permission, but there was no finding in their favour that they were the owners and entitled to turn the plaintiffs out of the land.”

Thus, it is conceded that in this case the primary onus of proof on the plaintiffs has been discharged: they have proved sufficient acts of possession to throw the burden of proof on the defendants under Section 145; they have established a prima facie case that they are the owners which the defendants must rebut if they are to avoid judgment for the plaintiffs. So much on the claim for a declaration of title.”

On this aspect of the case learned counsel for the defendants has submitted that the witnesses for the plaintiffs were not credit-worthy but they were extraordinary witnesses; that the villages over which they claimed to be heads were small inconsequential villages and that the Judge’s right to make findings of fact should not be interfered with. We find it difficult to see the strength in the argument of learned counsel. We do not know why the plaintiffs’ witnesses should be described as extraordinary nor why they should be discredited because they were petty heads of little communities. They were giving evidence of what they knew and saw and must be given the credit of speaking the truth by describing as small those villages which everybody there knew to be small. The defendant had relied strongly on his own evidence to the effect that he had granted permission to build the road to Ajegunle, the maternity hospital at Ojo and the school at Tedi Village. A note from the Divisional Officer admitted in evidence as Exhibit “M” and dated the 7th July, 1954, was also relied upon as confirming his grant of the land to build a road. It is easy to see that the note, Exhibit “M”, does not say what it is being claimed it said. The evidence as to the grants rests only on the ipse dixit of the defendant alone and there is no shred of independent evidence of any such grant. As a matter of fact, the witness Moses Erinle, the contractor stated that he was paid by the District Council at Ojo. There was no evidence forthcoming from the District Council itself. We would have been surprised if any probative value was attached to evidence of such dubious character.

After conceding that the defendants had wrongly claimed both Muwo Village and Imuwo Island (in view of the judgments, Exhibits “E”, “G” and “H” respectively), learned counsel for the defendants had urged us to affirm the judge’s order of dismissal of the plaintiffs’ case but excise from its operation the Island of Imuwo and Muwo Village. We consider this submission strange and novel. We think that to make such an order would be creating a precedent of unparalleled generosity. We are of course unable to accede to it and the ground of appeal covering the weight of evidence must and does succeed as well.

We have come to the conclusion that the complaints before us on appeal are well founded and the appeal must succeed. The appeal succeeds and it is allowed and we make the following orders:-

(i) The judgment of the High Court, Ikeja, (Beckley, J.), in this case i.e. Suit NO. IK/43/61 together with the order for costs is set aside.

(ii) We hereby enter judgment for the plaintiffs, i.e. the people of Irede, for their claims of declaration of title to the land described on their plan, Exhibit A, i.e. Plan No. L & L/C 1947 and dated the 18th December, 1961 drawn by Surveyor, Mr. I.L. Bode Lawson and countersigned by the Surveyor General on the 2nd March, 1962, and coloured pin (or red) thereon and an injunction covering the same land as per the claims of the Plaintiffs on the writ. With respect to the claim for damages for trespass, we award the plaintiffs 25 pounds as general damages.

(iii) We direct that the foregoing shall be the judgment of the court.

(iv) The defendant, i.e. the people of Ojo, are hereby ordered to pay to the plaintiffs, i.e. the people of Irede, costs in this case fixed in this court at 71 guineas and in the court below fixed at 264 guineas.

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SC.109/1970