Supreme Court Ruling On Ido-Osun Vs Timi Of Ede

IDO-ỌSUN IS A CUSTOMARY TENANT OF TIMI – Supreme Court of Nigeria.

IN THE SUPREME COURT OF NIGERIA
HOLDEN AT LAGOS
ON FRIDAY 4TH DECEMBER, 1970
BEFORE THE LORDSHIPS

GEORGE BAPTIST AYỌDỌLA COKER JUSTICE, SUPREME COURT

SIR ROBERT UDO UDOMA JUSTICE, SUPREME COURT

GEORGE SODẸINDE SOWẸMIMỌ AG. JUSTICE, SUPREME COURT.
SC.47/1970

BETWEEN:

ỌBA J. A. LAOYE, TIMI OF ẸDẸ (FOR HIMSELF AND ON BEHALF OF ẸDẸ PEOPLE)… PLAINTIFF/RESPONDENT/APPELLANT

AND

ỌBA BELLO OYEWUSI, ỌBA OF IDDO- OSHUN (FOR HIMSELF AND ON BEHALF OF IDDO- OSHUN PEOPLE… DEFENDANT/APPELLANT/RESPONDENT

JUDGEMENT OF THE COURT
(Delivered by Udo Udoma, J. S. C.)

This is an appeal by the plaintiff, Ọba J. A. Laoye I, the Timi of Ẹdẹ, against the judgement of the western state court of Appeal in which the judgement of Fakayode J. in suit No. 1/132/63 in the High court of western state, Oshogbo, was set aside and a new trial ordered in favour of the defendant Ọba J. A. Oyewusi, the Ọba of Iddo-Ọshun, who had appealed against the said judgement, The defendant has also cross-appealed but only against the order for a new trial.

For the purpose of this appeal, the plaintiff/appeallant in this court in the main appeal and respondent in the cross-appeal and the defendant/respondent in the main appeal and appeallant in the cross-appeal would hereinafter be referred to as the plaintiff and the defendant respectively.

The plaintiff’s claim against the defendant in the High Court reads as follows:-
“(1) A declaration of title to that piece or parcel of land situate, lying and being at (Ẹdẹ town) bounded on the first side by Arungbo or Alawowotan stream, on the second side by Ọffa Town hall on Oshogbo road, on the third side by Ọshun River and on the fourth side by Eyinwona Stream.

(2) Injunction to restrain the defendant, his agents, servants, assigns, and executors from committing further trespass on the land described in paragraph 1 above.

(3) And any other relief that this Honourable Court can afford.”

Pleading were ordered and duly filled and delivered. In the relevant paragraphs of his statement of claim, the plaintiff averred that he is the paramount chief in Ẹdẹ and district and by native law and customs, the owner in possession and trustee for the people of Ẹdẹ and the custodian of all lands in Ẹdẹ and district; that in that capacity, he has brought this action on behalf of himself and the people of Ẹdẹ claiming the land in dispute, comprising “all those pieces or parcels of land” shown verged green on the plan No. AB.1900 filed with the statement of claim; and that the said land has, from time immemorial, been the exclusive property of the plaintiff and his people who have been and are still in continuous and peaceful possession of the same; that the defendant’s predecessors originally settled in Ọwalusẹ, North east of Ilesha before they were conquered by his predecessor, Timi Ajẹnju, who later settled them “at the present site known as Iddo-Ọshun” as customary tenants subject to the payment of ‘Ishakọlẹ’; that in exercise of acts of ownership their predecessors also settled on other lands in Ẹdẹ district other tenants who paid to them ‘Ishakọlẹ’ and who still continue to pay to him ‘Ishakọlẹ’ as their overlord; and that the defendant himself as the village head of Iddo-Ọshun was paying Ishakọlẹ to him until 1960 when he stopped, and since then he has been selling portions of the land in dispute to various people without the knowledge and consent of the plaintiff and despite several warnings.
In answer to these averments, the defendant in his statement of defence, admitted that he has refused to pay Ishakọlẹ to the plaintiff because neither his ancestors before him were nor is he a customary tenant of the plaintiff on the land in dispute; and that he has been selling portions of the land in dispute to several people in the exercise of his right as the sole owner of the same. The defendant further alledged that even though the piece of land verged green in plan No. AB.1900 is in Ẹdẹ district, the same is his bonafide property; that Iddo-Ọshun people were the earliest settlers in Ẹdẹ district – the land in dispute being one of the pieces of land on which they settled, the other being the one verged red on his plan No. GB.4029; that the Ọffatẹdo people as well as Ọkinni people who now occupy portions of the land in dispute were placed thereon by his ancestors to whom they paid Ishakọlẹ which Ishakọlẹ they now pay to him in recognition of his title. The defendant denied that his people, Iddo-Ọshun, were settled at Iddo-Ọshun by the ancestors of the plaintiff. He claimed that all the land shown on the plan No. AB.1900 as the property of the plaintiff is his bonafide property.

When the case proceeded to trial, both the plaintiff and the defendant and their witnesses gave evidence. The learned trial Judge accepted the case of the plaintiff, which he considered more probable and rejected that of the defendant.

He found as a fact that the Ọffatẹdo people whose representative testified before him for the plaintiff were the tenants of the plaintiff under customary law and that they occupy a substantial portion of the land in dispute. He thereupon entered Judgement for the plaintiff with costs and granted him acceleration of title and Injunction.

The defendant appealed to the western state court of Appeal and succeeded. The court of Appeal allowed the appeal, set aside the judgement of the High Court and ordered a new trial at the same time awarding the defendant costs in the High Court as well as costs in the Western State court of Appeal.
The plaintiff has now appealed against that judgement on the following grounds:-

“(1) The court of Appeal erred in sending the case back for retrial when in the findings of fact made by the learned trial Judge there is enough material to ground a declaration of title in favour of the plaintiff.
(2) The court of Appeal misdirected itself in holding that the court of first instance gave Judgement for the plaintiff on the weakness of the case of the defendant when all the learned trial Judge did was to rely on the evidence of the defence which supports the plaintiff’s cases.
(3) The court of Appeal erred in law in awarding the defendant the costs of the trial in the Court bellow when the itself was sent back for retrial.
(4) The Court of Appeal erred in law in treating the following passages in the judgement of the privy Council in Kojo II Vs Bonsie & Anr. 1957. 1 W. L. R. p. 1226, i.e.
“The best way is to test the traditional history by reference to the facts in recent years as established by evidence” ‘as laying it down that the court must consider’ “acts of ownership on either sides”
before grounding a declaration of title on traditional evidence only.
(5) The decision of the Court of Appeal is against the weight of the evidence before the court below.”

In support of these grounds, counsel for the plaintiff submitted that the western state court of Appeal erred in law in setting aside the judgement of the learned trial Judge and ordering a new trial when there was sufficient material from the findings of the learned trial Judge to justify the declaration granted to the plaintiff; tha the western State Court of Appeal was in error in holding that the learned trial Judge had base his judgement in favour of the plaintiff on the weaknesses of the defendant’s case; that the court of Appeal misunderstood and misapplied the principle enunciated in Kojo II Vs, Bonsie & Anr. 1957. 1 W. L. R. p. 1226 by the Privy Council and by the Court of this country in Ekpo Vs Ita. 11 N. L. R. 68.

As already stated at the trial High Court, both the plaintiff and the defendant called the evidence and the bulk of the evidence called related to their respective traditional history and how the land was acquired by their predecessors -in- title as well as acts of ownership. In particular, Ọffatẹdo people whom the defendant claimed to be his customary tenants testified in favour of the plaintiff whom they acknowledged as their overlord to whom they regularly still pay Ishakọlẹ.
In a careful review of the evidence, the learned trial Judge, quite properly and correctly, in our view, directed his mind to the principles of law applicable and upon which a Court must act in decreeing a declaration of title to land and postulated in the well-known cases of J. N. Koddilinye Vs Ebanefo Odu, 2. W. A. C. A. 336; Ntoi Ekpo Eta Ekpo Vs Chief Eta Eta Ita, 11 N. L. R. 68; and Abotcho Eponuglo & Ore. Vs Adja Kadaiya 2 W. A. C. A. 24.
The learned trial Judge, in dealing with the evidence, directed his mind to the burden of proof in a land case in which the plaintiff seeks a declaration of title. For the purpose of determining whether the burden has been discharged, the learned trial Judge referred to a well-known passage in the Judgement in Ekpo Vs Ita at page 69 which reads:
“In a claim for a decree of a declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners if the evidence of tradition is inconclusive, the case must rest on question of fact.”

Analysing the above passage, the learned trial Judge said:
“The principle in Ekpo’s case therefore is that a declaration of title can be based on –
(a) traditional evidence of title that is conclusive or sure or certain; or
(b) acts of ownership positive and numerous and extending over sufficient length of time or both (a) and (b).”

The learned trial Judge then applied this principle to the evidence before him. He considered the evidence of both traditional histories and the exercise of acts of ownership over the land in dispute as given by both the plaintiff and the defendant.
On the second leg of the test, namely, acts of ownership, the learned trial Judge held that he was satisfied that the Ọffatẹdo people have since about 1806 been in effective control, use and enjoyment of a substantial portion of the land in dispute verged green on the plan Ex. E or violet on the plan Ex. T and that the evidence of the acts of of ownership (user) preponderates in favour of the Ọffatẹdo people. He accepted the evidence of the plaintiff and found as a fact that the Ọffatẹdo people were settled as customary tenants on the land in dispute by plaintiff’s predecessor-in-title. On this issue the learned trial Judge said:

” I ACCEPT THE PLAINTIFF’S STORY ON HOW ỌFFATẸDO CAME TO SETTLE ON THE LAND IN DISPUTE BECAUSE HIS STORY SEEMS MORE COHERENT AND MORE PROBABLE THAN THE DEFENDANT’S.”

” He also accepted the evidence of Samuel Adenle, the Ataoja of Oshogbo (10th witness for the defendant ) which he held supports the plaintiff’s case, rather than that of the defendant. He found as a fact that Ọwalusẹ was originally ọwa’s land but was later shared by and between Oshogbo and Ẹdẹ people; that the defendants ancestors shifted from Ọwalusẹ to igbokiti and then to Iddo Ọsun because of war levied in the area by Fulani raiders; that the Alaafin of Ọyọ and the Ọwa of Ilesha had a common boundary and they sent their delegates, in the case of the Alaafin, Timi of Ẹdẹ, and in the case of Ọwa of Ilesha, the Ataoja of Oshogbo, to watch their interest at the boundary; that the common boundary was not erinle stream but Arungbo stream; and that there are important land-marks on the land in dispute in favour of the plaintiff to support his contention that his land extended to Arungbo stream beyond Erinle stream”

“In the view of the learned trial Judge at the early period of Yorùbá history, the ọba of Iddo- Ọshun who was been trouble and chased from place to place by Fulani raiders could not have been sufficiently powerful to have had an independent kingdom situate between the lands of the ọwa of Ilesha and the Alafin of Ọyọ; and finally that the defendant only started about five years ago to sell portions of the land in dispute in defiance of the warnings of the plaintiff, and that that was the cause of the present action”

These findings are amply supported by the evidence which the learned trial Judge accepted. The Ọffatẹdo people in their evidence clearly admitted that they are customary tenants of the plaintiff and that it was the plaintiff’s predecessors-in-title who settled their ancestors on the land in dispute and that they still pay Ishakọlẹ to the plaintiff. On the findings of the learned trial Judge, it is clear that in putting Ọffatẹdo people on the land in dispute as customary tenants, the plaintiff’s predecessors-in-title was exercising an act of ownership over a piece of land of which their people were owners.
The Ọffatẹdo people have been on the land since 1886 undisturbed and since then have been paying Ishakọlẹ to the plaintiff’s predecessors-in-title before the plaintiff and now to the plaintiff.

In the circumstances, it seems obvious that the Western State Court of Appeal was wrong in holding that “the learned trial Judge having set out the approach he intended to adopt in arriving at a decision in the case, deviated seriously when he failed to consider the second leg of the formula he himself set out, that is -(b) acts of ownership on either side”. We are satisfied that the learned trial Judge did not deviate from the approach set out by him nor did he fail to consider the second leg of his formula. On the contrary, the learned trial Judge gave the fullest possible consideration to the exercise of acts of ownership over the land in dispute and came to the conclusion with much justification that the Ọffatẹdo people who are the customary tenants of the plaintiff have since 1886 been, and are still, in effective possession of a substantial portion of the land. Such a finding for the purpose of grounding a decree of declaration of title means in effect that the plaintiff and his people have exercised acts of ownership over the land in dispute extending over a sufficient length of time to warrant the inference that they are exclusive owners. In this respect, acts of user or possession by the Ọffatẹdo people are consistent with the exercise of acts of ownership by the plaintiff, and indeed, are only referable to such exercise since the Ọffatẹdo people were placed on the land as customary tenants by the plaintiff.

With respect, we think the Court of Appeal was also in error and did not adequately direct its mind to the findings and conclusion reached by the learned trial Judge on the issue of traditional history when it held that the learned trial Judge did neither accept nor consider the plaintiff’s traditional history of his predecessor’s acquisition of the land in dispute conclusive as to entitle the plaintiff to a grant of the declaration of title, and that the learned trial Judge did not test such traditional history on the principle laid down in Kojo II Vs Bonsie & Anr. (Supra).

On the face of the proceedings, the learned trial Judge first dealt with the evidence relating to accts of ownership. Thereafter he turned to resolve the conflict which he held existed in the evidence of traditional histories given by the plaintiff and the defendant. In this connection the learned trial Judge said:
Since the acts of ownership (user) on the land in dispute in this case preponderates in favour of the Ọffatẹdo people, I must now weigh the traditional evidence of the parties to this case to find out whether it was the plaintiff’s or defendant’s ancestors who owned the land in dispute.
In assessing the worth of traditional evidence Their lordships of the Privy Council had laid down a given rule in Kojo II Vs Bonsie & Anr. 1957 1 W. L. R. 1223 at page 1226.”

The learned trial Judge thereafter quoted the relevant passage of the judgement of the Privy Council which enunciates the principles for testing the evidence of traditional history in land cases where there is conflict in the stories told by both parties in a case in which a declaration of title to land is sought; the passage quoted by the learned trial Judge ends in part as follows:-
“The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two conflicting stories is the more probable.”

Thereafter the learned trial Judge proceeded to compare and contrast the traditional histories of the plaintiff and of the defendant. He accepted the plaintiff’s traditional history which he found to be corroborated in material particulars by THE EVIDENCE GIVEN BY THE DEFENDANT’S WITNESS, SAMUEL ADENLE (D/W.10) WHOSE EVIDENCE CONTRADICTED THE DEFENDANT’S EVIDENCE ON THE ISSUE.

On this aspect of the evidence the learned trial Judge said:-

“I CANNOT BELIEVE THE STORY THAT THE ỌBA OF IDDO WHO COULD NOT THEN DEFEND HIMSELF AGAINST FULANI RAIDERS WOULD BE ABLE TO GIVE ỌFFATẸDO PEOPLE THE NECESSARY PROTECTION THEY NEEDED FROM THE COMMON ENEMIES – THE FULANI RAIDERS. THE DEFENDANT IN HIS EVIDENCE COULD NOT ADMIT THAT HIS ANCESTORS HAD TO SHIFT FROM ỌWALUSẸ TO IGBOKITI AND THEN TO IDDO-ỌSUN BECAUSE OF THE WAR. HIS WITNESS, HOWEVER, CLEARLY ADMITTED THIS FACT. THE STORY OF D/W. 10 MADE THAT FACT ABUNDANTLY CLEAR.

I accept the plaintiff’s story of how Ọffatẹdo came to settle on the land in dispute because his story seemed more coherent and more probable than defendant’s.”

Having thus accepted the traditional history of the plaintiff, the learned trial Judge was entitled to come to the conclusion that the plaintiff has satisfied what he described as the first part of the principle enunciated in Ekpo Vs. Ita (supra); and we think that even on much finding alone, the plaintiff was entitled to a grant of the declaration of title sought. The learned trial Judge, however, even went further. He found also that the Ọffatẹdo people were since 1886 placed on the land in dispute as customary tenants by the plaintiff’s predecessors-in-title and that they did so in exercise of acts of ownership over the land in dispute, Thus according to the learned trial Judge, all the requirements of the principles established in Ekpo Vs Ita (supra) have been fulfilled and therefore the plaintiff was entitled to judgement and thereupon he entered judgement for the plaintiff accordingly. We think the learned trial Judge was right in this conclusion as there was abundance of evidence to support it. It ought not to have been disturbed by the Western State Court of Appeal.

We turn now to consider the order for a new trial against which both the plaintiff and the defendant have appealed. It is obvious from the conclusion we have reached, that the order was wrong from the conclusion we have reached, that the order was wrong in law and ought not to have been made by the Western State Court of Appeal.

It is of interest to note that before ordering a new trial the Western State Court of Appeal made the following observations:-
“As the defendant/appeallant was not counter-claiming and as the plaintiff/respondent has failed to prove his claim for declaration, the only course open to the learned trial Judge was to have dismissed the case of the plaintiff/respondent”.
And again:-
On the conclusion we have reached in this appeal, it would seem that we ought to allow this appeal and dismiss the plaintiff/respondent’s claim.”

The Western State Court of Appeal, having come to such a conclusion, rather surprisingly decided to order a new trial and to award costs to the defendant. Such an order is inconsistent with the conclusion that the plaintiff had failed to prove his claim. Furthermore, as a matter of practice where a new trial is ordered it is not usual to award costs which had been incurred during the first but ostensibly abortive trial to the party in whose favour the order for a new trial is made the usual order is that the costs of the new trial should abide the event. That being so, we are unable to support both the order for a new trial and the order for costs in favour of the defendant in the court of first instance.

IT FOLLOWS THEREFORE THAT THIS APPEAL SUCCEEDS. THE JUDGEMENT OF THE WESTERN STATE COURT OF APPEAL IN CASE NO. GAW/48/68 IS HEREBY SET ASIDE INCLUDING THE THE ORDER FOR COSTS IN THE HIGH COURT AND IN THE WESTERN STATE COURT OF APPEAL. THE JUDGEMENT AND ORDER OF THE HIGH COURT GRANTING THE PLAINTIFF A DECLARATION OF TITLE TO THE LAND IN DISPUTE AND INJUNCTION IS RESTORED WITH COSTS.
ACCORDINGLY, THE ORDER OF THIS COURT IS THAT THE PLAINTIFF BE AND IS HEREBY GRANTED A DECLARATION OF TITLE TO ALL THAT PIECE OR PARCEL OF LAND, THE SUBJECT MATTER OF ACTION. LYING AND BEING AT ẸDẸ DESCRIBED IN HIS SURVEY PLAN NO. AB.1900 AND THEREIN VERGED GREEN. THE PLAINTIFF IS ALSO GRANTED INJUNCTION TO RESTRAIN THE DEFENDANT, HIS AGENTS, SERVANTS, ASSIGNS AND EXECUTORS FROM COMMITTING FURTHER ACTS OF TRESPASS ON THE SAID LAND. THE ORDER AS TO THE COSTS AWARDED THE PLAINTIFF IN THE HIGH COURT STANDS CONFIRMED AND THIS SHALL BE THE JUDGEMENT OF THE COURT. THE PLAINTIFF IS ALSO AWARDED COSTS OF 50 GUINEAS IN THE COURT OF APPEAL AND OF 71 GUINEAS IN THIS COURT.

SIGNED

JUSTICE G. B. A. COKER
JUSTICE SUPREME COURT

JUSTICE UDO UDOMA
JUSTICE SUPREME COURT

JUSTICE G. S. SOWẸMIMỌ
ATTORNEY GENERAL AND JUSTICE OF SUPREME COURT.