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F.S.C. 89/1960

15TH JUNE, 1961.



3PLR/1961/29 (FSC)



LIONEL BRETT, AG. C.J.F. (Presided and read the Judgment of the Court)











LAND LAW: Establishment of title by traditional history – whether relative age of claimants and witnesses is relevant – effect of previously unsuccessful regarding land

ETHICS – JUDGE: Effect of improper use of previous records of proceedings on judgment of trial court

PRACTICE AND PROCEDURE – EVIDENCE: Record of previous proceedings – How not to be used by the Trial Court.

PRACTICE AND PROCEDURE – HIGH COURT – EVIDENCE: Hearing de novo – Need for a trial court not to use previous record of proceedings as an appellate court does



  1. Chukwu -for the Appellants.
  2. Agbaje-Williams -for the Respondents.




BRETT, AG. C.J.F. (Delivering the Judgment of the Court):


This is an ap­peal from the decision of the High Court of the Western Region, granting the respondent Salami Adegbite Alli a declaration of title to a piece of land at Ibadan and an injunction, and the point at issue is whether the right to dis­pose off the family lands of the Elepo family belongs to the appellants or to Salami Alli. The litigation between the parties has pursued a somewhat con­fusing course. It began with an action for a declaration of title and an order in the nature of an injunction brought by Tiamiyu Adegbite, otherwise known as Tiamiyu Elepo, and Idowu Akano on behalf of members of the Elepo family against Salami Mogaji Ogunla, Salami Alli Mogaji Elepo (otherwise known as Salami Adegbite Alli and hereinafter called Salami Alli) and Asani Akinrin in the Native Court in Ibadan known as Lands court II. The claim was dismissed both in the court of first instance and in the Na­tive Court of Appeal, and on the 25th August, 1956, an appeal was lodged in the High Court, and received the number 1/39A/56. In September, 1956, Salami Alli on his own account brought a separate action for a declaration of title and an injunction against Tiamiyu Adegbite and Idowu Akano in the Lands Court 11, and on the application of the defendants this action was transferred to the High Court for hearing by an order dated the 19th Oc­tober, 1956. This suit was numbered 1/157/56 in the High Court. The piece of land in issue in 1/157/56 was larger than, and included, the piece of land in issue in I/39A/56.


The case on appeal, I/39A/56, was ordered to be heard de novo under s. 40 (1) (a) of the Native Courts Ordinance and the two suits were consoli­dated for trial and tried in the High court as cross-actions. The claim of Tiamiyu Adegbite and Idowu Akano 1/39/A/56 was dismissed and the claim of Salami Alli in 1/157/56 was upheld. Tiamiyu Adegbite and Idowu Akano thereupon lodged notice of appeal against the judgments in both suits, but omitted a necessary procedural step in respect of I/39A/56, so that their ap­peal in that case had to be struck out and only the appeal in 1/157/56 has been argued.


Six grounds of appeal were filed, of which one, No.5, was abandoned and five were argued. I would rest my decision on the first three grounds, two of which allege misdirection as to the facts and one a misreception of evi­dence. The first misdirection alleged is in the passage of the judgment where the judge said of Salami Alli that “it cannot be disputed, that since his return to Ibadan about seven years ago he has been actively engaged in trying to get back his family land either by way of actions in court or by redeeming pledges.” On his own evidence Salami Alli only instituted one action in court before the present proceedings and only redeemed one pledge. The action, which was brought against two tenants of the present appellants, was dismis­sed by the High Court, and the judgment was produced as Exhibit D in the present proceedings. It was the sale of the land redeemed from pledge that led the appellants to institute the proceedings in 1/39A/56. Even Mr. Ag­baje-Williams had to agree that the words used exaggerated the activity shown by Salami Alli and I agree with Mr. Chukura that they constituted a misdirection of substance.


The Judge correctly stated that the evidence given in proof of owner­ship or root of title was traditional on both sides, but the appellants complain that he went on to say that because the first two defendants (in I/39A/56) were older than the plaintiffs they were in a better position to know the fam­ily history. In fact the evidence of the first defendant, Salami Mogaji Ogunla, is of little value as traditional evidence, and derives no additional weight from his age, since he admitted in cross-examination that his first knowledge of the facts to which he testified was obtained from a neighbour (who was not called) after the present proceedings were instituted. Mr. Ag­baje-Williams concedes this and relies on the evidence of another witness, Yesufu Latunji, as confirming Salami Alli’s claim. As to that, Yesufu Latunji’s evidence conflicts with Salami Alli’s on the question whether Salami Alli was ever made Bale, and like a number of the other witnesses he gave evidence in the Native Court which was in some respects inconsistent with his evidence in the High Court.


A certified copy of the proceedings in the Native Court was produced in evidence as Exhibit C, and counsel on both sides made a perfectly proper use of it in cross-examining the opposing witnesses on the discrepancies in their evidence in the two courts. The Judge went further, however, and in two passages in his judgment referred to evidence given in the Native Court as re-enforcing the evidence given for the respondent in the High Court. We have frequently pointed out in this court that this is not ordinarily a permis­sible use to make of evidence given in other proceedings and I agree with Mr. Chukura’s submission that there was a clear misreception of evidence.


It is immaterial that in 1/39A/56 the judge was exercising appellate juris­diction. If the High Court is hearing a case de novo it is bound by the ordi­nary rules of evidence and cannot make use of the record of proceedings in the lower court in the way in which this court does in the course of an appeal by way of rehearing on the basis of evidence adduced below. Nothing in the judgment in Lateju v. Iyanda (1959) 4 F.S.C. 257 from which Mr. Agbaje­ Williams cited, implies the contrary.


I would regard these matters of objection cumulatively as requiring that the judgment should be set aside and the only question that remains is whether we should order a retrial, and so give the respondent another chance of proving his case. It is no doubt unsatisfactory that the parties should be left in a position of stalemate, as will happen if both claims for a declaration stand dismissed, but before suit 1/157/56 was instituted Salami Alli had already made one unsuccessful attempt to establish his rights over the family land of the Elepo family, in the proceedings in which the judg­ment was produced as Exhibit. I do not consider that justice requires that he should be given a third chance and in allowing the present appeal I would merely set aside the judgment so far as it relates to suit 1/157/56 and enter judgment for the defendants in that case.


As regards costs in the court below I would substitute an order that both parties should bear their own costs for the order made by that court. Salami Alli should pay the appellants their costs of this appeal, which I would assess at 35 guineas.


UNSWORTH, F.J.: I concur.


TAYLOR, F.J.: I concur.


Appeal Allowed.



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