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11TH APRIL, 1969

SUIT NO. S.C. 355/67

3PLR/1969/28  (SC)














Chief Coker, (with him Kolawole,) – for the Defendant/Appellant

Adeyemi – for the Plaintiffs/Respondents



Coker, J.S.C.:-

The respondents were the plaintiffs in an action instituted by them against the first appellant, then defendant, in the Egba Grade A Customary Court where they claimed as follows:-


“1.     Declaration of title to all that piece or parcel of farmland situate lying and being at Ita-Oshin Aro Abeokuta on the Lagos Road.


  1. £50 damages against the defendant for alleged act of trespass on the land”.


No provisions for filing pleadings are made for customary courts and so the parties gave evidence at the trial in support of their cases. The plaintiffs claimed to be using for and on behalf of the Aro Oguntade family and in the course of the trial produced in evidence a plan of the land claimed by them. The plan was admitted as exhibit ‘A’ and shows an area of some 67 acres. According to the plaintiffs and their witnesses the land in dispute was first settled by one Oguntade Aro a hunter of some fame and the present plain-tiffs who claimed to have descended from him, contended that the first defendant as well as all his people was put on the land by their permission. It was also part of the plaintiffs’ case that the defendant’s ancestor, one Ojo Aroba, was given refuge by their own ancestors when he fled from his original home-stead in Oke Ibarapa after having committed a criminal offence there. It appears that some other defendants were joined in the action but the records are confused as to the precise nature of the application for their joinder. It is sufficient to point out that on the evidence given by and on their behalf they claimed to have always been in possession of the portions of the land in dispute which they occupied in their own right and not by or with the permission of the plaintiffs or their ancestors. A point seemed to have been canvassed at the hearing relating to the procedure that obtained when a hunter like the ancestor of the plaintiffs first discovers farmland; it was said, and the learned trial judge seemed to have accepted it as such, that such a hunter could not become the true owner of the land so discovered by him unless and until he reported his discovery to the District Head or Chief of the area where he came from, and obtained in return for his discovery an express grant of the land from such district head or chief. After hearing the parties, the President of the Customary Court dismissed the claims of the plaintiffs observing thus:-


“It seems to me after reading the above that the hunter who discovered a forest land is obliged to report to the chief of his township for a for-mal grant of the land by the chief to the hunter to conform with the rules of `FIFUN’ or ‘TITO’.


There is no evidence before me that Oguntade Aro reported his find to the Olubara the acknowledged head of Orile Ibara from where he came and there was no evidence of formal grant to Aro by the Olubara to satisfy the rules of ‘TITO’ and `FIFUN……


I dare say that the mere fact that ARO first settled on unidentified portion of the land now known as ARO did not make him an absolute owner of all the land in ARO. The present site of the mental hospital is not part of the land known as ARO even though the hospital is popularly known as ARO mental hospital. I hold that the evidence of the Olubara is indispensable to prove the plaintiffs’ title that his predecessors granted the land to Oguntade ARO after the said Oguntade had discovered the forest and reported the discovery. That in my opinion would have helped the plaintiffs …..


In exhibit ‘A’ tendered by the plaintiffs the area in dispute was edged green approximately 66.97 acres but the evidence before the court was that the whole area edged red is in dispute. This includes the land acquired many years ago by the Railway Corporation…. I find there-fore that the description of the land as to the area and extent does not agree with the plan submitted in evidence …..


I have carefully considered the evidence before me and I hold that the plaintiffs have failed to prove their case to warrant the granting of declaration of title in their favour …..


As regards the second leg of the claim, I find as a fact from the evidence before me that the defendants are in possession of the farmland in dispute at the material time and that the plaintiffs were not in possession…. the onus of proof of possession is on the plaintiffs. I find that the plaintiffs have failed to discharge the onus, the claim for tress-pass is accordingly dismissed”.


Against the judgment of the Customary Court the plaintiffs appealed to the High Court, Abeokuta, and the appeal was heard by Madarikan, J. as he then was. A number of grounds of appeal were argued before him including one, i.e. ground of appeal No. 4, which alleged misdirection by the President of the Customary Court in the comments which he had made with respect to the Olubara of Ibara and the effect of his evidence on the case. The President of the Customary Court had observed that the evidence of the Olubara was indispensable to the success of the plaintiffs’ case and had clearly used the absence of such evidence in deciding dismiss the plaintiffs’ case. On appeal the learned appellate judge took the view, rightly in our judgment, that the comments of the President of the Customary Court in this connection were not justified. Another ground for appeal, i.e. No. 5, argued on behalf of the plaintiffs in the High Court was that the President was in error in taking the view that the area covered by the present Oshin Market is “communal property for which a declaration of title will be refused”. The learned judge on appeal also took the view that that finding of the President of the Customary Court was not supported by the evidence before the court. The learned appellate judge then ruled as follows:


“I am of the opinion that this appeal must succeed on the 4th and 5th additional grounds of appeal. The appeal is hereby allowed and the case is remitted to the lower court for re-trial”.


The appeal to this Court is from that judgment and in substance the contention before us is that having regard to his own findings and conclusions, the appellate judge should have dismissed the appeal and the plaintiffs’ case instead of ordering a re-trial. Learned counsel for the plaintiffs however supported the judgment of the appellate judge and urged us to affirm it.


The matter to be decided on appeal is of a small compass and concerns the propriety of making an order for a re-trial in the instant case. An order for re-trial inevitably implies that one of the parties, usually the plaintiff, is being given another opportunity to relitigate the same matter and certainly before deciding to make such an order we think that an appellate tribunal should satisfy itself that the other party is not thereby being wronged to such an extent that there would be a miscarriage of justice. We do not pro-pose, as the matter had not been fully argued before us, to lay down any hard and fast rule as to the circumstances that would justify the exercise of the power to order a retrial but we must and do point out that an order for a retrial is not appropriate where it is manifest that the plaintiffs’ case has failed in toto and that no irregularity of a substantial nature is apparent on the records or shown to the court.


We have already observed that pleadings are not delivered in the customary court and that all the parties knew of each other’s case was unfolded in the course of the hearing. We have also referred briefly to the evidence given by and on behalf of the plaintiffs. The claims for declaration of title and injunction were grounded on the traditional history of the plaintiffs and their rights to possession of the land. The claim for trespass is undoubtedly based on their being in possession of the land claimed. The plaintiffs had put their traditional history on the basis that a grant of the land was made many years back to their ancestor Oguntade Aro. The President of the Customary Court did not find this proved and he said as much in his judgment. The present respondents who were the appellants before the High Court sought to set aside that finding but it is clear that the learned appellate judge rejected their contention. The issue of possession is less difficult. The plaintiffs clearly failed to prove that they were in possession, mediate or immediate, of the land in dispute and the President of the Customary Court minced no words in saying that the defendants as opposed to the plaintiffs were in possession of the land.


Thus the plaintiffs had failed to prove the two ingredients upon which their claims in this action had been predicated. In a claim for a declaration of title the plaintiff must prove his case; he must show conclusively that he is either in or entitled to the possession of the land as of right and that he is the person in whom the title to the land lay. Trespass is a wrong against possession or the right to possession. Where, as in this case, the claim for trespass is based on possession of the land, no case for damages for trespass is made out unless possession is strictly proved.


We would ourselves wish to advert to another matter which occurred in this case and which clearly supports the contention of learned counsel for the defendants before us that the plaintiffs’ case should have been dismissed. There is the plan of the land described as being claimed by the plaintiffs. It was demonstrated before the President of the Customary Court that parcels of land of no small dimensions had been given away to other persons in circumstances which made it impossible to reclaim them. These parcels of land were admittedly within the land described as being claimed on the plan exhibit ‘A’. Throughout the proceedings no attempt was made by the plaintiffs to amend the plan exhibit A nor indeed was any application made to do so hence the plan used by the plaintiffs in the proceedings must be considered imprecise at the least in that it included lands in respect of which a declaration of title was not sought and if sought could not be obtained, though if that alone was the error it might have been permissible to non-suit as in Amara v. Modekwe (1954) 14 WA.C.A. 580 (see per Coussey, J. A. at pp. 582, 583). These findings were made the subject of complaint before the learned judge on appeal and he, rightly in our view, upheld the findings of the President of the Customary Court. In these circumstances it is manifest that the plaintiffs had failed to satisfy the court:-


(i)      as to the original grant of the land being claimed by them to their ancestor;


(ii)     that they were in exclusive possession of the land in dispute; and


(iii)    that the plan produced by them accurately shows the land in respect of which they sought a declaration of title and the precise limits of such land.


The learned appellate judge gave no reasons whatsoever for ordering a re-trial and although he made such an order we are clearly of the view that he had before him no material which would have entitled him to order a re-trial. The success of the plaintiffs before the learned appellate judge on grounds of appeal Nos. 4 and 5 cannot, ipso facto, entitle the plaintiffs to succeed on the appeal unless they could show as well that the error in law or misdirection alleged by them must have affected the judgment in a way which is crucial to the decision. The matters discussed by us make it abundantly clear that on those findings of the President of the Customary Court that were upheld by the learned appellate judge the plaintiffs had failed to prove their case in toto. In such circumstances the proper order is one of dismissal of their case. See Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336.


This appeal therefore succeeds and it is allowed. The judgment of the High Court, Abeokuta, in appeal No AB/13A/64, including the order for payment of costs by the defendants is hereby set aside. It is ordered that the appeal of the plaintiffs to that court be dismissed with costs and that this should be the order of the court. It is also ordered that as the defendants have succeeded before us in this appeal they will be entitled to costs payable to them by the respondents before us and fixed at 15 guineas in the High Court and 75 guineas in this Court.


Appeal allowed: Judgment of High Court set aside.



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