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20TH MARCH, 1967.

SUIT NO. SC 127/1966.

3PLR/1967/7  (SC)














Olu Ayoola, – for the Appellant

HA Lardner (T. Adedure with him) – for the Respondent



LAND LAW – Declaration of title, – Family land – Long possession by family member – Improvement of family land by Member – Whether enough to confer absolute title – Declaration of title – Generally onus on plaintiff – Where land admittedly family land originally, onus on person asserting exclusive right – Traditional evidence – Conflict of – Approach to assessment – Demeanour no guide.



LEWIS, J.S.C. (delivering the judgment of the Court):

This is an appeal by the plaintiff from the decision of Somolu, J., in the Ibadan High Court on the 13th of September, 1965, in which he dismissed with 200 guineas costs the plaintiffs’ claim. The plaintiff in his amended writ of summons claimed:-


‘The plaintiff’s claim against the Defendants jointly and severally is for:


  1. Declaration of title to all that piece or parcel of land lying being and situate at Ogbagba stream extending from Oshogbo Grammar School up to the Railway lines as being Laro family property of Oshogbo.


  1. £200, being general damages for trespass committed by the Defendants entering the said piece of land unlawfully. The trespass commenced about eighteen months ago and instill being continued despite plaintiff’s repeated objections and


  1. Injunction to restrain the defendants, their servants and/or agents from committing further acts of trespass upon the said piece of land.”


The 2nd defendant admitted the plaintiff’s claim and did not contest the suit. During the course of the hearing the plaintiff abandoned his second and third claims for damages for trespass and an injunction so that the case proceeded solely on the claim of a declaration of title against the 1st defendant, hereinafter called in this judgment the defendant.


It was common ground between the parties that the land in dispute originally belonged to the Laro family. It was equally common ground that the defendant had been in occupation of the land since 1934 having continued the possession of his father Oyegbade. The sole question that the learned trial judge had to deter-mine was whether Oyegbade had been granted outright by the family the land in dispute or whether he had been given a limited grant of possession of the family land for farming purposes. The plaintiff gave evidence and called three witnesses to support his claim whilst the defendant alone gave evidence for the defence.


The learned trial judge said in his judgment:-


“In a claim for declaration of title to land, the onus lies on the plaintiff who must succeed on the strength of his own case, and where the defendant has been in possession of the disputed land for a long time before action was taken, the onus to be discharged by the plaintiff becomes greater; even the law presumes that a man who is in possession of land is the owner until the contrary is proved.”


Whilst this Is a correct statement of the law in general it must, however, be modified where the dispute involved what was accepted by both sides as originally family land. Then when a person claims to be exclusively entitled to family property the onus is on him to prove it as was said in Udeakpu Eze v. Samuel lgiliegbe and Five others by Coussey, J.A. at pages 63 when he said.

“As to the appellant’s contention in this Court that there is no community of Nze but that the quarters are each a community and therefore owns land to the exclusion of the people of Nze as a whole, I would say that the onus was upon the defendant to establish that his section or quarter had a title to the land to the exclusion of the Eze community as a whole as set up by the plaintiffs. The learned judge held that he had failed to establish such a title.”


The learned trial judge, therefore, in our view wrongfully put the onus on the plaintiff rather than, as he should have, on the defendant to establish his claim to an exclusive grant.


The learned trial judge further in his judgment said:-


“I prefer the evidence of the defendant, and I accept his testimony that the land was allotted to Oyegbade, and that it had always been in his exclusive pos-session.”


This case, however, was not a case where the defendant was speaking as to his own knowledge of past events but it was based on traditional evidence, in effect the hearsay evidence of his father. It was not, therefore, a case when the learned trial judge said he preferred the evidence of the defendant where the demeanour of the witness was all Important, as Mr. Lardner for the respondent urged us to hold. Lord Denning delivering the opinion of the Privy Council made this clear in Twimahene Adjeibi Kojo 11 v. Opanim Kwadwo Bonsie and another when he said at page 1226: –


Their Lordships notice that the judges in the appeal courts, who were in favour of upholding the decision of the Asantehene’s B Court, did so on two grounds: first that it was a decision of fact depending on the demeanour of the witnesses and almost inviolable on that account: second, that on a review of the evidence it was the correct decision.


So far as the first ground is concerned, their Lordships do not think it was the correct approach to this case. Their Lordships notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or knew of their own knowledge in their own lifetime. The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. 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 two competing histories is the more probable. That Is how both the native courts approached the matter and their Lordships think they were right in so doing.”


As to the acts of exclusive possession relied on the learned trial judge said:-


“If I go by the evidence of the 1st prosecution witness, Lamidi Amao, the defendant has been In exclusive possession of the land in dispute for about 30 years, during which he was building houses on it and selling portions to strangers who themselves were erecting building foundations on it. These were no secret acts at all. The family never challenged his acts on the land.”


The evidence, however, of the defendant, as he rightly said in another part of his judgment was that it was only about 1953 that the defendant began to sell plots of the land in dispute and only about 1954 that he built two houses on the land. We cannot say whether, in fact, the learned trial judge thought in the passage of his judgment which we have just cited that house building had been going on during 30 years rather than the 5 years before the plaintiff began this present action which was, in fad, the case, and when determining acts of ownership this might well have been Important. Moreover, we note that in fad the plan (Exhibit C) tendered by the plaintiffs surveyor showed only one house on the land in dispute and he was never cross-examined as to this. The defendant further relied on the planting of cocoa and kola trees on the land by the defendant’s father Oyegbade but once again there were no kola trees shown on the plan and the surveyor was not cross-examined about this. Furthermore, in any case, improvements of any kind to family land do not cause family property to cease as such to be family property as was said by this court in Shells v. Chief Asajon when Jibowu Ag. F.C.J. said at page 67:-


“Family property does not cease to be so simply because a member of the family has improved k. It was held in Bassey Egbo Bassey v. Archibong Boco Cobham 5 N.L.R. 92, that according to native law and custom, the ad of re-claiming family swamp land does not confer any special property in the land reclaimed on the individual who claimed R, as against the communal title to the family. In a Gold Coast case in which a man built a house on family land and devised the house in his will, Fixon Owoo v. Robert Williams Owoo and others 11 W.A.C.A. 81 it was held that he had only a life interest in the house which upon his death became family property.”


In our judgment, therefore, the learned trial judge should not on the evidence before him have found that the defendant had established his right to exclusive possession of the property in dispute as he had not discharged the onus, which we have Indicated in our view was put upon him of so proving. In our view the plaintiff was entitled to judgment on his claim for a declaration of title. The learned trial judge in his judgment in fact indicated that If he had not accepted the defence story of an exclusive grant then his admitted long possession would have defeated the plaintiff’s claim for a declaration but Mr. Lardner for the respondent conceded that this was not an accurate statement of the law in regard to family property and he conceded that If we were against the main line of argument as to exclusive pos-session, as we have indicated that we are, then the judgment could be sustained by virtue of this alternative finding.


We accordingly allow this appeal, set aside the judgment of the High Court and order that judgment be entered for the plaintiff for his claim as set out in his amended writ of summons for a declaration of title that the land in dispute was Laro family property of Oshogbo.


Appeal allowed.



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