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SUIT NO. SC 17/1984

19TH APRIL, 1985

3PLR/1985/7  (SC)


(1985) 1 NWLR (Pt.3) 484











OGUNSOLA AJADI (For himself and on behalf of OLOKE FAMILY)



ALHAJI LADUNNI OKENIHUN (For himself and on behalf of other members of IBAYINBUNMI Section of AGO FAMILY)


Alhaji Y.A Agbaje – for Respondents



Land Law – Claim for declaration of title – Land in dispute previously conveyed by plaintiff to third party but plaintiff never divested of title since conveyance _ later declared null and void at instance of present defendants – Competence of plaintiff to institute proceedings.

Practice and Procedure – Misdirection – Customary Court’s findings that plaintiff’s acts of ownership proved – Reversal by High Court based on misconception (due to similarity of names) that both parties relied on acts of ownership of one and same person, a defence witness – Miscarriage of justice – Appeal on question of facts – Duty of appellate Court in such circumstances.



KARIBI-WHYTE, J.S.C. (Delivering the Lead Judgment):

The litigation between the parties in this case can in any sense be aptly described as protracted. The issue litigated in all the actions Instituted has been with the singular aim of establishing title to the piece of land at Oniponri stream via Oke-Oluokun, Ibadan. The following cases have been fought between the parties – Suit No. 25/59 Rail Ajani & Oyedele family vs. Sadiku Akano Ogunsola Ajani, Suit No. 44/59 Raji Ajani & Oyedele family vs. Sadiku Akano Ogunsola Ajani, Suit No. 1/28/71 Ogunsola .Nani vs. 1. Ladunni Ayoka Oyedele, 2. Wuraola Alan, 3. Morenikeji Adisa, 4. Chief E. A. Adeyemo, Suit No. 1/257/72 parties as in Suit No. 1/28/71.

Litigation started in a suit in 1959 by the respondents from the Grade A Customary Court, Ibadan. The respondents got judgment. At the instance of appellants there was an action in the High Court at Ibadan. Appellants got judgment. The first chapter terminated there. The next phase in which we now are also started in 1973 in Suit No. CV/67/73 in the Grade A Customary Court, Ibadan, again at the instance of the respondents.

This is an appeal against the judgment of the Court of Appeal Division at Ibadan and delivered on the 24th May, 1983. The action was commenced by the respondents in the Ibadan City No. 1, Grade A, Customary Court, in 1973 and the claim was for –

(i)      A declaration of title to that piece or parcel of land at Oniponri Stream via Oke-Oluokun, Ibadan.

(ii)     Injunction restraining the defendant his agents, servants or anybody claiming through him from further trespassing on the land in dispute.

There was a claim in the alternative which was formulated as follows –

‘The plaintiff claims against the defendant a declaration that all that piece or parcel of land situate and being at Oniponri Stream via Oke-Oluokun, Ibadan belonged originally to Ago and that the plaintiff has a right to alienate, sell or otherwise deal with the said parcel of land as owner by reason of inheritance through Ibayin to whom Ago granted it.”

the appellant counter-claimed in the toliowing terms –

(a)     Declaration of title to the piece or parcel of land situate and being at Oniponri and Elere Stream at Odo Oba, Ibadan bounded on one side by Oloya family, on the second side by Ikuogbalo, on the third side by Odeniyi family and the fourth side by Oniponri and Elere Stream.

(b)     Perpetual injunction restraining the plaintiff and his agents, servants or persons claiming through him from further trespass on the land in dispute.

In all these litigation the claim and counterclaim have been in respect of title to the piece of land situate and being at Oniponri and Elere Stream at Odo Oba, the boundaries of which are defined and are not in dispute, and perpetual injunction restraining the other from further trespass on the land in dispute. Judgment was in favour of the respondents in the Grade A Customary Court. This judgment was reversed on appeal to the High Court by the appellants. Respondents’ appeal against the judgment of the High Court to the Court of Appeal was allowed. Appellants’ appeal to this court is against that judgment.

Although the facts of this case are not stricto sensu germane to the determination of the issues canvassed in the grounds of appeal filed and argued; they are, I think, of some assistance In elucidation of some of the issues that call for consideration. Appellant claims to be counter-claiming and defending the claims for himself and on behalf of the Oloke family. Whilst respondent, who was plaintiff in this action, sued for herself and on behalf of other members of the lbayinbunmi section of Ago family. Each of the parties traced his root of title to original settlement by an ancestor and not by grant from anybody. It is more convenient to begin with the claim of the plaintiff/respondent.

Plaintiff/respondent claimed that the land in dispute originally belonged to Ago by settlement. Ago was the maternal great grand-father of plaintiff. Ago gave the land including the land in dispute to his daughter, Ibayinbunmi. Ibayinbunmi is the mother of Ibikunle who is the father of the plaintiff. The piece of land has been farmed by all these named, who also have exercised acts of ownership by putting tenants thereon. Plaintiffs’ father, Ibikunle, was succeeded by his brother Raji. Babasango Okeleye and his son Oladejo were tenants of the plaintiffs on the land. Plaintiff also gave evidence of how Babatunde a member of the defendants’ family was granted temporary use of the land in dispute, but died before he could harvest his crops. There was also evidence that the first action in 1959 was a result of the dispute about claims to the land by the relations of Babatunde who entered to harvest the crops. This also led to the action by the appellants in 1973, setting aside the conveyance between plaintiffs and another in respect of the land in dispute.

In their own defence to the action brought by the plaintiffs/ respondents, the defendants/ appellants also claimed ownership of the land In dispute, and traced their root of title to one Oyadeyl, described as a hunter and warrior, who first settled in the area. Defendants/appellants claimed to be descendants of Oyadeyi through Agberu one of Oyadeyi’s children. Okekegan, Okesanmi, Okedoyin and Ojo Sadiku, were successors at one time or the other before the defendants/appellants. It was during Sadiku’s time that Odebunmi was placed on the land as tenant to farm the land. After Odebunmi, his son Oladejo Akano continued to take care of the land and also farm on the land. It is defendants/appellants’ case that Oladejo Akano gave portions of the land to some Igbirra men to farm upon.

The first action brought by plaintiffs/respondents in respect of this land was to establish their title. It was Suit No 44/59 brought against Sadiku, the Mogaji of defendant/appellant’s family by Raji Alani and Bello Adediran in separate actions. They got judgment against Sadiku. Chief E. A. Adeyemo, who tried these actions in the Customary Court, subsequently bought a portion of the land in dispute from the Oyedele family which is the wider group of plaintiff/respondent’s family. Suit No. 1/25/72, was commenced in the High Court by appellants/defendants and was successful to set aside the judgment in Suit No. 44/59, and also the conveyance to Chief E. A. Adeyemo. This last mentioned action was the immediate predecessor of the present action already described above.

In their briefs of arguments filed and relied upon by counsel in this appeal, considerable effort has been made to trace the history of this litigation and to discuss in sufficient detail the proceedings and judgments of the court below. However, the only issues argued before us are those supported by the grounds of appeal filed challenging the judgment of the Court of Appeal delivered on the 24th May, 1983. In the judgment of the Court of Appeal, allowing the appeal by the respondents against the judgment of the appellate High Court setting aside the judgment of the trial Chief President of the Grade A Customary Court, Ibadan, it was held as follows-

“ ….. the learned Chief Judge having proceeded from the wrong premises that both sides relied on the acts of ownership of Oladejo Akano whose presence on the land was denied by the plaintiff, relied almost entirely on exhibit C1, evidence given in another matter by the Oladejo Akano referred to by the defendant and was bound to come to a wrong decision as he did. He also misunderstood the plaintiff’s case when he said that Oladejo Akano, son of Odebunml, washer tenant and he on that point also came to a wrong decision.” (See p. 171 lines 20 – 29).

The Court of Appeal also rejected the view of the appellate High Court on the requisite proof in an action for declaration of title under customary law. The learned Chief Judge in holding that respondents/plaintiffs failed to prove their title to the land in dispute had said –

“But a plaintiff who is claiming title under customary law must prove exclusive possession in the absence of proof of conclusive traditional evidence of title. The plaintiff had failed to prove either of these two things and her claim must be dismissed and is hereby dismissed.”

The Court of Appeal observed that the learned Chief Judge had earlier stated the law correctly but held that the quotation above did not represent the correct legal position; it was then said –

‘The point has been settled by Idundun & Ors. v. Okumagba & Ors. (1976) 10 S.C. 227 which gives five different ways of proving a case of title to land by traditional evidence, production of document of title, acts of ownership, long possession and possession of adjacent or connected land. The learned Chief Judge overlooked the point that proof of acts of ownership can of itself suffice – The Olulebu of Ilebu v. Oso, the Eleda of Eda (1972) 5 S.C. 143 (151), not to talk of the other ways mentioned in Idundun’s case.”

After considering the other grounds of appeal argued, the Court of Appeal concluded as follows –

“On the overall view of the case, I am satisfied that if the learned Chief Judge had not wrongly taken the parties to be referring to the same Oladejo Akano, his conclusion could have been different. The evidence is more in favour of the plaintiff than the defendant and since in a civil case the plaintiff succeeds on the preponderance of evidence the judgment of the learned Chief President should not have been disturbed.”

The appellant has filed three grounds of appeal against this judgment. Counsel for the appellant abandoned ground 2, which was accordingly struck out. The grounds of appeal are as follows –

Grounds of Appeal:

  1. The Federal Court of Appeal misdirected itself in law when it held as follows

(i)      “On the Awo grounds, the decision of the learned Chief Judge has occasioned a miscarriage of justice and the appeal must succeed on those grounds.”

(ii)     “On the overall view of the case, I am satisfied that if the learned Chief Judge had not wrongly taken the parties to be referring to the same Oladejo Akano, his conclusion could have been different.”

Particulars of (1) and (ii)

(a)     The misdirection (if any) did not occasion a miscarriage of justice.

(b)     There was other evidence of acts of ownership and possession by the appellant which would justify the judgment of the learned Chief Judge even if the finding is reversed.

  1. The Federal Court of Appeal erred in law as to the burden of proof on the respondent as plaintiff in this case when it held as follows: –

“……But when he held as quoted above, I found myself unable to agree with him…. The learned Chief Judge overlooked the point that proof of acts of ownership can Itself suffice, – See The Oluiebu of IJebu v. Oso, the Eleda of Eda (1972) 5 S.C. 1431151, not to talk of the other ways mentioned in ldundun’s case” (Page 11, line 22 – 25 to page 12 line t – 7).


(a)     In case in hand, parties relied on traditional evidence as well as acts of ownership in proof of their title.

(b)     The learned Chief Judge correctly stated the law on the burden of proof on the plaintiff.

  1. The Federal Court of Appeal erred in law in allowing the appeal of the respondent when even going by his (sic) statement of claim, the respondent had divested himself (sic) of title in the land to Chief E. A. Adeyemo by exhibit A.

Counsel for the appellants, in his brief and in oral argument before us, argued two of the three grounds of appeal. Ground 2 was withdrawn during argument and was accordingly struck out. Counsel for the appellant and for the respondent have variously formulated the legal issues for determination in the appeal before us. At P. 5 of appellants’ brief of argument, the questions for determination were formulated as follows –

Questions for Determination

(1)     Where a court of appeal sitting over the judgment of the lower court had misdirected itself on certain Issues of law or fact is the matter not at large so as to oblige the court of appeal to consider and appraise the evidence afresh (subject to the constraint as to the credibility of witnesses) so as to determine whether or not the misdirection occasioned a miscarriage of justice or that it led to a wrong decision?

(2)     Where a vendor divest (sic) of his title to landed property to a purchaser through a conveyance, it is possible for the purchaser to release the property back to the vendor otherwise than by a reconveyance?

(3)     Is a document made renouncing one’s interest in landed property sold to him by a conveyance valid to return the legal estate in the property back to the original owner?

Similarly, the respondent In his brief at p. 6.

Statement of Legal Issues

The questions which my Lords will decide are:

  1. Whether the learned Justices of the Federal Court of Appeal erred in law In reversing the decision of the learned trial (sic) Judge which was not based on proper evaluation of evidence but on erroneous view of the evidence and thereby came to a wrong conclusion.
  2. Whether their Lordships erred in law in restoring the judgment of the learned Chief Judge (sic) who had unquestionably evaluated the evidence …. and came to a right decision when the findings of fact made by the learned Chief President have not been disturbed.

Considered within the context and purview of the grounds of appeal filed, the issues for determination can be formulated as follows –

  1. Was the Court of Appeal in error in reversing the judgment of the learned appellate judge who reversed the judgment of the Chief President of the Customary Court holding that appellants and not respondents are the owners of the land in dispute on the grounds that both sides relied on the acts of ownership of Oladejo Akano who is now dead, when it was clear from the evidence that the learned appellate Chief Judge founded his conclusion on a mistaken view of the evidence before him.
  2. Can a vendor who has divested himself of title to property maintain an action for declaration in respect for such property.
  3. Can a purchaser of a legal estate by means of a conveyance return the legal estate to his vendor by a mere declaration that he has done so.

I think these three questions, if answered, adequately cover the issues raised in the grounds of appeal argued before us. I have included the third question which arose after leave of this Court was granted counsel for the appellant to argue ground 3 of the grounds of appeal. Otherwise, it was a point of law admittedly canvassed only in the customary court, but was abandoned on appeal in the High Court, and leave was refused appellant in the Court of Appeal to argue the point. It seems to me that the appellant abandoned this point of law in the High Court, where it could have constituted a ground of appeal, and in the Court of Appeal indicated his intention to raise it so late that the court refused leave.

The judgment before this Court is that of the Court of Appeal. Consequently only issues argued, examined and pronounced upon by that court are the subject matter of appeal before this court. It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the appeal court to enquire into disputes, but to inquire into ways the disputes have been tried and settled – See Zaria v Maituwo (1966) N.M.L.R. 59; Oroke v Edet (1964) N.M.L.R. 118. Furthermore, it is of the essence of the appellate structure in our legal system that the appeal court should have the benefit of the deliberation on the issue before it by the court below. Where this is not the case, and the issue was not put before that court, the issue will not also be considered by the appeal court -Adisa & anor. v. Soleh Boneh (Nigeria) Ltd. (1975) 1 N.M.LR. 364.

I shall now turn to a consideration of ground. 3 of the grounds of appeal, the net effect of which is that plaintiff/respondent having been divested of the title in the land in dispute cannot bring any action for declaration in respect of such land. Counsel for the appellant has relied on exhibit B, which was a conveyance by plaintiff and other members of the Oyedele family of the land in dispute to Chief E. A. Adeyemo. The conveyance is not denied by the plaintiffs/respondents. It was however contended that exhibit A, which is a declaration by Chief Adeyemo, that he no longer had any interest in the land, and that he was returning it to the plaintiffs/respondents, had divested the title from him and vested it to the vendors. It was contended by the appellants that exhibit A to be effective as a release of the land must be by deed, since it was a declaration of an interest in land. Section 77(1) of the Property and Conveyancing Law, Cap. 99 of Oyo State was cited in support.

Without first tracing the history of decisions on the proposition, it is sufficient in this appeal to refer to the recent judgment of this Court in Sanyaolu v. Coker (1983) 3 S.C. 124 where an identical question was posed and answered by Aniagolu, J.S.C. at p. 159 – 160. It was said –

“I now turn to the second complaint, namely whether the Cokers had any interest left (alter they had sold and conveyed to Alatishe) upon which they could maintain an action for a declaration of title and possession, without a reconveyance to them.”

In answering this question the following guidelines were offered, namely: whilst the principle that a person cannot claim a declaration of title to land which he once owned but which he had divested himself of the ownership of, by sale to a purchaser, each case must be examined against its own peculiar facts regard being had

(i)      to the parties In the case

(ii)     the points which were raised and argued; and (iii)the findings of the trial court.

In this appeal the ground on which appellants are relying for their contention is the judgment of the High Court, Ibadan, Suit No. 1/257/72, delivered on the 25th June, 1973. Similarly as in Coker v. Sanyaolu (supra) can respondents after the execution of exhibit B maintain an action for declaration of title. Applying the above test to this judgment, it will be seen that apart from the fact that the parties are not the same, the points which were raised and argued in that case did not concern title of the plaintiffs either in that or In this case, and the findings of the teamed trial judge did not divest any of the parties of title – not being an Issue before him. The case was between Ogunsola Ajadi, the present appellant, as plaintiff, and 1. Ladunni Ayoka Oyedele 2. Wuraola Atari 3. Morenikell Adisa 4. Chief E. A Adeyemo. The action was in the personal capacity of the parties, and the claim against the defendants jointly and severally is –

(i)      Declaration that the decision contained In the judgment dated 9th November, 1959 delivered by the 4th defendant sitting as President of the Ibadan No. 3, Grade B Customary Court in Suit No. 44/59 Rail Ajani (now deceased) and Oyedele family vs. (1) Sadiku Akano (2) Ogunsola Ajadl is void on the grounds of bad faith collusion and real likelihood of bias.

(ii)     A declaration that the deed of conveyance of the land subject matter of the said suit No. 44159 dated 15th October, 1965, made by the first three defendants (and Rail Ajani now deceased), following the said judgment, in favour of the 4th defendant and registered as No. 13 at Page 13 in volume 883 of the Register of Deeds kept at Ibadan is fixed with fraud and bad faith and (sic) as a result of the collusion and bias herein before alleged and is therefore void.

(iii)    £1,000 (N2,000) damages against the 4th defendant for use and occupation of the land comprised in the said conveyance from 15th October, 1965.

The third claim for damages was dismissed because as the learned judge pointed out they cannot exact damages “upon the ground that they had been expropriated as a result of the judgment in suit 44159 (declared null and void in this action) without joining fresh issues as to title.” The action relied upon did not involve any issue of title and no declaration as to title arose from that action. It is however important to observe that the second claim which was made and was granted nullifies exhibit B, which is now relied upon by the appellants as divesting the plaintiffs/respondents of their title in the land in dispute. There is no doubt that the effect of the declaration was to nullify the deed of conveyance, Exhibit B, and consequently the plaintiffs (their admission of the conveyance notwithstanding) have never been stripped even momentarily of any legal estate or proprietary interest they have in the land.

Accordingly, since Chief EA. Adeyemo never had any legal estate vested in him by virtue of exhibit B, exhibit A which is a mere statement of intention, as contended by respondents, and I agree, cannot fall within the definition of a conveyance in s.2(1) of the Conveyancing and Property Law, Cap. 99 Laws of Oyo State. This is because Chief Adeyemo had no interest legal or equitable arising from the transaction for him to release. I therefore do not consider it necessary to answer the third question posed which in this appeal does not arise. This ground of appeal therefore fails and is dismissed.

Ground 1 falls within the first formulation of matters for determination. Counsel for the appellant conceded both in his brief and in his oral argument before us that the learned appellate Chief Judge misdirected himself when he held that both the appellant and the respondent relied on the acts of Oladejo Akano. He however contended that the misdirection did not lead to a miscarriage of justice. Counsel, correctly, pointed out that the duty of the appellate court is to consider whether the decision of the judge is right and not whether his reasons were Ukejianya v. Uchendu 13 W.A.C.A. 45 at p. 46 was cited.

I think the Court of Appeal was right, when in their judgment they observed that the learned Chief Judge misunderstood the case of the plaintiffs. Indeed, as counsel for the appellant submitted, it was in the process of going over the entire record that the Court of Appeal discovered the error. As was pointed out in the brief of counsel for the respondents at p. 7,

The plaintiff’s case is that his family put one Babasango Okeleye on the land and after his death Oladejo his son stepped into his father’s shoes. Okeleye made use of the land for 1 year while his son made use of the land for 25 years (see page 69 lines 11 – 16). The defendant’s case was that, during the lifetime of Sadiku one Oladejo Akano was farming on the land in dispute through his father Odebunmi. When Sadiku left the land he handed over the land in dispute to the management of Oladejo …. after the death of Odebunmi Oladejo stepped into the shoes of his father. (see page 77 lines 12 – 19). He concluded at page 78 lines 22 – 23 ‘Oladejo Akano farmed on the land for 8 years’.”

It is clear from the evidence reproduced that both parties had Oladejo. Whereas the Oladejo of the plaintiffs is the son of Babasango, who stepped into his father’s shoes as a tenant on the land in dispute and remained there for 25 years, defendants’ Oladejo is the son of Odebunmi. Sadiku handed over management of the land to Oladejo after the death of Odebunmi. Oladejo farmed the land for 8 years. The distinction between the two Oladejos, is clear. The Oladejos were relied upon by each side for the exercise of acts of ownership. It is the inability to keep this distinction that led the trial Chief Judge to come to the extraordinary concluslon that the plaintiffs and defendants were relying on acts of ownership through the same person, Oladejo Akano. It is difficult to see how this inability to make the distinction cannot lead to an erroneous conclusion. Apart from the fact that this is a question of primary finding of fact, which is the province of the trial Chief President, who had already made specific finding on the issue, (see Balogun & ors. v. Agboola (1974) 1 All N.L.R. (Pt.2) 179). The learned Chief Judge gave no reasons why he made any findings on the issue at all. It would seem to me that he was trying to substitute his own views and negative the exercise of the acts of ownership already found as a fact by the trial court. (see Ogbero Egri v Ededho Uperf (1974) 1 N.M.L.R. 212). There is scarcely any doubt that if the Chief Judge had not adopted the view of unifying the two Oladejos into one Oladejo Akano, the defendants’ witness, his conclusion was most likely to have been different. In this case it is unnecessary for this court to make any further finding of fact on the issue, in the light of the clear-finding of the trial Chief President and the Court of Appeal. It is only where the necessary finding has not been made and there is evidence of the record, can the appeal court make its own findings. – See Fatoyinbo v. Williams (1956) 1 F.S.C. 87, Akibu v. Opaleye (1974) 1 All N.LR. (pt. 1) p. 357. Besides, the court of appeal will only interfere with a finding of fact where it is satisfied on the evidence before it that the finding is wrong, and could not ordinarily have been based on the evidence – see Onowan & anor. v. Iserhein (1976) 11 N.M.LR. 263. The Court of Appeal was therefore right in rejecting and reversing the finding of the appellate High Court on the issue, since such a finding could not have been made on the evidence before him in the light of the faultless finding of the trial Chief President.

This court now armed with the findings of fact of two lower courts on the same issue which have not been faulted by the appellant will not normally reopen the issue. See Kodilinye v. Anatogu (1953) 11 W.L.R. 231, Dawodu v. Danmole (1962) 1 All N.L.R. 902. I am of the opinion that the finding should not be disturbed. – See Allie & ors. v. Alhadi (1952) 13 W.A.C.A. 320, Ross v. Associated Portland Cement Manufacturers Ltd. (1964) 1 W.L.R. 768. It has also not been suggested that the findings of fact will lead to a miscarriage of justice – See Adansi v. Stool of Brenase (1957) 2 W.A. L.R. 57, and Kojo 11 v. Bonsie (1957) 1 W.L.R. 1223.

The ground of appeal also fails and is dismissed. All the grounds of appeal argued having failed, the appeal is therefore hereby dismissed. Appellant shall pay to the respondents costs of this appeal assessed at N300.00.

BELLO, J.S.C.: I had a preview of the judgment of my learned brother, Karibi-Whyte J.S.C. For the reasons stated by him, I would also dismiss the appeal, affirm the decision of the Court of Appeal restoring the judgment of the trial Chief President of the Customary Court and award N300 costs to the respondents.

ESO, J.S.C.: I have had the privilege of a preview of the judgment just delivered by my learned brother Karibi-Whyte J.S.C. I agree entirely with the reasoning and conclusion. I also dismiss the appeal and I agree with all the consequential orders made by my brother Karibi-Whyte, J.S.C.

COKER, J.S.C.: I entirely agree with the judgment just delivered by my brother Justice Karibi-Whyte, the draft of which I have had the advantage of reading. I agree with his reasoning and the conclusion.

KAWU, J.S.C.: I had the advantage of a preview of the judgment which has just been read by my learned brother, Karibi- Whyte, J.S.C. and I am in complete agreement with the reasoning and contusions therein. 1, too, will dismiss the appeal with N300.00 costs awarded to the respondents.

Appeal dismissed.


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