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APRIL 19, 1971

3PLR/1971/12  (CA-WS)











    (For themselves and other members of the Olowofin Family)


Fabunmi for plaintiffs/respondents.

Adegunwa for defendant/appellant.


LAND LAW-Declaration of Title-Acquisition by “Settlement” as a root of title.


The plaintiffs/respondents at an Ibadan High Court (Odunlami, J.) claimed from one Madam Oyatola declaration that:

“the Oluwofin family is the family entitled to receive Ishakole from tenants on farm lands situate at Oke-Oniwo and environs.

  1. Injunction to restrain the defendant from disturbing plaintiffs’ tenants thereon or collecting ishakole from any of the tenants thereon.”


Before hearing commenced at the High Court Madam Oyatola died and the present defendant/appellant Momodu Ajala was substituted for her by an order of the Court.

After the hearing, judgment was given in favour of the plaintiffs/ respondents against the defendant/appellant in terms of the former’s claim. The defendant/appellant who was not satisfied has appealed to this Court on various grounds.

The respondents and appellant will hereinafter in this judgment be referred to as the plaintiffs and defendant respectively.

The brief story of the plaintiffs is that many years ago their ancestor one Oluwofin Ife to settle in a place called Iwofin within the area edged red in Exhibit A the plan tendered by the plaintiffs. Many people went with him and they settled and hunted all over the area in dispute and were paying him tributes.

Later as the result of the Fulani war, Oluwofin and his people went into hiding and on the cessation of hostilities they returned; but only to meet some hunters and farmers including one Iyohunola on the land. These strange people including Iyohunola met on the land were paying tributes to one Idowu the head of the family of the plaintiffs.

Iyohunola and Idowu were later conferred with chieftaincy titles of Ogbomosho and one Ige and Amosun stepped into the shoes of Iyohunola and Idowu respectively, Iyohunola and Idowu having left the land after the conferment of their chieftaincy titles.

When Amosun demanded tribute from Ige he refused to pay and Amosun had to sue him. The plaintiffs tendered Exhibits B, C, D, E, F, G and H, court proceedings to show their exercise of ownership of the land. The plaintiffs called seven witnesses who gave evidence that they were paying tributes on the land to the family of the plaintiffs.

The defendant on the other hand gave his evidence based only on the traditional history as to how his ancestor acquired the land from one Olugbon who put his great grandfather on the land. He said that it was Olugbon that granted land to many persons including the ancestor of the plaintiffs and that the plaintiffs’ land was confined to Iwofin shown at the south west part of the plan Exhibit A tendered by the plaintiffs. That the boundary between his people and the plaintiffs’ family is Asha River between the land in dispute and Iwofin. The defendant had said that what Olugbon gave his ancestor was Ilota.

The defendant called four witnesses who gave evidence of the traditional history of the grant particularly how Olugbon granted land to many other persons.

After the learned judge had considered the evidence before him he gave judgment in favour of the plaintiffs. The defendant who was not satisfied with the decision appealed to this Court under five grounds which we will now consider as set out below:

“(r)    The learned trial judge erred in law in granting a declaration of title to the plaintiffs/respondents in respect of the land in dispute contrary to the claim in the writ of summons.”


It is clear from the writ of summons which reads as follows:

“A declaration that the Oluwofin family is the overlord of and is the family entitled to receive Ishakole from tenants on farmland situate at Oke-Oniwo and environs.,”


that the plaintiffs’ claim is based on declaration of title. The first ground of appeal is in our view misconceived and therefore fails.

“(2)   The learned trial judge erred in law in failing to consider the plaintiffs’/respondents’ lack of root of title or grant over an area already settled by an overlord, but basing his decision on mere acts of adverse possession.”


Mr. Adegunwa argued that because the plaintiffs’ ancestor had no grant of the land in dispute from anybody therefore their title was defective. But the plaintiffs’ case is that the land was acquired by settlement. Joseph Olaniran the second plaintiff in his evidence said inter alia:

“The Oluwofm migrated from He and settled at Iwofin which was then a virgin land. Many people came with him. He settled there and was hunting all over the area now in dispute.”


It is needless to point out that “settlement” is one of the traditional modes of acquisition of land. In our view there is no substance in this ground and it fails.

“(3)   The learned trial judge failed to advert his mind to the defendant/appellant’s plea of adverse possession against the plaintiffs/respondents coupled with the animus revertandi.”


In arguing this ground, which does not appear to be all that intelligible on the face of it, Mr. Adegunwa relied principally on Exhibit J, proceedings in a case between one Oyatola and Laogun predecessors in title of defendant and plaintiffs respectively. In that case Ogbomosho Customary Court of Appeal decided that the late Madam Oyatola the predecessor of the defendant was the owner of Ilota Village.

Mr. Adegunwa argued that the judgment in Exhibit J should act as an estoppel against the plaintiffs. This in our view could not hold. There was no plan tendered in the case so that the only plan that could be relied upon is Exhibit A tendered in the case under consideration before the learned judge.

Para. 2 of the Statement of Claim reads:..

“The land in dispute is the area edged ‘green’ on the plan attached herewith and marked Exhibit A and known as Oke-Oniwo or Ori-Eran.”


In dealing with above paragraph 2 of the Statement of Claim, paragraph 2 of the Statement of Defence reads:

“As to paragraph 2 of the Statement of Claim the Defendant while admitting that the land in dispute is shown on the plan filed by the plaintiffs denies that the land is known as Oke-Oniwo or Ori-Eran, but says that it is universally known as Ahoro Onilota, meaning the ruins of Ilota town.”


But on Exhibit A, the plan tendered in evidence, there is a village in the North East known as Rota Village and it is not within the area in dispute verged green. The 2nd plaintiff, Olaniran, said inter alia in his evidence:

“We claim the whole village in the area verged green in Exhibit A. Ilota area is not in dispute. We own Ilota area.”


Under cross-examination the plaintiff said:

“I am not aware of the fact that the ruins of Ilota are still in Ilota and called Ahoro onilota. There is an Ilota Village. The defendant took action in respect of this village which action is still pending.”


The 8th witness for the plaintiffs, one Alliu Bale Ilota gave evidence. He described himself as the “Bale” Head of Ilota Village. He under cross­-examination said:

“Ilota Village where I am the head villager is not Ahoro Ilota.” When Mr. Adegunwa’s attention was drawn to the above points in the record he agreed that the Ilota litigated upon in respect of which Exhibit J was tendered was the Ilota shown at the North Eastern part of Exhibit A the plan tendered and not within the area in dispute.


From the evidence before the lower Court it is clear that Exhibit J has no evidential value in this case. The basis for Mr. Adegunwa’s argument namely, that the prosecution of the case Exhibit J, shows the intention of the defendant’s family to return to the land after a long absence cannot be sustained.

The failure by the defendant to prove that Ilota Village litigated upon is the same as the area verged green would have put an end to the con­sideration given to this appeal but for part of the defendant’s evidence which requires further consideration. It says in part­

“Momodu Ajala…. …. I know the land in dispute. The boundaries of our land are Asa River, the land of Aresa, the Emir of Ilorin and the Alajase.”

“I know the plaintiffs’ land in Iwofin. Olugbon gave them the land. Their land and our land are separated by Asa River.”


The boundaries of the defendant’s land given by Momodu Ajala show that what he was claiming in Exhibit A was not only Ilota Village in respect of which Exhibit J was tendered; but the whole area edged red in Exhibit A with the exception of the small area near the South West where Iwofin Town is.

It is in the light of the above that we will now consider the remaining two grounds of appeal which are grounds four and five.

“(4)   The learned trial judge erred in law in holding that judgment against a tenant amounts to an estoppel against the landlord notwithstanding the fact that the landlord was not party to that particular proceedings.”

“(5)   The learned trial judge failed to advert his mind to the defendant/appellant’s root of title and traditional evidence of the overlordship of the whole area including the land in dispute and was thereby misled to a wrong decision.”


In Exhibit B Amosun Oluwofin claimed against Ige “Recovery of a portion or parcel of land situated at Oke-Oniwo or Ori-Eran.” The area in dispute in the case now under consideration is the whole of Olce-Oniwo or Ori-Eran. He successfully claimed by Amosun Oluwofin against Ige of a portion of the land in dispute does not necessarily establish the title of the plaintiffs to the whole.

Moreover neither in the plaintiffs’ Statement of Claim nor in their evi­dence before the lower Court do they establish sufficient connections between the defendant and Ige so as to show that Ige was a member of the defendant’s family.

The introduction of Iyobunola, Ige or Alasa in the statement of claim appears at tangent. On the other hand the defendant denies at paragraph 5 of the Statement of Defence that he had anything to do with Ige and that he knew anything about the judgments pleaded.

The part of the defendant’s evidence referred to under cross-examination by the learned trial judge reads:

“My great grandfather Morohundiya put Alasa, Ora, Laleye and others on the land.”


It is not sufficient to bind the defendant by the proceedings in which any of those mentioned above by the defendant under cross-examination was engaged unless the defendant or his family knew or ought to know of such proceedings. In fact the defendant said “I am not aware that Ige was sued in respect of the land.” It was not established that the defendant’s family knew of the proceedings or that they allowed the parties mentioned to represent them.

Moreover the learned judge stated that Alasa otherwise known as Ige is a member of the defendant’s family. There is no evidence in the record to support such a finding.

In respect of Exhibit F the claim is between Amosun Oluwofin and one Ora. The action is in trespass. Trespass is a personal action and it was dealt with as a criminal matter since the defendant in the case was fined. Although the defendant said that Ora was his father’s representative, there is no evidence that defendant’s people knew of the action. The whole proceedings was tendered and Ora’s evidence is to the effect that the land was given to him by Aro-Alasa. In other words he defended the action in his personal capacity. As Exhibit F is a matter between Amosun, Oluwofin and Ora in the latter ‘s private capacity how then could it be rightly held that Ora repre­sented the defendant’s family?

It is our view that although the learned judge correctly stated the law on estoppel, the application of it to the case in so far as Exhibits B and F are concerned is wrong.

Coming to ground five, the learned judge after reviewing the traditional evidence of how the defendant acquired the land said amongst other things: “In so far as the traditional evidence given by the defendant is concerned, if ever it was correct that the land in dispute was given to them by Olugbon which I don’t believe, I am satisfied that they had lost their holdings long ago and took no steps from 1g18 after the epidemic to get it back and the plaintiffs have been exercising rights of ownership on it ever since.”

In view of the above comment by the learned judge it is difficult to appreciate the gravamen of the fifth ground of appeal. It is sufficient to say that it fails.

Before we come to the end of this judgment we feel bound to express our concern at the indiscriminate manner by which proceedings were admitted in evidence at the court of trial in spite of the fact that Courts in the past have viewed the practice with disfavour. We need only refer to the views of the Supreme Court in some of the cases in which the practice had been disapproved.

In Babatunde Jemi Alade v. Lawrani Aborishade (1):

“… this court has stated on numerous occasions which is that evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that. The pleadings in an earlier case may, however, be referred to show what was, in that earlier case, the claim or defence sought to be set up and to point to inconsistency on the part of one party or the other to the latter case. The judgment in an earlier case frequently is used perfectly properly in a later case, the classic instance being, of course, on a plea of Yes judicata, but it can only be used there provided the incidents necessary to support such a plea are fully observed.”


In the appeal before us, the proceedings before the Court of trial occupy 163 pages out of which exhibits tendered B-H occupy pages 6o-163, and the only relevant parts of the proceedings namely, the judgments are very sketchy. The proceedings were neither used for cross-examination nor was reference made to them to know the capacities in which some of the parties sued or were sued. If the latter had been done the learned judge would have discovered that the reference to Ora as having defended the suit in Exhibit F for the defendant’s family was wrong.

In Bello Adeleke v. Benjamin Adewusi (2), Taylor, F.J. as he then was said inter alia at page 39 of the report:

“The proceedings in the High Court, exclusive of the exhibits, occu­pied some 48 pages in the record of appeal, whereas the exhibits occupied the next 172 pages…. I would draw attention to section 34 and sections 48 to 55 of the Evidence Ordinance as showing the conditions under which state­ments, evidence, proceedings and judgments in previous matters and suits are admissible in subsequent suits in the hope that in future this all too frequent practice of tendering parts of proceedings which are of no possible evidential value and in some cases are utterly irrelevant and inadmissible will cease.”


In Omidokun Owonyin v. Omotosho (3), Bairamian, F.J. said at page 3o8 of the report thus:

“In the judgment under appeal Omotosho v. Onitabo (4) begins to be used in the review of the evidence for the plaintiff; both there and later the entire proceedings are used as if they were legal evidence, which, with respect, was a mistake. Evidence given by a witness in another case may be used to impeach his credit if, in the later case, he says something different; but what he said in the earlier case does not become evidence in the later case. And a judgment given in another case can, in appropriate cases, be put in in a later suit, to prevent the re-opening of the same question. One hopes that the indiscriminate introduction of other proceedings into a trial will be discontinued.”


In the appeal before us the only use made of the proceedings has been referred to above and on proper consideration larger parts of the voluminous exhibits ought to have been refused by the learned trial judge. This will no doubt be taken into consideration in the award of costs.

Although we do not dismiss the 4th ground of appeal, it cannot affect the conclusion reached by the learned judge. The plaintiffs adduced evidence of traditional history and that of sufficient acts of ownership. They called a number of witnesses who were tenants paying tributes to them for a number of years. The defendant on the other hand relied principally on traditional evidence of which he said the facts were related to him by his father. He failed to explain how all the tenants called as witnesses acknowledged only the overlordship of the plaintiffs. He however explained the situation as under:

“It is true that the plaintiffs were receiving tributes from tenants on our land but they were doing so fraudulently.”


The learned judge after careful consideration of the whole situation did not believe the defendant and found against him and we are of the view that the finding ought not to be disturbed. We will accordingly dismiss the appeal.

Appeal dismissed.



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