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14TH NOVEMBER, 1969]

SUIT NO. S.C. 50/67

3PLR/1969/16  (SC)








Ayoola – for the Defendant/Appellant

Oloko – for the Plaintiff/Respondent




This case originated in the Ibadan City No. 1 Grade A Customary Court where the plaintiff claimed against the defendant-


(1)     declaration of title to a piece of land at Saforitifa village, Oyo Road, near the University College, Ibadan;


(2)     £150 general damages for trespass committed by the defendant on the said land in June, 1962; and


(3)     injunction restraining the defendant, his servants and/or agents from further trespass on the said land.


After a hearing which ended on 26th July, 1965, the plaintiff’s claim was dismissed. Her appeal to the High Court of Western Nigeria was allowed by Kester (Ag. C.J. as he then was) who thereupon gave judgment for the plaintiff. The defendant has now appealed to this Court against that judgment.


Succinctly stated, the case of the plaintiff before the Grade A Customary Court in this. Her father, one Sangodiya was the owner of Saforitifa village where the land in dispute is situated. He therefore owned the land in dispute as well. In his lifetime Sangodiya cultivated the land and planted cocoa and kola-nut trees there. When he died about fifty years ago, the plaintiff and her mother put the land in dispute in charge of one Sangotola who was a younger brother of the plaintiff’s father. On the death of Sangotola, his son Lajide (2nd d/w) became the caretaker of the land. Until sometime in 1962, the plaintiff had never been disturbed on the land. That year when she went on the land, she noticed three survey pillars had been buried there. On enquiry, she was informed by Lajide, her caretaker, that it was the defendant who had sold some portions of the land to some people. Although the record of appeal showed that the plaintiff admitted that she had sold part of the land in dispute about two years ago (1962) to about 10 persons, it would appear from the plan (exh. ‘B’) which shows all her land including the portion now in dispute that the sale was in respect of part of her remaining land, not the land in dispute. It is also pertinent to point out at this stage that in answer to further questions as to the sale, the plaintiff replied that she had not conveyed any portion of the land in dispute to anybody.


In his own defence, the defendant contended that it was his great grand-father named Amusan who founded Saforitifa village and who settled on the land in dispute without any grant from anybody. After settling on the land, Amusan and his family planted cocoa, kola-nuts and orange trees on the land in dispute. There were also palm trees on the land. According to the traditional history handed down to him (defendant) by his father one Lamidi Amoo, the land in dispute had been in the possession of his family for the past 100 years. Since the death of his father about 15 years ago, he (defendant) had been reaping the cocoa and kola nuts on the land. Seven years ago, he sold part of the land to about six persons and had since sold the rest so that at present he had no more interest in the land in dispute. While the defendant himself testified that the land is at Saforitifa village which is the plaintiff’s village, his witness Lajide Sangotola (2nd d/w) stated as follows:


“Agbega village is the village of the defendant’s ancestor. It is correct the Agbegba village is about an hour’s walk (i.e. 3 miles) from the land in dispute. Saforitifa village is close to the land in dispute; it is nearer it than Agbegba village”.


Although the learned President of the Grade A Customary Court found the defendant to be an unreliable witness, that he made several contradictory statements, and was almost held up for perjury during the course of the proceedings, nevertheless he dismissed the plaintiff’s claim for declaration of title, not on the ground of the improbability of her traditional and other evidence, but on the sole ground that the land in dispute was not “clear and definite”. He also dismissed her claim for trespass and for injunction on the ground that she was not in possession because Lajide Sangotola (2nd d/w) had denied that he was her caretaker on the land at the time of the alleged burying of the survey pillars on the land.


In allowing the appeal, the learned Acting Chief Justice observed as follows-


”The chief complaint is that the President failed to evaluate the facts put before him by the parties.


It is true that the appeal court is always reluctant to differ from a trial judge on a finding of fact but a distinction must be drawn between finding of a fact based on the credibility of witnesses and findings based on an evaluation of evidence which had been accepted. In the latter case a Court of appeal is in a good position to evaluate the evidence as the court of trial, though it will, of course, give weight to the opinion of the trial judge. (see Akinola and others v. 01uwo and others [19621 All N.L.R. Vol. 1, Part 2 page 227).

It is on this basis that I will now proceed to examine the evidence. Taking the issue of declaration of title, there is overwhelming evidence that Saforitifa village which is close to the land in dispute belongs to plaintiff’s family. There is also evidence by Lajide d.w.2 that the land immediately south of the land in dispute was sold by plaintiff’s family and that he d.w.2 was the principal seller of the land. The land in dispute stands between Saforitifa village of the plaintiff’s family, and the land of the family to the southern border of it which was sold by the plaintiff’s family. There is also the accepted fact that Saforitifa village is about 300 yards from the land in dispute and from the plan of exhib-it ‘B’ it forms one continuous land with the land in dispute. The defendant’s family village of Agbegba is admitted by all to be farther from the land in dispute and about 3 miles (an hour’s walk) from it. In this connection the provision of section 45 of the Evidence Act which states that:


‘Acts of possession and enjoyment of land may be evidence of owner-ship or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land’.


It is inconceivable that the plaintiff’s family will own Saforitifa village to the north of the land in dispute and as well as the land immediately below it and not own the land in dispute. The evidence of Mr. Apatira, defendant’s surveyor is that when he went to survey the land in November, 1962 after this action had been filed in court, it was a farmland with no building on it except those immediately to the south of it, i.e. on the land sold by plain-tiff’s family. From the evidence given by the parties and the plans exhibits ‘B’ and ‘D’ the identity of the land in dispute is clear and definite. There is therefore no basis for the President holding otherwise. The isolated fact of the denial by Lajide that neither he nor his late father was a caretaker of the land for plaintiff and her family is not sufficient to hold that the plaintiff failed to prove her possession of the land in view of the other evidence which I have mentioned and which the President failed to consider in his judgment. There is evidence of possession by the plaintiff to support her claim for trespass”.


In the appeal before us, six of the eight grounds of appeal filed were argued. For the defendant/appellant, Mr. Yinka Ayoola submitted that since the plaintiff/respondent had sold part of the land in dispute to various per-sons the area in dispute is no longer clear and definite. He however conceded that the plan of all the plaintiff/respondent’s land (exh. ‘B’) (including the portion m dispute) showed that the portions sold were outside the area shown therein to be in dispute. He further contended that since the issues turned on the credibility of witnesses, the learned Acting Chief Justice, having undertaken a review of the facts of the case, erred in failing to consider, evaluate, and make findings as to the weight of evidence in support of defendant/appellant’s case. He thereupon submitted that partly because of this error in law on the part of the learned Acting Chief Justice and partly because the learned President of the Grade A Customary Court in his judgment confused the whole of plaintiff/respondent’s land in the plan (exh. ‘B’) with the area actually in dispute, the case should be sent back for retrial, particularly as it was clear from the plan exh. B’ that the area in dispute was not entirely surrounded by the rest of plaintiff/respondent’s land. On the issue of trespass and injunction, learned counsel finally submitted that since the plaintiff/respondent claimed to be in possession through her care-taker Lajide (3rd d/w) and Lajide denied either being her caretaker or being in possession, the judgment for both trespass and injunction should not be allowed to stand.


Briefly put, the argument of Mr. Oloko for the plaintiff/respondent is this. The learned Acting Chief Justice based his judgment on inferences drawn from the only admitted evidence, that is, evidence given in support of plain-tiff/respondent’s claim and admissions made by or on behalf of the defendant/appellant. According to this, the plaintiff/respondent owns the land north and south of the land in dispute. Agbegba village which is the village of the defendant/appellant is about three miles from the land in dispute while Saforitifa village the plaintiff/respondent’s village) is very close to it. The portions sold to the plaintiff/respondent, both from her evidence and from that of her surveyor (2nd p/w), were not within the land in dispute but were to the south of it. Moreover, when the plaintiff/respondent went on the land in 1962 thus indicating her possession, she saw three survey pillars buried there.


We are unable to see any merit in any of the grounds of appeal urged upon us. As had been rightly pointed out in his judgment, the Acting Chief Justice was in as good a position as the President of the Grade A Customary Court to evaluate the evidence admitted by that Court. On the issue of title, we entirely agree with his evaluation of the evidence given before the Customary Court and his finding thereon. It must be home in mind that apart from the denial of Lajide (2nd d/w) that he was the plaintiff/respondent’s caretaker on the land in dispute which the learned President appeared to have accepted, the evidence given by both the defendant/appellant and his witnesses was found to be both weak and unreliable. As for the testimony of the plaintiff/respondent that she had sold portions of the land, it is our view, even if the portions allegedly sold had been part of the land in dispute (which they are not), that that evidence is not sufficient to prove a sale of land, whether under customary law or not. Much more is necessary. Thus, in order to transfer an absolute title to land under native law and custom, it is necessary that such a sale should be concluded in the presence of wit-nesses who saw the actual “handing over” of the property; to transfer the legal title under “English Law” a deed of conveyance would need to be executed (see Cole v. Folami 1. F.S.C. 66 and Erinosho v. Tunji Owokoniran (1965) N.M.L.R. 479). Again, as had been pointed out in Alade v. Aborishade (1960) 5 F.S.C. 167 at p. 169:-


“It is a well established principle of native law and custom that family land can now, provided the consents of the proper persons are obtained, be alienated to strangers and such alienation if carried out in the proper way operates to confer upon the alienee the whole of the interest, in the portion of land concerned, of the family to whom it originally belonged. In other words, the alienee gets what may be termed an absolute title to the land.” (our italics).


As there is no evidence that the admitted sale of portions of the land by plaintiff/respondent was “carried out in the proper way” either by the actual handling over of the property in the presence of witnesses or by using non-customary formalities such as a deed of conveyance, the sale had not been proved and the learned Acting Chief Justice was right to have discountenanced it. That being the case, it seems to us that the area in dispute is easily identifiable from the plan (exh. `B’) and is therefore “clear and definite”.


With respect to the issue of trespass and injunction, there is the following testimony of the plaintiff/respondent, which the President of the Grade A Customary Court appeared to have accepted:-


“Before I took this action I saw three surveyor’s pillars on the land, I asked Lajide about them; he said it was one Murana of Agbegba village who sold portion of the land to somebody. I discovered these strange pillars two years ago. The present defendant is the Murana”.


In addition, the defendant/appellant in his own testimony testified as follows:-


“I once instructed a licenced surveyor by name Apatira to survey the land in dispute for me. That was about two years ago. At that time I showed the surveyor the portion I had already sold out of the land”.


To further questions, he answered as follows:-


“Since my father’s death I have not seen p.w.2 in that village (i.e. Saforitifa village), though I visit the land in dispute, almost everyday. I visited the land in dispute even yesterday. I saw a foundation already laid there; saw it there before yesterday.


At the time I took the surveyor to the place to survey it, the foundation had not been laid”.


From the testimony of the plaintiff/respondent, it seems to us, notwithstanding Lajide’s denial as to his being the plaintiff/respondent’s caretaker, that the plaintiff/respondent used to go on the land herself. This, in the circumstances of this case, is evidence of intention to retain possession. There is also the admission of the defendant/appellant, that he had made an unauthorised entry into the land and had shown his surveyor the portion he had already sold. There is one other point. Since the plaintiff/respondent’s village is to the north of the land in dispute and part of her other land is to be south of it, it is not improbable that she will have to pass through the land in dispute whenever she travels from the village to the rest of her land south of the portion now in dispute. As had been pointed out by Lord Guest in Wuta-Ofei v. Mavel Danquah (1961) W.L.R. 1238 (RC) at p. 1243:-

“Their Lordships do not consider that in order to establish possession it is necessary for a claimant to take some active steps in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated there is little which can be done on the land to indicate possession. Moreoever, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession would be sufficient”.


In the instant case, quite apart from the question of whether Lajide (2nd d/w) was the plaintiff/respondent’s caretaker or not, there is the evidence as to the location of the disputed land and the testimony of the plaintiff/respondent that she was not disturbed on the land until 1962 when she herself discovered the three survey pillars inside it. The totality of these pieces of evidence, to our mind, is indicative of possession of the disputed land by the plaintiff/respondent at the material time. Since the defendant/appellant who had no title to it had himself admitted being on the land with a surveyor, apparently without the authority of the plaintiff/respondent, the learned Acting Chief Justice was in order in finding him liable in trespass and also in making the order of injunction.


For these reasons, the appeal from the judgment in Suit I/40A/65 delivered in the Ibadan High Court on 16th August, 1966, fails and it is dismissed with costs to the plaintiff/respondent assessed at 38 guineas.


Appeal dismissed.



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