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26TH JANUARY, 1967.

SUIT NO. SC 136/1965.

3PLR/1967/13  (SC)












PRACTICE AND PROCEDURE – Appeals – Declaration of title – Possession of Customary tenant not inconsistent with title of grantor cannot ripen into ownership however long –

CUSTOMARY LAW – Ownership of land – Prescriptive title unknown – Failure to plead histories relied upon in evidence – Such evidence not to be allowed without an amendment of pleadings – Appeal on facts – Powers of appeal court – Appeal court not to substitute its own views for views of trial court where the latter evaluated the evidence and appraised facts.



COKER, J.S.C. (Delivering the Judgment of the Court):

The respondents were the plaintiffs and the appellants the defendants in an action instituted In the High Court, Ibadan, Western Nigeria, in which the claims were as follows:-

“1-     A Declaration that the small Piece or Parcel of land situate and being at IWO ROAD and forming part of AGBA-AKIN AYANWALE’S FAMILY PROPERTY is the property of AGBA-AKIN FAMILY and not the Individual property of the 2nd Defendant.

  1. AN ORDER of the Honourable Court setting aside the sale of the said land by the 2nd Defendant to the 1st Defendant as evidenced by a Deed of Conveyance dated 7TH of march, 1958 and registered as Page 42, No. 42, Volume 239 at the Ibadan Land Registry.
  2. £250 Damages against the 1st Defendant for trespass committed on the said land belonging to and in possession of AGBA-AKIN AYANWALE’S FAMILY. 4. AN INJUNCTION RESTRAINING the 1st Defendant and/or his Agents from coming on the said land:’

By their Statement of Claim and the oral evidence given on their behalf the plaintiffs contend that the land in dispute (as shown on the Conveyance Exhibit C and the Plan Exhibit G) is part of a very large tract of land (shown on the Plan Exhibit F); that the land in Exhibit F was originally owned by one Agba-Akin Ayanwale, whose lineal descendant the plaintiffs are; that the 2nd defendant (who is not a direct descendant of Agba-Akin Ayanwale but a great-great-grandson to his sister, Ibirohin) and the 3rd defendant who Is in no way related to the Agba-Akin Ayanwale family, had both wrongfully and without authority sold the portion covered by Exhibit C (i.e. the land shown on Plan Exhibit G) to the first defendant who, pursuant to the sale, had entered upon the land and committed trespass thereon.

By their Statement of Defence (for the three defendants rather unwisely filed a single Statement of Defence) it was averred on behalf of the defendants that:-

(i)      the first defendant entered upon the land as of right and by virtue of the sale of the land in dispute to him by the 2nd defendant;

(ii)     the 2nd defendant rightfully sold the land to the 1st defendant as the 2nd defendant’s father owned the land, planted kola trees, cocoa and oranges thereon over thirty years ago and that he succeeded to the land after his father’s death; and the third defendant has neither sold any land to the 1st defendant nor made any claims to the ownership of such land.

At the trial the defendants, without objection, gave evidence to the effect that the land originally belonged to one Akingbile who was the first settler thereon; that Akingbile was an elder brother of Agba-Akin Ayanwale; that he was succeeded on the land by his son Akinfunmi who in turn was succeeded by Akintoro who was succeeded by Omotosho, the father of the 2nd defendant. It was, also given in evidence on behalf of the defendants that after the death of Omotosho, one Raji Alani, an unde of the 2nd defendant, succeeded Omotosho and that in any case after the death of Akintoro, Raji Ajani and Omotosho shared the land at Akingbile between themselves and that the portion sold to the 1st defendant was part of Omotosho’s share. The defendants also gave evidence that since the time of Akingbile they had always farmed the land, not as stated by the plaintiffs with the permission of the plaintiffs but In their own right as the true owners.

Irwin, J., gave judgment in favour of the plaintiffs for all their claims excepting that for damages for trespass which was abandoned in the course of the trial The defendants have appealed to this Court. It appears that the 3rd defendant had in the meantime died so the present appellants are the first two defendants.

Before us on appeal It was contended that the learned trial Judge misconceived the whole case as he did not resolve the issues postulated by the defendant’s case, especially having regard to the undisputed fact that the second defendant and his forebears had always been in actual physical possession of the land whether they were there as of right or with the permission of the plaintiffs; that the second defendant claimed to have descended from Akingbile and expressly denied a common ancestry with the plaintiffs and that under Native Law and Custom, land allotted to a person devolves upon his offspring on his death. We are not persuaded by this argument and much less appreciate the stress being placed upon lt. Apart from the fact of being in physical possession pleaded and given in evidence on behalf of the defendants, the defendants’ case is to put it at its highest no more probable than that of the plaintiffs and as will be shown later in this judgment, in the context of the entire controversy the defendant’s story is adversely affected by some circumstances apparent on the record and arising from the evidence and so manifestly unreliable. In the course of his judgment, the learned trial Judge ob-served as follows:-

“When the traditional stories advanced by the parties are considered in the light of the history of the land within recent years, the version of the plaintiffs, is, in my view, more probable than that of the defendants. It has, I think, been proved that Omotosho , the second defendant’s father, and Akintoro, his grandfather held the land as members of the plaintiff’s family, although they were not in the direct line of descent from Agba-Akin.”

It seems to us, therefore, that the Judge clearly adverted to all the issues raised by the defendants’ pleadings and evidence given on their behalf, including the fact of long possession by successive generations of Akingbile’s family, he saw and heard the witnesses and deckled, not unjustifiably, that the version of the plaintiffs is more probable than that of the defendants. The defendants did not plead the names or the histories of the several ancestors mentioned by them or on their be-half in evidence. Such evidence should not have been allowed without an amendment of the pleadings. Again, the defendants testified to a partition but did not tell or show the court any plan of the land alleged to have been partitioned let alone the extent of such land. The plaintiffs claimed to be owners of an area of over 98 acres as shown on the plan Exhibit F and that the land in Exhibit G formed part of that land. The defendants neither appreciated nor attempted to discharge the onus which then shifted to them of establishing how, within the very large area of land demonstrated to belong to the plaintiffs, the defendants should possess such a small area as Is shown in the plan Exhibit G. The possession of the 2nd defend-ant, as indeed that of his ancestors, is not inconsistent with the title of the plain-tiffs since such holding found by the Judge and under Native Law and Custom will not divest the plaintiffs of their ownership of the land. The plaintiffs claimed, and the Judge accepted it, that their progenitors had allowed the ancestors of the 2nd defendant and the 2nd defendant himself to use the land as customary tenants under Yoruba Native Law and Custom. As stated before, such possession will not ripen into ownership howsoever long it may be and title by prescription is not known to Yoruba Law and Custom.

The argument on behalf of the defendants needs no further consideration as we are of the view that the Judge clearly comprehended the entire case and came to a conclusion which is abundantly supported by the evidence. Where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a court of appeal to substitute its own views for the views of the trial court. This appeal therefore fails.

Appeal dismissed.


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