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7TH JUNE, 1991

3PLR/1991/32  (SC)






MUHAMMADU LAWAL UWAIS, J.S.C. (Read the Leading Judgment)






  1. M. O. AKINSUROJU (The Lapoki of Aye)
  4. JOHN ADUWO (For and on behalf of themselves and the Ikale Aye people of Epewe Imobi and Mororo respectively)



  1. CHIEF PAUL OLA JOSHUA (The Oloja of Igbobini)
  3. YAYI EBIHAN (For themselves and all other people of Igbobini)



Akin O. Sijuade, S.A.N. (with him, M.K. Olowu and E. Essien (Miss)) – for the Appellants

Chief F.R.A. Williams, S.A.N. (with him, A.O. Braithwaite) – for the Respondents



JUDGMENT AND ORDER – Order of dismissal – Effect thereof.

JUDGMENT AND. ORDER – Order of non suit -.When made -: Relevant considerations.

LAND LAW – Ownership of land- Land founded by individuals – Claim by a community in respect of same – What community must show to succeed.

PRACTICE AND PROCEDURE – Order of dismissal – Effect thereof.

PRACTICE AND PROCEDURE – Order of non suit – When made – Relevant – considerations.



UWAIS, J.S.C. (Delivering the Leading Judgment)

In this case the appellants were the plaintiffs in a suit which they brought on the 26th day of May, 1966 in the then High Court of Western Group of Provinces, holden at Akure, against the respondents as defendants. The plaintiffs’ claims against the defendants in the suit were as follows –      .

“(a)    Declaration: of title (in perpetuity or absolutely);according to native law and custom of all that piece of land situate at OdoAye consisting of the Villages of Epewe, Mobi, Moboro, Oluagbo and the surrounding area.

(b)     ₤200 General Damages for trespass committed by the defend-ants on the said plaintiffs’ land.

(c)     An injunction restraining the defendants their servants and or agents from further trespassing on the said plaintiffs land.” At the hearing of the suit, the plaintiffs called the 1st plaintiff as witness as well as a surveyor who tendered a plan of the land in dispute and one other witness as a boundary man’ The defendants called the 1st defendant as witness and two other witnesses this judgment, the learned trial Judge (D.O. Coker J., as he then was) stated as follows –

“It is a common ground that the plaintiffs are Ikales of Aye. The 1st plaintiff claims he is the Oba of Aye people with the title of Lapoki. The defendants are Ijaws and people of Igbobini and 1st defendant is the Oloja and natural Ruler of the people. These facts are not in dispute. From the evidence, it is clear and also not disputed that originally the Ikales, including the Aye people were mainly farmers, while the Ijaws including the Igbobini were fishermen and canoe pullers by trade. I have no difficulty in finding that the defendants, like other Ijaws, have temporary huts along the Rivers and Streams where they fish within the land in dispute. The plaintiffs have never complained about the erection of these temporary huts nor have they challenged the right of the defendants to fish in the Rivers and Streams within the disputed land. What the plaintiffs complain of are the other activities of the defendants on the land since the 1948 cases. These activities include the granting of land to Urhobos to build houses and granting permission to some. people to collect palm oil fruits from the land. The plaintiffs contend that the defendants are not entitled to do so.”

and later made the following findings of facts –

“After very careful consideration of the whole evidence, I am satisfied that the Ikale-Aye people have been using the land in dispute for very many generations past and that they were never the tenants of the defendants. I am satisfied that before 1948, the defendants never claimed ownership ofany part of the land in dispute, and they lost to the plaintiffs’ people in the very first encounter of their claim of ownership of the three villages which are part of this land. I am satisfied that apart from fishing is the streams and rivers within the land, they also evicted temporary fishing huts and or camps along the shores during their fishing activities. Defendants’ people never fanned or claimed ownership of the land nor did they ever place any Sobo Tenants on the land, as they have now done since the 1948 case. I am satisfied that the plaintiffs’ people have; from time immemorial been carrying on their rotational for, shifting farming on the land; and that they did so as owners of the land not as tenants of the defendants’ people:”

before entering judgment for the plaintiffs.

The defendants, who were aggrieved by the decision, appealed to the Court of Appeal. In its decision the Court of Appeal. Eboh, Ikwechegh and Musdapher, A.C.A.) inter alia observed as follows (per Ikwechegh, J.C.A.):r . .

“But what connection have Ikale Aye people as a community with these lands which were founded by individuals of a definite family? When did these lands pass into communal ownership? In. my understanding of the case and the evidence before the court of trial it seems that this is where the weakness in the proof of ownership lies. Damkau was said to, be, an Ikale Aye man, and his children Legbowuwa and Lagboju were Ikale Aye, too. They founded Epewe, Imobi and Mororo respectively-so the evidence shows. But then these lands can pass as inheritance only to the children of. the individual founders, and it seems to me that any claims by a community, unless the history of transmission of the interest. to a community is first pleaded and proved in evidence, cannot, be maintained as in this case. The judgment appealed’ against has decided that the traditional history in this case has sufficed to show that right of ownership and title is in the plaintiffs/respondents and they were declared the absolute owners of the lands. I would say that it is only the children-the direct descendants of Damkan, Legbowuwa and Legboju who could be on the evidence declared true owners. In my view the Ikale Aye people of Epewe, Imobi and Mororo have not proved their rights over and ownership of these lands. And it was wrong to declare them the absolute owners.” ‘

and concluded the judgment in the following terms—

“In my view, the appeal succeeds on this point and I allow it. The claims of Ikale Aye people as a community are not proved, I order therefore dismissal of the claims in suit AKR3/66. I award cost of N300.00 to the appellants.”

Then the plaintiffs appealed to this court against the decision of the Court of Appeal. They stated, in their brief of argument, only one question for determination, which reads thus –

“Whether having regard to the representative nature of the action before the court as borne out by the writ of summons as well as the Statements of Claim and Defence and also having regard to the relevance of the 1948 cases to the subject matter of this appeal, the learned Justices of appeal were right to refuse to confirm a declaration of title to the land in dispute in favour of the appellants.”

The defendants conceded, in their own brief, that the question for determination, as formulated by the plaintiffs accurately reflected the grounds of appeal filed by the plaintiffs, but the defendants contended that the question raised was irrelevant.

In his argument, Mr. Akin Sijuade, learned Senior Advocate for the plaintiffs, canvassed that no issue was joined, in the pleadings of the parties, on the representative nature of the action by the plaintiffs. The heading of the writ of summons and the Statement of Claim, he said, clearly indicated that the plaintiffs sued in a representative capacity. He referred in particular to paragraphs 4, 6, 7, 8 and 12 of the Statement of Claim. Learned Senior Advocate referred also to the Statement of Defence and in particular paragraphs 2, 10 and 11 thereof and submitted that it is clear from the references that the contest in the case was between two different ethnic groups- the people of Ikale Aye and the people of Igbobini who are Ijaws. He therefore, contended that the Court of Appeal did not give consideration to the representative nature and character of the action before them and hence their failure to confirm the plaintiffs as the absolute owners of the land in dispute under native law and custom.

In reply, Chief Williams, learned Senior Advocate for the defendants, argued that the Court of Appeal did not determine the appeal before it on the issue of the identity of the parties. He said that there was in fact no dispute that the plaintiffs and the defendants sued and were being sued in representative capacities. He submitted that what the Court of Appeal decided was that the evidence led by the plaintiffs did not prove that the land in dispute belonged to community as alleged by the plaintiffs but individuals. He cited the decision in Oragbade v. Onitiju, (1962) 1 SCNLR 70; (1962) N.S.C.C. 16 at p.20 lines 20-28, which he said is on all fours with the present case.

Now it is true, as submitted by learned Senior Advocate for the plaintiffs, that the plaintiffs brought the action in the High Court in a representative capacity. This is quite clear from the headings of the writ of summons as well as the Statement of Claim. However, there is inherent inconsistency in the averments in the plaintiffs Statement of Claim. While paragraphs 3,4, 5, 6, 7 and 12 thereof aver as follows –

“3.     The plaintiffs bring this action on behalf of themselves and the Ikale-Aye people.

  1. The defendants are being sued on behalf of themselves and the people of Igbobini.
  2. The plaintiffs are the owners from time immemorial of all the piece of parcel of land situate and being in Okitipupa District and which said land is more particularly described and de lineated on Plan No. AI 102/1966 filed with this statement of claim.
  3. The villages of Mobi, Epewe, Moboro and Oluagbo are within the said land in dispute.
  4. The plaintiffs’ ancestors had exercised rights of ownership on the land and the plaintiffs in succession have always exercised rights of ownership thereon.”

“12.   These villages have ever since been administered from Aye and have since remained in the possession of the Ikale-Aye People.”

paragraphs 8, 9,10,11 and 13 allege thus –

“8.     The said villages were founded by ancestors of the Ikale-Aye people (the plaintiffs) many years ago thus:

  1. Mobi was founded by Daniken an Ikale-Aye man who gave the name Mobi to the place because he planted Kolanut trees (Obi) in the place.
  2. Epewe was founded by Lagbonuwa the son of Daniken and he gave the name Epewa to the place because mushrooms were there in great quantity.
  3. Moboro was founded by Jagboju an kale-Aye man who later extended his farm to the surrounding areas of Oluagbo and Lagerele.”

“13.   Among plaintiffs’ ancestors who had exercised rights of ownership on the area are Ojaramuwa, Jiboro, Adodwa, Luwoye-Fafi, Aduwo-Dego Ijimakinwa and Ogidimo.”

In his testimony in proof of the aforementioned averments the 1st plaintiff, Oba Martins Olowu Akinsuroju, the Lapoki of Ode Aye, who testified as 2nd P. W. stated as follows –

“I and other plaintiffs on (sic) Ikales of Aye. I know the land subject matter of this Suit- It comprises of Mobi, Epare, Moboro and Oluagbo and Lagereke (which) are villages within the land in dispute. On the North, we have boundary with Ondo people by the Owun Stream, the Irele people occupy the South, there is also the Oluwa Stream, which has boundary with it. The lkales established these villages which I have earlier mentioned. Daniken founded Mobi. He was an Ikale. It was called Mobi because the land was suitable for Kolanut and he planted Kolanut trees there. Lagbowuwa, son of Daniken founded Epewa, because a plant called Epe, a kind of Mushroom grew on the land luxuriously. One Yabeju founded Moboro. Yagboju was also son of Daniken. Yagboju entered his farm to the forest land which were called Olugabo and Lagereke (sic). My ancestors who had used the land were Daniken, Kiborode, Ojaramuwa, Adojiwa, Luwoye-Laji, Aduwo-Dego,1jirnakinwa and Are Ogidimo. The Lapoki is the overlord of all these villages. From the time of Daniken the Lapokis have always been the overlord of these Villages and they are members of his family.” (Italics mine). What the foregoing evidence established was that the land in dispute was founded by the ancestors of the 1st plaintiff and succession to the land had been by the members of the family of the founders of the land. Apart from the general statement by the 2nd P.W., that the kale’s established the villages that constitute the land in dispute, there is nothing in his evidence to show that the land belongs to the community as a whole. On the contrary the evidence proved that only the members of the family or direct descendants of Daniken can and do inherit the land in dispute. Neither the testimony of 2nd P.W. nor that of the two other witnesses called by the plaintiffs establish that the people of Epewe, Imobi and Mororo own the villages or had any right of ownership over the village. In my view, therefore, the Court of Appeal was right in holding that the community represented by the plaintiffs, to wit Ikale Aye people, had not proved their claims.

As a consequential order, the Court of Appeal dismissed the claims made by the Ikale Aye people. The question that arises from this is: should the claim have been dismissed or should an order of non-suit have been entered against the plaintiffs? The issue came to the notice of this court after counsel for the parties had concluded their addresses and the case was adjourned for judgment which was to be delivered on the 21st day of June, 1991. Learned counsel for the parties were therefore invited to further address the court on the 5th day of April, 1991. Only Mr. Akin Sikuade, learned Senior Advocate, for the appellants appeared and addressed the Court- There was no explanation as to why Chief Williams, learned Senior Advocate, for the respondents failed to honour the invitation.

Mr. Akin Sikuade, urged that an order of non-suit, in place of the order of dismissal, should be entered against the plaintiffs and cited the following cases in support – Olagberniro v. Ajagungbade 111, (1990) 3 NWLR (Pt. 136) 37 at p.42 and A. CB. Ltd.. v. Chief F.S. Yesufu, (1989) 1-2 S.C. 49 at p.52. As already shown, the plaintiffs’ case was, as per their pleadings in the Statement of Claim, inherently contradictory. In one breath they pleaded that the case was brought on behalf of the people of Ikale Aye and that the land in dispute was a communal land. In another breath they pleaded that the land in dispute was founded by Daniken and his descendants and succession to the land had been through their descendants. It is manifest that in no way could the plaintiff prove their case since the pleadings had been inconsistent. If the plaintiffs case were to be dismissed both the people of Ikale Aye and the descendants of Daniken would be deprived of exercising any right on the land. But there is a previous judgment of the West African Court of Appeal – Suit No. W ACA 3685 which was tendered in the suit as exhibit B – which established that the land in dispute or part of it was a communal land. The learned vial judge, Coker, J. (as he then was) found as follows

“The judgment Exh. B (including Exh. C) is therefore material evidence in favour of the plaintiffs and against the defendants. Its effect therefore should not be ignored in considering the case of the parties. The three claims in the 1948 cases themselves presupposed that the Aye Ikale people were m possession of the three villages in 1948 when the defendants claimed ownership of them. The court held that defendants’ people were not the owners, but that the plaintiffs’ people were on the land in 1948 as owners, not as tenants of the defendants as they contended in the 1948 cases and also in the present suit.”

Now by the provisions of Order 30 rule 3 of the High Court Rules, Cap. 45 of the Laws of Ondo State, 1978 –

“The court may in any suit, without the consent of the parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”

and by the decision of this court in Olagbentiro’s case (supra) at p.62 an order of non-suit is to be made in the following circumstances –

(a)     Where the plaintiff has not failed intoto or entirely to prove his case; and

(b)     Where the defendant is not in any event entitled to the courts judgment; and

(c)     Where no wrong or injustice to the defendant would be caused by such order.

I am satisfied that these conditions have been met in the present case. Accordingly, the appeal has succeeded in part. The decision of the Court of Appeal is confirmed but the order of dismissal is hereby varied by the substitution therefore of the order of non-suit against the plaintiffs/appellants. There is no order as to costs. The parties shall bear their costs.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Uwais, J.S.C. and I find myself of the same opinion as himself on all the issues for determination in the appeal. l agree with him that the order of dismissal of plaintiffs’ claim made by the Court of Appeal be varied to one of non-suit of plaintiffs and I so order.

To that extent, the appeal has succeeded. To the extent seeking a declaration of title it has failed.

The parties are each to bear their costs.

KAWU, J.S.C.: I have had the advantage of reading in draft, the lead judgment of my learned brother, Uwais, J.S.C. which has just been delivered. I entirely agree with his reasoning and his conclusion that the appeal should be dismissed. I also agree that for the reasons stated in the said judgment an order of non-suit is the most appropriate. Accordingly I too will dismiss the appeal and abide by the order of non-suit made in the lead judgment. There will be no order as to costs.

BELGORE, J.S.C.: I had the advantage of reading beforehand the judgment of my learned brother, Uwais, J.S.C., with which I am in total agreement. The judgment of the Court of Appeal, on the reasoning of my learned brother, ought to be affirmed and I adopt his lucid reasoning in this regard. I also affirm the decision of the Court of Appeal except that I set aside the verdict of dismissal and in its stead I enter that of non-suit. I made the same order as to costs as made by Uwais, J.S.C.

OLATAWURA, J.S.C. I had the opportunity of reading in advance the draft judgment of my learned brother Uwais, J.S.C. just delivered. I agree with his reasoning and conclusions.

I also agree with the consequential order made.

The order of non-suit made appears to me to be reasonable in view of the history of the case and the earlier 1948 case which was tendered as Exhibit B in the court of trial. In his brief filed on behalf of the appellants, Mr. Sikuade the learned Senior Advocate in his brief pinpointed the effect of Exhibit B i.e. the 1948 case in his brief. The learned Counsel said:

“Throughout the proceedings in the 1948 cases (sic) and which by the way has been held by the Court of Appeal to be relevant to the present action, in that they were in respect of the same land in dispute in this action and were between their privies, the parties therein were constantly referred to as People of (kale-Aye, and People of Igbobini – the Ijaws!”

It would appear Chief Williams, S.A.N. appreciated the fear entertained by the appellants about the legal effect of a dismissal of the appeal and in order to allay their fears, he cited the case of Oragbade & Ors. v. Onitiju (1962) 1 SCNLR 90; (1962) 1 N.S.C.C. Vol. 2p.16/20 where the Federal Supreme Court per Bairamian, F.J. said:

“Likewise I do not think it would be proper to non-suit the plaintiff. Admittedly an action on behalf of the Ifetedo community as a whole claiming the entire area as communal land is wrong: so, the door should not be left open for the repetition of such an action, and the dismissal of the present action should stand. But this will not in my view prevent any appropriate claim being made hereafter: see Ajigunna 11 v. Akoworo JI, decided in WACA on 18th May, 1953. Without meaning Lobe exhaustive, if, for example, Oragbade wishes to claim a portion of the land in the plan as his farm, he may do so hereafter: and there will be nothing to prevent him from tracing his right back to a point of time when the portion was allotted to his ancestor out of communal property, if such be the case.

In effect the aim should be to put the parties in status quo ante except in one regard, namely, that the Ifetedo community as a whole, or anyone on its behalf should not once again claim the entire area as communal.”

No doubt that is the correct statement of the law. But it will be closing one’s eyes to reality to ignore the importance the communities and individuals attach to land. Land, notwithstanding the land Use Act, even to the peasants is a priceless commodity. Disturbances had erupted in the very recent pact as a result of disagreement on boundaries between communities. We gave the effect of dismissal of the appeal on the families a deep consideration, hence the invitation to both parties. A fact already referred to by my learned brother Uwais, J.S.C. Chief Williams, S.A.N. summed up the evidence led and rightly pointed out the case made out by the appellant:

‘“The appellants submit that the evidence only support an allegation that the land in dispute was Family Land and not that it was land communally owned by the community of Ikale Aye people:’

The reality of the consequential order made is to make a distinction between a communally owned land and Family land. If the latter is shut out, the consequences may affect not those before the court but those who may in future wish to trace their title to the individual families.

It will not be out of place if the writ and pleadings are mended so as to bring out the real issues in controversy bearing in mind Exhibit B.

I will also abide by the order of costs made by my learned brother Uwais,J.S.C.

Appeal allowed in part. Non-suit ordered.


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