3PLR – ABUDU KARIMU V DANIEL FAJUBE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ABUDU KARIMU

V

DANIEL FAJUBE

SUPREME COURT OF NIGERIA

18TH JANUARY, 1968.

SUIT NO. SC 388/1964.

3PLR/1968/51  (SC)

BEFORE

ADEMOLA, C.J.N.

BAIRAMIAN, J.S.C.

COKER, J.S.C.

 

REPRESENTATION

Chief F.R.A. Williams – for Appellant

C.A Fajemisin – for Respondent

 

MAIN ISSUES

Land Law – Declaration of title – Plaintiff granted declaration of title to area of land which included land he had sold already to 3rd parties – Conflict of traditional evidence – Traditional evidence found inconclusive – Resort to acts of ownership as decisive of ownership.

 

MAIN JUDGEMENT

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

This case was tried in the Ilesha Grade ‘A” Customary Court, which gave judgment for the plaintiff Daniel Fajube against the defendant Abudu Kadmu on January 9th, 1962; the defendant appealed to the High Court, and his appeal was dismissed on November 11th, 1963 by Doherty, J. at Ibadan (case No. 1/24/63): and the defendant has appealed further.

The parties agreed on one fact – that the land was that of the Chief Risa of Imo; but they differed on the genealogy. They so differed that in the outcome each disowned the other as a kinsman. The trial court preferred what the plaintiff gave as the genealogy, but thought that the traditional history of the origin of the tide was inconclusive and went into the evidence of acts of ownership. The upshot of the trial court’s judgment is as follows:

“I accept the plaintiffs genealogy as true. I find that the plaintiff, his father Fajube before him, his uncle Fajemidagba otherwise known as Lagunro all derived from Esan Chief Rise of Imo and in turn from Falomo the first Risa of Imo, have exercised numerous acts of ownership on the land for so many years.

I find for the plaintiff and declare that title to the land on Benin Road as shown on the plan Exhibit ‘A’ is vested in him and in the children of Falomo family.”

One argument for the defendant in his appeal to the High Court was that the plan did not show the precise land which the plaintiff was claiming, for it included some portions of land which he had sold to third parties and no longer owned. For the plaintiff it was explained that those portions were included only for the purpose of proving acts of ownership. Doherty, J. accepted this explanation; he also remarked that the whole area was in dispute and the defendant knew it was the areas edged pink on the plan. In effect the learned Judge was saying this: the declaration affects the parties in the case, and does not affect others, and so it may stand.

In the appeal before us, learned counsel for the defendant argued as before on this point. We do not think it is a good ground for setting aside the judgment of the trial Court when viewed only as a judgment between the parties in the case.

The other argument in the High Court for the defendant was that there was over-whelming evidence that the land belongs to the Risa of Imo family and not to the Falomo family, i.e. the family of the plaintiff. Doherty, J. referred to a passage in the judgment of the trial court which read as follows:-

“All these various acts dating back to far beyond fifty years in some of the in-stances constitute, to my mind, acts of ownership extending over sufficient length of time, numerous and positive enough to warrant the inference that the plaintiff and those he represents (which according to his evidence includes the issues of Fajemidagba (alias Logunro) were exclusive owners. This is an issue of fact, and I am absolutely satisfied on them that the plaintiffs are the owner.”

The learned Judge also referred to the passage from the judgment of the trial court which we have quoted earlier. He could find no reason to disagree with the findings of fact in that judgment or with the final conclusion based on them.

In the appeal before us the defendant is faced with concurrent judgments. The argument for him was that both parties agreed that the land belonged to the Risa of Imo; it was hard to say who the first Risa was; the genealogy was in dispute, and it was not satisfactory to try the issue of the relationship to the Risa. The answer for the plaintiff was that the traditional history was not useful, and the trial court did well to go by the acts of ownership. The reply for the defendant was that according to Ekpo v. Ita (1) we had better quote from p.69 what has become a classic statement:

“In a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – M the evidence of tradition is inconclusive the case must rest on question of fact.”

But learned counsel went on to refer to Thomas V Holder (2) as deciding that if you could identify the original owner, the question then would be the land of the Risa of Imo.

Precisely so, but, as the learned counsel himself said in his opening address, it was hard to say who the first Risa was. It seems to us that the trial court, finding the traditional evidence on the original of the title inconclusive, did well to adopt the principle in Ekpo v. lta of going by the acts of ownership. We note that counsel did not dispute the findings of fact on ownership and long possession, and see no reason for reversing the judgment.

Appeal dismissed.

 

 

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