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FSC. 86/1959

3PLR/1959/74 (SC)





SAMUEL OKAI QUASHIE-IDUN, AG. F.J. (Read the Judgment of the Court)


SULE LENGBE (Representing Lengbe Family)




M.A. Adesanya -for the Appellant.

  1. Somolu (Otuyalo with him) -for the Respondents.


APPEAL – Findings of fact – When interference by the Federal Supreme Court will be allowed.

LAND LAW – Family property – Allotment or partition of – Effect.

LAND LAW – Trespass – Proof of possession – Kola farm – Act of possession.


QUASHIE-IDUN, AG. F.J. (Delivering the Judgment of the Court):

The plaintiff, as the representative of the Lengbe family, instituted an action in the Supreme Court, Lagos, against the defendants claiming a declaration to a farm land and damages for trespass.

On the 5th October, 1954, the suit was transferred to the High Court, Western Region, in whose jurisdiction the land is situated.

The material averments in the plaintiff’s statement of claim were the following:

  1. that the land in dispute was a portion of the large piece of land ac­quired by Lukolu about three centuries ago.
  2. that Lukolu begat Oshogbiye also known as Abirunje, Gbiyelu, all males. Oshogbiye begat Aina, Ewugbase, Odujoko, all females, Sonubi and Talabi, both males. Ewugbase begat Ajayi Lengbe who begat the plaintiff.
  3. that after the death of Lukolu the land was divided among his children Oshogbiye and Gbiyelu
  4. that about 30 years ago the members of the large family agreed to divide the land available amongst themselves, namely, Lengbe, Odukojo, Talabi, Kabo and others.
  5. that the land in dispute was the portion which went to Lengbe and on which he planted kola trees, farmed and from which he collected rents until he died sixteen months prior to the institu­tion of the suit.
  6. that on the death of Lengbe the land descended to his children who have been in possession of it since.
  7. that the defendants are descendants of Odukojo and Talabi re­spectively.
  8. that on the 29th January, 1953, the defendants unlawfully en­tered upon the land, cleared the area edged yellow on the plan and cut down the plaintiff’s kola trees.
  9. that the defendants were falsely claiming the land in dispute as their own.

In their statement of defence the defendants admitted that the farm land in dispute originally belonged to the Olukolu family but that the defen­dants form an important branch of that family. It is necessary to mention here that the parties agreed that Olukolu was the same person as Lukoku. The 1st defendant averred that he and his family have been in possession of the land in dispute and have cultivated it forever 100 years as their portion of the Olukolu family land. The 2nd defendant claimed no interest in the land. It appears from the Record of Proceedings that with the consent of Counsel, the Court decided that two issues were to be tried, namely (a) whether the property of Lukolu was ever partitioned, and (b) whether Lengbe was a de­scendant.

On these two issues depended also the issues as to whether or not the plaintiff was entitled to a declaration in respect of the land in dispute and for a claim for damages for the trespass alleged to have been committed by the defendants.


The plaintiff gave traditional evidence and was supported by another member of the family who belonged to the Oshogbiye branch. Both gave evidence of the partitioning of the land after the death of Lukolu. The plain­tiff also called a witness Salamatu Odumosu who testified that she hired a kola nut farm from the plaintiff’s father before he died. Another witness, Suberu Igbira, also gave evidence that he hired a kola nut farm from the plaintiff. None of the defendants gave evidence although the 1st defendant was called only to tender documents in evidence. He was not sworn and did not give any evidence. The defendants, however, called one Ajayi Elejiep­oro who said he was the oldest member of the Lukoku family. This witness denied that Ajayi Lengbe, plaintiff’s father, was a member of the Lukoku family. He also denied that plaintiff’s father was granted a portion of the family land. He said that plaintiff’s father leased a piece of land from the Olukolu family and that it was the one in dispute. He continued his evidence and said that the mother of the 1st defendant was granted a piece of land for the purpose of planting kola nuts. The 1st defendant’s mother died and the 1st defendant inherited that piece of land. He continued and stated as fol­lows:


“The farm land given to 1st defendant’s mother is not the same as that given to Lengbe. They are about one mile apart. The land in dispute is the one given to the mother of the (1st) 1st defendant which plaintiff now claims.”


The learned trial Judge, after reviewing the evidence, dismissed the plaintiff’s claim.


Six grounds of appeal have been argued on behalf of the appellant, but in this judgment I think it is necessary to deal with only three. They are:


  1. that the learned trial Judge was wrong in holding that there was never a partition of Olukoku’s land;
  2. that the learned trial Judge misdirected himself in law and in fact when he held that Ajayi Lengbe was a descendant of Ewugbase instead of saying that Ajayi Lengbe was a descendant of Oshog­biye, when it was quite clear that the maternity of Lengbe was not in issue;


  1. that the decision is unreasonable and cannot be supported having regard to the weight of evidence.


I think it is convenient now to dispose of the 2nd ground of appeal. Counsel for the appellant has not been able to satisfy the Court that any mis­carriage of justice has occurred even if the Court did misdirect itself as al­leged. But the plaintiff’s evidence before the Court was that Ewugbase begat Ajayi Lengbe. That evidence supported paragraph 2 of the Statement of claim which averred that Ewugbase begat Ajayi Lengbe. That being so, I fail to see why the learned trial Judge’s finding can be wrong. On the evidence before the Court perhaps it would have been more correct for the Judge to have said that Ajayi Lengbe was begotten by Ewugbase and therefore a de­scendant of Olukolu than to say that he was a descendant of Ewugbase. It is my view, however, that as the learned trial Judge did not base his decision on that finding, no miscarriage of justice has occurred and the ground fails.


I now deal with the 2nd and 3rd grounds argued. The learned trial Judge stated as follows in his judgment:


“On the evidence adduced, I am not satisfied that there has been a partition of the land belonging to Olukolu. I believe that what has happened is what amounts on the evidence of D. W.2, which I accept on this point, to an allotment by the head of the family to various members of the family of portions of land for farming purposes. Such an allotment does not in any way vest such own­ership in the allottees as would entitle them under Native Law and Custom to a declaration of title………. On the issue of possession of the area in dispute the evidence of D.W.2. though confusing in its early stages is later clarified ….. I accept this evidence in preference to that of the plaintiff and his witnesses.”


Although the plaintiff averred in his Statement of Claim (paragraph 6) that the family land was “divided,” he is recorded as having stated in his evi­dence that the land was “partitioned”. Whether what he meant was that the land was partitioned amongst the members of the family so that each branch could occupy the portion allotted to it, is not very clear. But I agree with the view held by the learned trial Judge that what took place was an allotment to various heads of the family. This view is amply supported by the evidence which was not contradicted.


Having come to the conclusion that the family land was allotted to var­ious heads of the family, the learned trial Judge held that the plaintiff was not entitled to claim a declaration of title under Native Law and Custom in respect of the portion allotted to his family, and also dismissed his claim for damages for trespass. I agree with the learned trial Judge’s decision in re­spect of the claim for a declaration of title as I support his view that what took place among the members of the family was an allotment of the family land among the various heads of the family and not a partition of the family land thereby vesting ownership in the heads of the family. But I disagree with the view of the learned trial Judge that the plaintiff was unable to prove possession of the land in dispute. The plaintiffs evidence that the kola farms on the land had been rented to people who paid rent to the plaintiff’s father and later to the plaintiff, was not contradicted by the defendants. Apart from the fact that none of the defendants gave evidence the only witness cal­led by the defendants gave a very unsatisfactory evidence. Although the statement of defence alleged that the land leased out to plaintiff’s father was separate and distinct from the one in dispute, the witness stated that the land leased out to the plaintiff’s father was the one in dispute. He stated later that the land in dispute was the one which the family had granted to 1st defen­dant’s mother and which had been inherited by the 1st defendant. There was, therefore, ample evidence that the plaintiff’s family is in possession of the land in dispute. That being so, the plaintiff was entitled in law to institute an action for damages for trespass. See Kai Tongi v. Sulaiman Kalil, 14 W. A.C.A. page 331. There was also evidence that the defendants cut down two kola nut trees on the land.


It is not the function of this Court to disturb the findings of fact of the lower Court, but, where in the opinion of the Court, such findings are not supported by the evidence, or where the judgment is unreasonable having regard to the evidence, the Court will set aside the judgment.


It is my view that the learned trial Judge was wrong in dismissing the claim of the plaintiff for damages for trespass and the judgment should be set aside. The judgment dismissing plaintiffs claim for a declaration is upheld. Judgment is entered for plaintiff on his claim for damages for trespass. Plain­tiff is awarded £25 as damages against the defendants (£10 being special damages and £15 as general damages.) Costs for the appellant in this Court assessed at thirty-five guineas and in the Court below assessed at forty guineas.


ADEMOLA, F.C.J.: I concur.


BRETT, F.J.: I concur.


Appeal Allowed in part



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