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17TH MARCH, 1967

SUIT NO. SC 426/1965.

3PLR/1967/5  (SC)











  1. G. O. Agbaje, (Adenekan Ademola with him) – for the Appellants

Ayoola, (Olamosu with him) – for the Respondent


LAND LAW – distinction between settler and the holder of a grant is no more than a mere technicality – Onus of proof – Plaintiff must establish his claim as pleaded – Effect of dismissal of plaintiffs claim in the absence of a counter-claim by the defendants – Dismissal does not amount to a declaration of title in the defendants – Costs already paid on a judgment which is subsequently set aside become automatically refundable without a further order.



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

In this case the Plaintiff, for himself and on behalf of the other members of the Olofa family, sued for a declaration of title to 118 acres of land at Molete, Ibadan, damages for trespass, and an injunction to restrain further trespass. The essential part of his Statement of Claim read:-

  1. The land in dispute originally belonged from time immemorial to Olofa, the great ancestor of the plaintiffs’ according to native law and custom from whom the plaintiffs, derive their title to the land according to Native Law and Custom.
  2. The land has always been in effective possession of the Plaintiffs who per-formed acts of ownership thereon – farming thereon until it became unsuitable for serious farming.
  3. The defendant sometime in 1957 started to lay claim to the said land as his family land and began to lay survey pillars thereon and purported to sell portions of it to people.”

The defendants pleaded that they derived title to the land from their ancestor, Iba Oluyole, and that some members of the plaintiff’s family had been on the land as tribute-paying tenants.

The plaintiff gave evidence in support of his version of the facts. He said that Olofa, so named because he fought with a bow and arrow, was a warrior who played a prominent part in expelling Egba and Ijebu invaders from Ibadan after the Area War, and afterwards settled on the land in dispute without asking anyone’s consent. He also called his surveyor and six other witnesses including the Olubadan. The defendants called eight witnesses. In his judgment the Judge reviewed the evidence and expressed his conclusions as to the ownership and possession of the land as follows:-

“Upon a consideration of the traditional evidence I have formed the view that there is a strong probability that the ancestor of the plaintiff was one of the warriors who either settled in that area or was granted land there by the Bashorun as trustee of communal lands. For this reason the declaration sought by them ought to be made. It seems to me however that the plaintiff’s family has not been in possession for some years and that members of the family sought to re-establish their authority over the land, when township development plans ex-tended to that area, by giving permission to certain persons to take sand from the land and by demanding tribute from the Igbiras whom they found on the land.”

On these findings of fact he granted the plaintiff’s declaration and an injunction, but refused him damages for trespass. The defendants have appealed against the grant of a declaration and an injunction.

The defendants submit that as the plaintiff had rested his family’s claim on the allegation that their ancestor was an original settler in his own right, and not by virtue of a grant from a superior, the judgment itself shows that the plaintiff failed to establish the claim as pleaded, since the judge merely regarded this as one of two possible origins of the family’s title. It is true that in a later passage the Judge says:-

“As I have said earlier and although I have found that the Plaintiff’s family lost effective possession, there is a very strong probability that their ancestor originally settled on the land” but we think there is substance in the submission. The distinction between a settler as of right and the holder of a grant is a mere technicality. The tide in this case is not alleged to have originated so long ago that the person who made a grant, d one had in fact been made, could not have been named, and if he had been, evidence on a variety of additional matters would have become relevant. It would also have become material to consider whether customary law would regard a grant as lapsing when a grantee or his successor ceased to be in effective possession of the land, a point which was not canvassed in this case, since on the pleadings it did not arise. Mr. Ayoola, for the plaintiff, agreed in this court that both in his pleadings and in the evidence the plaintiff had put his family forward as the descendants of an original settler, not of a holder of a grant, and that as there was no evidence of a grant to their ancestor the plaintiff must succeed or fail on the claim as pleaded. It was on the traditional evidence that the Judge based his view as to the owner-ship of the land, and no amendment of the pleadings would help the plaintiff in the absence of anything in the traditional evidence to support what the judge thought was a possible alternative root of title.”

The judgment in the plaintiff’s favour can only be upheld if this court is pre-pared to say that the Judge ought to have been satisfied on the evidence that the plaintiffs ancestor was an original settler. It is true that the Judge rejected the traditional evidence called by the defendants and did not reject that called by the plain-tiffs altogether but we are not prepared to go further and treat the claim pleaded as having been established, when the Judge did not do so. We think it significant that the Olubadan, whom the plaintiff called as a witness, and who has written a history of lbadan, said that he did not know of the ancestor, Olofa by name; if the plaintiffs account of Olofa’s exploits was true, and if he was a person of sufficient importance not to have to rely on a grant from a superior, we think it possible that his name would have been handed down as part of the oral history of Ibadan and have been known to a historian of the town. We also think it significant that no satisfactory explanation was offered of how the plaintiff’s family came to lose effective possession of an area of land extending to 118 acres, d it was really part of the land settled on by their ancestor.

To sum up, on the Judge’s own view of the facts we do not consider that he ought to have granted a declaration , since the plaintiff had not satisfied him of the truth of his claim as pleaded. We are not prepared to make a more favourable finding than he did, and the consequence is, as has often been held in cases of this kind, that, the claim ought to have been dismissed altogether. The defendants did not counterclaim for a declaration, and the effect of this judgment is not to declare that they are the owners of the land. The plaintiff fails because of the weakness of his own case, and we need not deal with the criticisms which have been made of the case put forward by the defendants except to say that they do not strengthen the plaintiffs case.

The appeal is allowed. The judgment of the High Court is set aside except so far as it dismissed the claim for damages and the action is dismissed in respect of the claims for a declaration of title and an injunction. The defendants must have their costs in the High Court and costs of appeal. In the High Court the Judge would have regarded 100 guineas plus out-of-pocket expenses as a proper sum to award if the plaintiff had succeeded in the whole of his claim. We award 100 guineas plus out-of-pocket expenses to the defendants, and any dispute about expenses is to be referred to the High Court. The costs of the appeal are assessed at 71 guineas. If the costs awarded to the plaintiff in the High Court have been paid they are to be refunded; we would have thought it unnecessary to make an express order to this effect if we had not been told recently that in some registries in the High Court such an order is treated as necessary. Where this court awards cross of the proceedings in the court below to a successful appellant it should be regarded as a matter of course that any general costs (as opposed to the costs of interlocutory proceedings or particular Issues) which he may have paid in consequence of the order of court below are to be refunded to him without any further order.

Appeal allowed.


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