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F.S.C. 436/1962

18TH MAY, 1964

3PLR/1964/17 (SC)









  2. OBADO



(on behalf of himself and the Lujumo family of Ife)



Appeals in Civil Cases-Point re plaintiff suing in representative capacity, not taken in trial court-No ground of appeal on amount of damages-Argument on appeal on either not allowed.

CUSTOMARY LAW – Native Law and Custom-Oni of Ife’s power to grant land for farming in area of bush already granted to another.

PRACTICE AND PROCEDURE – Declaration of title to land and injunction; survey plan number to be mentioned in judgment-Judgment to deal separately with each paragraph of claim-Injunction without plan to tie it to; inappropriate.



  1. Ayoola for appellants.
  2. A. Adeyefa for respondents.


BIARAMIAN, J.S.C. (delivering the judgment of the Court).- In this appeal the defendants complain of the judgment given by Sir Samuel Quashie-Idun, former Chief Justice of the Western Region, on 2nd May, 1961, in the Ibadan Suit 1/132/1958, in favour of the plaintiff family, in regard to an area of land shown on their plan. The learned Judge accepted the evidence that the land was granted to Lujumo, the family’s ancestor, by the Oni of Ife of the day, and that Lujumo settled on it. His second finding is that the plaintiff family have exercised numerous and positive acts of ownership over the land extending from the days when Lujumo started to hunt on it many years ago and up to the time the defendants arrived on the land. On whether or not a grant of land was made to the defendants, his view was that they failed to prove that the land in dispute was granted to them: he believed that what took place (if anything took place at all) was that the messengers of the present Oni just allowed the defendants to go on the land without caring whether the land was occupied or not, and that happened in 1950. The plaintiffs complained about it, but out of respect for the Oni and his chiefs they were willing to live peaceably with the defendants; it was in 1958, when the defendants embarked on a survey and began placing pillars that the plaintiffs began this suit. What the judgment is, apart from the grant of declaration of title and damages for trespass by the surveying of the land and the cutting down of trees-what it is in -regard to the claim for an injunction will be referred to again later.


The appeal was argued by Mr. Yinka Ayoola for the defendants/ appellants, and by Mr. J. A. Adeyefa for the plaintiffs, on 18th February last. The Court did not allow any argument on the defendants’ behalf that the plaintiffs could not claim in trespass in a representative capacity, for the point had not been taken in the Court below; nor on the amount of £200 awarded as damages, for it was not in the grounds of appeal. There was a ground of appeal that the costs of £450 allowed were excessive; but the hearing took seven days and most of the amount was payment to the surveyor, who had to go back and do some work of detail on the plan. The main argument was on title, and the weight of evidence.


Mr. Ayoola’s argument is that the plaintiffs must prove (1) the fact of grant (2) the nature of the grant and (3) the area of grant; that their witnesses mentioned different names of Onis as the grantors; that they did not make it clear whether an absolute interest was granted, or whether it was subject to duties, or was mere occupation; that no absolute grant was made but Lujumo was a hunter and it was a hunting family; and that the family’s acts of ownership were after 1942, after the grant to the defendants; that after the Oni made a grant to the defendants there was a rush by the plaintiffs on to the land.


The core of the argument before us, as also in the court below, is that Lujumo was given a right to hunt only over the land which his descendants claim, which does not prevent the Oni from making grants within the area granted of parts for farming. The judgment does not accept that the grant was limited to hunting; it takes the view that any grant purported to have been made to the defendants was contrary to Native Custom, and goes on to say-


“I do not wish to imply that when a grant of stool land has been made the stool holder has no right to permit people other than grantees to settle on a portion of the land not cultivated by the original grantee. My view is that proper enquiry should be made and the original grantee approached and informed or even requested to agree to admit the new grantees and on the land.”


The learned Judge goes on to mention a specific instance and to say that he had known of others, and he thinks that in the present case the messengers sent with the defendants’ people must be blamed for what had occurred.


This Court has already said in E. T. Adewoyin and others v. Jones Adeyeye (F.S.C. 167/1962, decided on 28th January, 1963) that the Oni cannot, without consulting the family in possession, grant portions of their land, bush though it be, to others for cultivation. There was a grant to Lujumo in olden days of a tract of forest; he was a hunter; so are some of his descendants; so be it, but the idea which it is sought latterly to introduce, that the grant was limited to hunting and that portions can be granted to others without consulting his descendants, is one which the courts must set their face against and discountenance. It may be unfortunate that in olden days the Onis made rather large grants; they could not be expected to be prophetic and think of how the population might grow and pass from hunting and food-gathering to the stage of agriculture; they looked at things as they were in their days. Fortunately custom enjoins a family with more land than it can farm to let the needy have some of it to clear and cultivate; and the present plaintiffs have shown their willingness that the defendants, who also belong to Ife, should come in onto their land and make farms. What they object to is the rapacity and disloyalty of the defendants; and what they want is to compel the defendants to keep within bounds and to recognise their overlord ship. The plaintiffs have proved their title to the area they claim by grant to Lujumo; the evidence is elaborately considered in the judgment under appeal; and the sole practical question is one of arrangements whereby both parties may live amicably.


The trial Judge writes on the claim for an injunction that the parties can live amicably provided the defendants accept the plaintiffs’ people as having first settled on the land, and goes on to say- “I think that in the first place the defendants’ people should be restrained from making more farms without the permission of plaintiff and should accept the plaintiff’s people as the owners of the land. Secondly the plaintiff’s people and the defendants’ people should come to an agreement as to the tribute to be paid by the defendants’ people to the plaintiff in respect of farms made by defendants on the land. The third proposal is that the plaintiff’s family should be approached with the assistance of Ife Chiefs with a view to agreeing on a common boundary with the defendants as to the portion of land to be occupied by the defendants.


“It is hoped that these proposals would be carefully considered by the parties and accepted so that the parties might live on the land in peace and harmony. Evidence was given by the plaintiff that after he had complained to the Ife Chiefs, second and fifth defendants paid tribute to him as per Exhibits C1 and C2. There is no reason why the parties should not come to arrangements as to payment of tribute to plaintiff.”


Mr. Adeyefa for the plaintiffs told us that the defendants could continue to occupy the parts they occupied; that some were paying ishakole, and the terms on which the others would pay would be settled after this appeal was disposed of. The good sense shown by the plaintiffs is gratifying.


Mr. Ayoola in reply said the notes on injunction were not clear, and whether the judgment included an injunction and what precisely it was, was not clear.


The judgment was formally drawn up under the heading “Enrolment of Judgment,” which recites the claim thus


“(1)   Declaration of title to a piece of farmland situated at Erinta in Ife District.


“(2)   £2,000 damages for trespass committed by the Defendants to the said farmland since about seven years ago.


“(3)   Injunction restraining the Defendants, their servants and agents from further trespassing into the said farmland.


Below that the judgment states that the claim came up for hearing in the presence of certain counsel, and that the Court after the hearing adjudged and ordered thus


“Judgment for Plaintiff. Damages of £200 awarded Plaintiff. I award 450 guineas as costs.”


We are glad to see this practice in the Western Region of drawing up a formal judgment; it is right to set out the claim precisely in the terms of the claim in the writ of summons (and, if it is amended, then also in its amended form, with the date of the order of amendment); it is also right to state that the claim came up for hearing etc.: what is wanted is more detail of what was adjudged and ordered so that the precise nature of the decision may be clear, and this can best be achieved by having separate paragraphs-(a), (b), (c)—dealing with each of the paragraphs of the claim.


In High Court cases on land disputes it is usual to have a plan and to tie the judgment to the plan; it will be useful to give the number of the plan-not merely the exhibit number or letter, but the Plan No. itself, too-in the declaration made. That was not done here. As for the claim for damages, the award is precise. What is not precise is the injunction: was any injunction granted? If it was, what was its precise nature?


On the face of it the judgment grants all the claims—declaration of title, damages, and injunction, but as to damages awards £200 only.


As for the injunction granted, the claim is that the defendants should be restrained ‘from further trespassing’, and the learned Judge in his judgment said he thought that they should be restrained from making more farms without the permission of the plaintiff. There are two plans in evidence


A1-No. L & L/A2311 the plaintiffs’;

B1-No. BK 3373A-the defendants’.


B1 shows the land claimed by the plaintiffs verged pink (‘red’ the plan says), and the area in dispute verged green; A 1 shows the land claimed by the plaintiffs verged red, and the area in dispute verged blue. The “third proposal” made by the learned Judge is that the plaintiffs and the defendants should be assisted by Ife Chiefs to agree on a common boundary for the land to be occupied by the defendants. If we understand the judgment aright, the plaintiffs’ plan makes it possible to declare that they have the title to the whole area, but does not make it possible to tie the injunction to any particular enclaves outside which the defendants are not to go because the enclaves which the defendants occupy are not precisely delineated on the said plan-which means that an effective and useful injunction cannot at the moment be granted, and the better course is to reserve to the plaintiffs the right to seek an injunction later when they can produce a plan to which it can be tied with precision.

It may well be that the need will not arise: the defendants are to understand that they should not range with their farming outside the portions which they have been farming with the plaintiffs’ tacit consent.


The defendants have also been told that they should accept the plaintiffs as the owners of the land, and the learned Judge’s second proposal is that the parties should come to an agreement on the tribute to be paid by the defendants’ people for farms made on the plaintiffs’ land. No doubt the Chiefs would assist in this respect also. One hopes that there will be no more trouble between the parties.


The defendants’ appeal will be dismissed with thirty-seven guineas costs of appeal allowed to the plaintiffs, but for clearness’ sake it is proposed to replace the judgment of the Court below, dated 2nd May, 1961 in the Ibadan Suit 1/132/1958, by the following-


Judgment is given for the plaintiffs as follows-


(a)     For a declaration of title to a piece of farmland situated at Erinta in Ife District and shown on plan Exhibit Al-No. L. & L/A 2314 verged red


(b)     For two hundred pounds (£200) as damages for trespass-


(c)     Liberty to the plaintiffs to seek an injunction restraining the defendants, their servants and agents from further trespassing into the said farmland, the right to seek such an injunction being hereby reserved to the plaintiffs.


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