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LAJIDE ONAMOGBA AKURU
V.
OLUBADAN-IN-COUNCIL
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF MAY, 1954
2PLR/1954/32 (WACA)
OTHER CITATION(S)
2PLR/1954/32 (WACA)
(1954) XIV WACA PP. 523-526
LEX (1954) – XIV WACA 523-526
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, AG. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
LAJIDE ONAMOGBA AKURU – Appellant
AND
OLUBADAN-IN-COUNCIL – Respondent
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REPRESENTATION
Adewale Thompson — for Appellant
C. A. Burton, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Land held under Native Law and Custom – Land tenure in Ibadan – Evidence – Traditional evidence on family or communal land – Evidence Ordinance (Cap 63), section 44
REAL ESTATE AND PROPERTY LAW:- Real Property – Declaration of title – Discretion – Laches and acquiescence – How treated
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CASE SUMMARY
Appeal by plaintiff: No. 212/1953.
Section 44 of the Evidence Ordinance provides that “where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant”.
The appellant claimed against the Ibadan Native Authority a parcel of land as belonging to his family, and damages for wrongful leasing to firms and collection of rents by the defendants.
His case was that his ancestor had settled on the land in 1824 and occupied it until 1900 when the Bale’s Council established a market there with the permission of the plaintiff’s family, who collected the tolls, but that in 1904 the Native Authority began to allow European traders to build on the land and received the rents without giving the family any share.
The family did not protest at the time; later, when in 1919 a commission was enquiring into land holdings of non-natives, the family did not air any grievance; nor did they in 1937 claim any compensation in respect of some of the land acquired compulsorily by Government.
The case of the Native Authority was that Ibadan was acquired by conquest and the land vested in the head of the community, who could evict occupiers on payment for improvements and use the land for public purposes or for newcomers likely to benefit the community.
The trial Judge was in doubt whether evidence of tradition could be given for the plaintiff but considered it nevertheless and found it worthless; he also thought that the plaintiff was estopped by laches and acquiescence from maintaining his claim.
The plaintiff appealed from the dismissal of his suit.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):
(1) Traditional evidence for the plaintiff was admissible under section 44 of the Evidence Ordinance, but in this case it was worthless.
(2) A declaration of title is a discretionary remedy, and even if the appellant had made out a claim to full ownership up to 1904, the laches and acquiescence of his family since then destroyed any right they may have had to such a declaration.
Cases cited:-
(1) Stool of Abinabina v. Chief Kojo Enyimadu (1953). 2 W.L.R. 261 (a Gold Coast case in the Privy Council).
(2) Kwanina Kuma v. Kofi Kuma, 5 W.A.C.A. 4.
(3) Alhaji Busari Suleman and Another v. T. Hannibal Johnson, p. 63 of W.A.C.A. cyclostyled reports for February to May, 1951, at p. 70.
(4) Cookey Gam’s case, 2 N.L.R. 100.
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MAIN JUDGMENT
The following Judgment was delivered:
DE COMARMOND, AG. C. J., NIGERIA.
The appellant was the plaintiff in the Court below. He claimed (on his own behalf and as representative of the Bankole Akuru family):
(a) a declaration that a certain parcel of land situate at Gbagi, Ibadan, is the property of the Bankole Akuru family of Ibadan; and
(b) £40,000 damages in respect of the wrongful leasing by the defendants of parts of the said parcel of land to several firms and the collecting of rents reserved by the leases.
The claims were made against the Olubadan-in-Council (otherwise called the Ibadan Native Authority and were originally entered in the Lands Court, Ibadan, from which they were transferred to the Supreme Court.
When pleadings were ordered, leave was granted to the plaintiff to increase to £100,000 the damages claimed.
The parcel of land (hereinafter called the land in dispute) was described in the writ of summons and is shown on plans (exhibits 2 and 3). There are now important buildings on the land in dispute. The learned trial Judge dismissed the suit and the plaintiff has appealed to this Court.
The gist of plaintiff’s case is that in 1824 his ancestor, Bankole Akuru, settled on land at Ibadan including the land in dispute, and worked on the land as a farmer and also as a doctor treating leprosy.
According to the plaintiff’s version Bankole Akuru’s descendants retained until the year 1900 A.D. the exclusive and undisputed ownership and possession of the land appropriated by their ancestor. In 1900, one Fajimi, the Bale of Ibadan, and the members of his council obtained the permission of the Bankole Akuru family to establish a market on the family land. A market was established on what is now the land in dispute, and the Bankole Akuru family was allowed to collect tolls from the stall-holders. This went on for some time, about four years. Later on, the Native Authority decided to allow European traders to build on the land in dispute and the plaintiff’s family never received any share of the rent paid by these traders.
The defendants’ case in the pleadings is that Ibadan town was acquired by conquest and that, in accordance with the custom of Yoruba land and particularly of the Ibadan district, land was vested in the head of the community on behalf of the community and could not be owned by members of the community in full ownership. Occupation was subject to the right of the head of the community to evict occupiers on paying compensation for crops and improvements and to dedicate the holdings to public purposes or for the use of newcomers who were likely to benefit the community.
It is obvious that the plaintiff’s first task was to establish that their ancestors had been in possession of the land in dispute as full owners.
The learned trial Judge entertained some doubts as to the right of the plaintiff to adduce traditional evidence. There is no possible doubt in this point: section 44 of the Evidence Ordinance provides that, where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant. Moreover, I would draw attention to the Gold Coast case Stool of Abinabina v. Chief Kojo Enyimadu (1), where the Judicial Committee commented on the importance of traditional evidence in actions for declaration of title. Another case on the point is Kwanina Kuma v. Kofi Kuma (2).
It need hardly be pointed out that the weight to be attached to traditional evidence is a matter which is left to the experience and wisdom of the Judge. In the present case, the learned trial Judge did apply his mind to the weight of traditional evidence although he doubted that it was admissible. He came to the conclusion that it was worthless, and I entirely agree with him.
The witness Layide Bankole Akuru, for example, gave evidence very badly. He began by saying that he knew Bankole Akuru, who was bis father. Then he contradicted himself and said that Bankole Akuru was his grandfather and that he saw him farming the land in dispute and treating patients. In the next breath he said that he never knew Bakole Akuru, who had died before he was bom.
The said Layide Bankole Akuru is the very man who is suing in a representative capacity. His evidence can be described as unreliable and unconvincing.
The next witness, Akanji, was no better. He is a member of the family. He made statements which completely destroyed plaintiff’s case. For example, he said that when buildings were erected on the land in dispute he did not find out who was putting them up because” I could not ask because the Native Authority gave out the plots. I let them build “. He also spoke the following words: “No member of my family tried to go back on the land after market closed, because we were told to leave the place. We did not therefore consider we had no further rights over the land.” It is clear that Akanji’s evidence justifies the view that the plaintiff family well knew at the time (about 1904) that no claim of ownership could be made by them.
It is not necessary for me to analyse the evidence of the other witnesses called by the plaintiff. There was no cogent and reliable evidence to justify a declaration of title. On the contrary, plaintiff’s last witness, Akinyele, who was in 1952 the President of the Native Court at Ibadan and who stated that he had written a history of Ibadan, said that Bankole Akuru was not one of the first settlers but was allotted land by the Bale and Chiefs. According to this witness who appears to have some knowledge of native laws and customs, lands allotted by the Bale and Chiefs could be taken back without compensation if wanted for a market or for some other public purpose.
I might mention two other serious flaws in the plaintiff’s case. The first is the fact that it was only in 1945 that the plaintiff family took the matter to court. The other flaw is that the plaintiff family took no steps to air their alleged grievance when a commission presided over by Speed, C. J., went to Ibadan in 1919 to enquire into the rights of non-natives who held land at Ibadan; neither did the family evince any interest when part of the land in dispute was compulsorily acquired in 1937 by the Government.
The reasons given by the plaintiff and his witnesses for their long acquiescence are flimsy and unconvincing. The logical inference to be drawn from the facts revealed at the trial is that the suit is a bare-faced attempt to put forward fanciful claims. A clear indication is afforded by the light-hearted manner in which a very large sum was claimed as damages.
I am of opinion that the position in the present case is covered by the decision of this Court in Alhaji Busari Suleman and Another v. T. Hannibal Johnson (3). At page 70 of the report this Court held that where there has been adverse possession for a long period (and I consider that the period in this case was about forty years, at least), the course of conduct of the former owners not only excludes their right to possession on the principle laid down in Cookey Gam’s case (4), but also creates a position in which it would be inequitable to hold that they are now entitled to rely upon native law and custom to support their claim to any rights of ownership whatever. The Court, in the Suleman case, held that the equitable right to a declaration of title had been completely extinguished.
Assuming that the appellants in the present case had made out their claim to full ownership up to 1900 or 1904, I am of opinion that they have no right now to a declaration of title of ownership; the more so as such a remedy is a discretionary one. I wish, however, to make it clear that I do not consider that the evidence on plaintiff’s side did establish that their ancestors had owned the land in dispute in full ownership.
The foregoing disposes of all the grounds of appeal. As already explained, although the learned trial Judge was not justified in doubting the admissibility of “traditional evidence” yet he did consider it and came to the right decision as to its weight.
As regards the next ground of appeal, namely, that the learned Judge erred when he said that the plaintiffs claim must lie, if at all, in equity, I am of opinion that this rather cryptic utterance did not affect the appellant adversely. If I may hazard a guess I would say that what the learned Judge had in mind was that before granting the declaration prayed for he would have to be satisfied that it would be equitable to grant it.
The next ground of appeal- was that the learned Judge was wrong in stating that “if the plaintiff ever owned the land in dispute at all, he is now estopped by his own laches and acquiescence from maintaining his claim”. I have already stated that the decision in Alhaji Busari Suleman and Another v. T. Hannibal Johnson justifies the view held by the trial Judge.
The next ground of appeal was that the trial Judge was wrong in holding that there was virtually no evidence in support of the plaintiff’s claim. It is hardly necessary to repeat that I consider that statement quite justified, The last ground of appeal, namely that the judgment is against the weight of evidence, has absolutely no merit.
I would, therefore, dismiss this appeal with costs.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J.A.
I concur.
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Appeal dismissed.
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