CHIEF OYELAKIN BALOGUN & 2 ORS (APPELLANT)

v.

OLADOSU AKANJI AND ANOR (RESPONDENT)

(1988) All N.L.R. 188

Division: Supreme Court of Nigeria

Date of Judgment: February, 12, 1988

Case Number: (SC94/1986)

Before: Nnamani, Uwais, Oputa, Wali, Craig; JJ.S.C

The respondents were the plaintiffs in a suit which they instituted against the appellants as the defendants in the High Court of Oyo state, holden at Ibadan. The plaintiffs' claims (as per their writ of summons) were jointly and severally against the defendants as follows:-declaration of statutory right of occupancy to all that piece and parcel of land situate, lying and being at Olunloyo near Akanran road Ibadan; N5,000.00 general damages for trespass; and perpetual injunction restraining the defendants, their servants or agents from further trespass to the land and Annual rental value of N300.00.

Pleadings were filed and exchanged between the parties, except that the 2nd defendant-Ganiyu Kolapo Adigun neither file a statement of defence nor put up appearance at the hearing of the suit.

The plaintiffs case was that the land in dispute which was verged red in plan OG 477/80 which was admitted in evidence as exhibit A was settled on by their ancestor, one Ojo sango, after the kiriji war which affected Ibadan. It was claimed that Ojo Sango came to the land in dispute together with his two brothers-Abidogun and Sangotayo. They settled on and used the land. On their death, they were succeeded on the land in dispute by the Children of Sangotayo who were in turn succeeded by their own children (that is the grandchildren of Sangotayo). The plaintiffs are the grandchildren of Sangotayo.

On the other hand, the case for the 1st and 3rd defendants though similar were different. The case for the 1st defendant was that an area of land in dispute which was verged green in Exhibit A was settled upon by conquest by one Bamimeke Akani, who was a warrior during the reign of Bashorun Oluyole who ruled Ibadan from 1820 to 1850. When Bamimeke Akanbi died, he was succeeded on the land by members of his family. The 1st defendant claimed title of the piece of land verged green in Exhibit A through the family of Bamimeke Akanbi.

The case for the 3rd defendants was that a piece of land which is part of the land in dispute and which was verged yellow in Exhibit A was first acquired jointly by Ogunfalu and Bamimeke by settlement and occupation under Yoruba Native law and custom. The acquisition took place during the reign of Bashorum Oluyole Ogunfalu and Bamimeke were succeeded on the piece of land in question by their children who had been in undisturbed possession. The children had sold portions of the land to various people including the mother of the 3rd defendant called Fehintola. On her death, Fehintola was succeeded on the land by her three children, one of whom is the 3rd defendant. The 3rd defendant sold a portion of the land they inherited to the 2nd defendant who did not contest the plaintiffs' claims.

The parties called witnesses and the trial judge held that the plaintiffs have not shown such exclusive possession as would lend aid to the evidence that Ojo Sango was the owner of the land. The court was however satisfied that the plaintiffs ancestors owned some undefined part of the land in dispute. The court held that since the plaintiffs have failed to prove exclusive possession of the entire land, or could not find trespass proved. The court therefore dismissed the plaintiffs claim for trespass and non - suit the plaintiffs claim for declaration and injunction.

Both the plaintiffs and the defendants felt aggrieved by the decision of the trial judge. They therefore appealed and cross appealed to the court of Appeal. The Court of Appeal dismissed the cross-appeal and allowed the appeal of the plaintiffs, granted a declaration of the statutory right of occupancy sought by the plaintiffs awarded damages against the defendants for trespass and ordered an injunction restraining the defendants, their servants and agents from further act of trespass to the land.

It is against that decision that the 1st defendant has appealed to the Supreme Court.

HELD:-

(1)     As the evidence of the traditional history of the defence was inconsistent and conflicting, and no boundary men were called by them; the trial judge should have believed the traditional evidence of the plaintiffs since in his words "their assertion that the land in dispute belonged to Ojo Sango remained unshaken in cross-examination" of their boundary men.

(2)     By the acceptance of their traditional evidence, it was enough for their claim for declaration to be granted. It was not therefore necessary for the trial judge to look for evidence of exclusive possession of the land in dispute before the declaration sought by the plaintiffs could be granted.

(3)     Once it has been established that the plaintiffs had better title to the land in dispute and the defendants were on the land without the permission of the plaintiffs, then the claim by the plaintiffs for trespass against the defendants have been established and ought to have been granted.

(4)     In the light of the foregoing, there is no doubt that the learned trial Judge did not evaluate the evidence before him properly and that occasioned miscarriage of Justice. The Court of Appeal had, in my opinion acted rightly in re-evaluating the evidence and coming to the conclusion which it did.

(5)     The Court of Appeal merely put together under one head a precise of all the grounds of appeal and cross-appeal that raised the same points. And in dealing with the issues, it recognised that some of them were very wide. In fulfilling it pledge to deal with the most relevant ones, it extensively dealt with the findings made by the trial judge. I see no miscarriage of justice which has been occasioned as a result of the exercise.

Appeal dismissed

Mr Y.A. Agbege for the Appellants

Mr J. O. A. Ajakaiye for the Respondents

Cases Referred to:-

(1)     Ajadi v. Olanrewoyu (1969)

(2)     Akinola v. Oluwa (1962) All NLR Vol 1 Part 2 at p 227

(3)     Ebba v. Ogodo (1984) 4SC 86 at p 98

(4)     Idudun v. Okumagba (1976) 1 NMLR 200 at p 210

(5)     Wolucham & Anor. v. Simon Gudi (1981) 5 S.C 319.

Uwais, JSC. In this appeal the respondents were the plaintiffs in a suit which they instituted against the appellants as defendants in the High Court of Oyo State, holden at Ibadan. The plaintiffs' claims (as per their writ of summons) were jointly and severally against the defendants as follows-

"(a) Declaration of statutory right of occupancy to all that piece and parcel of land situate lying and being at Olunloyo near Akanran Road, Ibadan bounded by Alawaye land, Allen land, Agbongbon land, Abegunde land and Bode Asha land respectively.

(b)     N5,000.00 general damages for trespass

(c)     Perpetual injunction restraining the Defendants, their servants, agents and privies from further trespass to the land. Annual rental value N300.00."

Pleadings were filed and exchanged between the parties, except that the 2nd defendant-Ganiyu Kolapo Adigun neither filed a statement of defence nor put up appearance at the hearing of the suit.

The plaintiffs' case was that the land in dispute, which was verged red in plan OG 477/80 which was put in evidence as exhibit A, was settled on by their ancestor, one Ojo Sango, after the Kiriji War which affected Ibadan. It was claimed that Ojo Sango came to the land in dispute together with his two brothers-Abidogun and Sangotayo. They settled on and used the land. On their death, they were succeeded on the land in dispute by the children of Sangotayo, who were in turn succeeded by their own children (that is the grandchildren of Sangotayo). The plaintiffs are the grandchildren of Sangotayo.

On the other hand, the case for the 1st and 3rd defendants, though similar, were different. The case for the 1st defendant was that an area of the land in dispute which was verged green in exhibit A was settled upon by conquest by one Bamimeke Akanbi, who was a warrior during the reign of Bashorun Oluyole who ruled Ibadan from 1820 to 1850. When Bamimeke Akanbi died, he was succeeded on the land by members of his family. 1st defendant claimed title of the piece of land verged green in exhibit A through the family of Bamimeke Akanbi.

The case for the 3rd appellant was that a piece of land, which is part of the land in dispute and which was verged yellow in exhibit A, was first acquired jointly by Ogunfalu and Bamimeke by settlement and occupation under Yoruba native Law and Custom. The acquisition took place during the reign of Bashorun Oluyole. Ogunfalu and Bamimeke were succeeded on the piece of land in question by their children who had been in undisturbed possession. The children had sold portions of the land to various people including the mother of the 3rd defendant, called Fehintola. On her death, Fehintola was succeeded on the land by her three children, one of whom, is the 3rd defendant. The 3rd defendant sold a portion of the land they inherited to the 2nd defendant, who did not contest the plaintiffs' claims.

The parties called witnesses and in his judgment, the learned trial Judge observed as follows-

"I now turn to the evidence. I am not going to repeat what each witness said. Suffice it to say that I have carefully considered their evidence. The evidence called by the plaintiffs in relation to the acquisition of the land by Ojo Sango is very much in line with their pleadings. The same can be said of the evidence called by the defendants."

Now let us examine the pleadings in order to see the salient averments said to have been supported by the evidence adduced by the parties. The plaintiffs in paragraphs 3 to 18 inclusive and paragraph 20 of their statement of claim aver as follows-

"3.     The land in dispute is shown on plan No. OG 477/80 dated 16th July, 1980 made by Chief S. Akin Ogunbiyi, Licensed Surveyor and is therein edged Red.

4.      The land in dispute which was a virgin land was settled upon by Ojo Sango after the Kiriji war and Ojo Sango lived and farmed thereon with his two brothers Abidogun and Sangotayo.

5.      Ojo Sango, Abidogun and Sangotayo were the children of ANIKU.

6.      Ojo Sango had 8 children namely: Jariogbe, Durowoju, Adeniji, Ajayi, Adedigba, Akande, Idowu and Adeyemo.

7.      Ojo Sango during his life time built a hut on the land in dispute where he lived and farmed but the hut is now in ruin.

8.      Ojo Sango planted many crops thereon among which were Coca, Kolanuts, Palm trees, Oranges, Agbalumo fruits and all kinds of cash crops.

9.      Ojo Sango died several years ago and he was succeeded in the use and management of the farm land in dispute by Abidogun his brother who in turn made some additions to the crops planted by Ojo Sango on the farm land in dispute.

10.     When Abidogun died his brother Sangotayo again succeeded to the use and management of the farm land in dispute as did his predecessors in title.

11.     Since the death of Sangotayo, Jariogbe, Durowoju, Adeniji, Adedigba at one time or the other have each in succession used and managed the farm land in dispute for the family.

12.     Not long ago Adedigba who was the last principal member of Ojo Sango to use the land in dispute died and the 1st Plaintiff came down from Ile-Ife to join the 2nd Plaintiff, the son of Adedigba in the management of the farm land in dispute.

13.     A few years ago the Plaintiffs family were challenged by the 1st Defendant who claimed that one AIBINU sold part of the land in dispute to him and invited the Plaintiffs to his office for negotiation and settlement.

14.     The Plaintiffs refused to negotiate on any ground in the disposition of their family land as they were not prepared to sell their family land to any-one.

15.     The 1st Defendant has since continued to harass the Plaintiffs and other members of their family with Police over the said piece and parcel of land in dispute.

16.     Since the harassment of the Plaintiffs the 1st Defendant has on several occasions trespassed on the land by surveying it and planting pillars therein which activities the Plaintiffs have persistently resisted.

17.     Sometime in 1978 the 2nd Defendant trespassed on a portion of the land in dispute and when he was challenged, he claimed that the 3rd Defendant sold it to him, and he is now erecting a hut thereon.

18.     The 3rd Defendant claimed she owned the land in dispute and as such she disposed part of it to the 2nd Defendant."

"20. The area trespassed upon by the defendants is shown on plan No OG/477/80 dated 16th July, 1980 filed in this suit."

In paragraphs 4, 6 to 20 inclusive of his Amended statement of Defence the 1st defendant alleged-

"4.     The 1st Defendant avers that the area verged green was settled upon by conquest by a warrior-Bamimeke Akanbi, during the reign of Basorun Oluyole who ruled Ibadan from 1820 to 1850."

"6.     The 1st Defendant will contend at the trial, that giriji (sic) War was fought at Igbajo and will rely on Suit No. 1/288/72-R. Onajobi & 1 other versus Bello Olanipekun and 2 others and on documents concerning the commencement, continuance and termination of Kiriji War; especially the treaty of 4th June, 1886.

7.      The 1st Defendant avers that Bamimeke, Allen, Agbongbon, Awopegba, Ogunfaolu and Abogunde who are the boundarymen of the land in dispute and Obisesan alias Aperin, Oderinlo and Ogundepo and others were ordered by Basorun Oluyole to expel the Ijebus who originally settled on the parcel of land starting from Aperin junction in Ibadan Municipality down to River Osun about thirty kilometres from Ibadan in Oluyole local Government Area.

8.      The 1st Defendant avers that as a result of the order by Oluyole, the said Warriors drove away and expelled the Ijebus and have since been confined to River Osun.

9.      Bamimeke and others thereby settled by conquest on their holdings.

10.     Bamimeke remained in an undisturbed possession until his death and the land became Bamimeke family land after Bamimeke's death many years ago.

11.     The 1st Defendant avers that the economic trees on the land in dispute were planted at various times tenants who were allowed to farm thereon, especially, Adebisi Abegunde, and his late father.

12.     The 1st Defendant avers that the ancestor of the plaintiffs was a MERE Sango priest and the ruined hut belonged to Ogunfaolu, who was the overlord of Ojo Sango and he was only farming on the land at the pleasure of Ogunfaolu, since he was just a customary tenant with all the incidents of customary tenancy. Ogunfaolu and Bamimeke were brothers.

13.     The 1st Defendant avers that Bamimeke family in exercising their right of ownership sold their family property to the first defendant in 1970 under native law and custom in the presence of the following witnesses:-

(i)      LATE LADEJO ALAGEE

(ii)     LATE LAYIWOLA AFIKODE

The receipt of the purchase price was later acknowledged in a document dated 10th October, 1974.

14.     The 1st Defendant immediately took up possession and started exercising acts of ownership.

15.     In 1976, a deed of conveyance registered as No.45 at Page 45 in Volume 1988 in the Lands Registry, Ibadan, was executed in favour of the 1st Defendant.

16.     In Suit No. CV/85/74-Chief Oyelakin Balogun versus Wahabi Asamu Ayorinde, the 1st Defendant successfully sued W.A. Ayorinde, who is nephew to the 2nd Plaintiff. At the trial of the said case, the said Ayorinde claimed that he purchased part of the land in dispute from AIBINU in 1971, a year after Bamimeke family had sold the whole land to the 1st defendant without Aibinu who was then sick. Having realised that the whole family had sold their interest to the 1st Defendant in 1970, Aibinu refunded ten pounds (N20.00) paid by Ayorinde under native law and custom.

17.     The said transaction which was under native law and custom was witnesses by:-

(i)      MORENIKE ANIKE (the elder sister of 2nd Plaintiff).

(ii)     LASISI AKANO (son-in-law of Morenike Anike). The name of Morenike's Daughter who is married to Lasisi Akano is MOLETE.

18.     In consequence of the said sale under native law and custom a document in which Aibinu acknowledged the receipt of the purchase price was thumb printed on the 12th day of November, 1971.

19.     In the aforesaid document, the boundarymen were described as follows:-

(i)      MR. OBAFEBO

(ii)     MR. SALAWU FARM

(iii)    A STREAM

20.     The 1st Defendant will contend at the trial, that Obafebo mentioned in the document was a child of Fehintola who bought the property from Ogunyinka Ogunfaolu. He will contend further that Salawu Farm meant Salawu or Sunmonu Alawaye's farmland and that the stream referred to is the stream shown on the plan filed by the plaintiffs."

For her part, the 3rd defendant pleaded as follows in paragraphs 3 to 14 of her statement of Defence-

"3.     Ogunfelu and Bamimeke jointly acquired by settlement and occupation under Yoruba Native Law and Custom the land in dispute (verged "Red" in the Survey Plan attached to Statement of claim) situate at Olunloyo on Akanran Road, Ibadan during the reign of Bashorun Oluyole that is 100 years ago.

4.      Ogunfalu and Bamimeke were brothers of full blood.

5.      During the life-time of Ogunfalu and Bamimeke, they exercised acts of ownership undisturbed on the land in dispute by planting Cocoa, Palm Trees, Kolanuts, Oranges and vegetables.

6.      After the death of Ogunfalu and Bamimeke, they were survived by children including Ogunyinka and Akinola.

7.      The children of Ogunfalu and Bamimeke had been in undisturbed possession and exercising acts of ownership undisturbed by planting and reaping various crops like Cocoa, Palm trees, Kolanuts on the land in dispute.

8.      The children of Ogunfalu and Bamimeke have sold portions of the land in dispute to various people including the 3rd defendant's mother called Fehintola for the sum of N20.00 in the presence of witnesses.

9.      Madam Fehintola has been in undisturbed possession of the land in dispute by planting oranges, Kolanuts, Coffee and maize since the reign of Oba Abasi Aleshinloye of Ibadan.

10.     After the death of Fehintola she was survived by the following children namely:-Oguntoyinbo, Ayoola and the 3rd defendant.

11.     Oguntoyinbo, Ayoola and the 3rd defendant has (sic) also been reaping and planting oranges, Kolanuts, Coffee and maize on the land in dispute undisturbed.

12.     Over 5 years ago, Oguntoyibo, Ayoola and the 3rd defendant in the presence of witnesses sold a portion of the land in dispute to the 2nd defendant for the sum of N300.00 (Three hundred Naira) and who had since erected a building on the land in dispute undisturbed.

13.     Over four years ago, the 3rd defendant also sold a portion of the land in dispute to Chief Awotunde.

14.     Chief Awotunde has already sold portion of the land in dispute to various people who had erected foundation structures on the land in dispute before this was commenced."

With regard to the evidence of boundarymen called by the plaintiffs, the learned trial Judge found as follows-

"It is significant that all surrounding boundarymen testified for the plaintiffs to the effect that the land in dispute belonged to the plaintiffs' ancestor Ojo Sango. In land matters such as this the evidence of boundarymen should be carefully regarded. While the court will not abdicate its judicial function to boundarymen by accepting their evidence without evaluation and without weighing it along with the rest of the evidence it is manifest that where other facts do not detract from the weight of evidence of boundarymen which is clear and cogent, the evidence of boundarymen carries much weight.

In the instance case Alimi Adisa (2nd P.W.) from Agbongbon family, Lasisi Asa (3rd P.W.) from Bode Asa family, Akinloye Amole (4th P.W.) from Allen family and Popoola Abegunde (6th P.W.) from Abegunde family all gave evidence supporting the plaintiffs' case. Although their evidence as to acts of ownership is rather paltry their assertion that the land in dispute belonged to Ojo Sango remained unshaken in cross-examination. I cannot reject their evidence unless there is anything on the totality of the evidence which makes it unsafe to rely on their evidence." (underlining mine)

The 1st and 3rd defendants did not call their boundarymen as witnesses but led evidence to establish their acts of possession. Learned trial judge held that Ojo Sango built a house or hut on the land in dispute and that he was not a tenant on the land. He made the following direct findings of fact

"The picture which has emerged from the totality of the evidence and which I find as of fact is that (1) Ojo Sango is reputed in the neighbourhood to own the land in dispute and built a hut thereon; (2) Ojo Sango used the land and built a hut thereon: (3) But, Akinola the son of Bamimeke; and Madam Fehintola, the mother of the 3rd defendant, were also present on the land in circumstances which the plaintiffs have not pleaded and which I am constrained therefore to hold are not by grant of the plaintiff's family."

Learned trial judge then concluded his judgement thus-

"The plaintiffs have not shown such exclusive possession as would lend aid to the evidence that Ojo Sango was the owner of the land. I do not find much to choose from between the rival and conflicting evidence of tradition led by the parties. I am however satisfied that the plaintiffs' ancestor owned some yet undefined part of the land in dispute.

Since the plaintiffs have failed to prove exclusive possession of the entire land I cannot find trespass proved. Since, also, the plaintiffs are certainly not in possession of the entire land I do not think it is fit to order an injunction which will cover the entire land."

... In view of the findings I have I made above, I do not think an outright dismissal of the plaintiffs' case will be appropriate

... In the result, I dismiss the plaintiffs' claim for trespass and non-suit the plaintiffs on their claim for declaration and injunction." (underlining mine)

Both the plaintiffs and the defendants felt aggrieved by the decision of the trial judge. They, therefore, appealed and cross-appealed to the Court of Appeal. That Court (Uche-Omo, Omololu-Thomas and Onu JJ.C.A.) found as follows-

1.      That learned trial Judge was wrong when "after the finding of fact in support of the appellants' (plaintiff's) traditional history, the trial judge proceeded to consider as against the appellants traditional evidence and acts of possession, the acts of ownership alleged by the respondents (defendants); and in the process concluded that the appellants have not shown such exclusive possession as would lend aid to the evidence of boundarymen to make him safely find on their evidence that Ojo Sango was the owner of the land, even after holding that the appellant can succeed on traditional evidence alone."

2.      That 3rd defendant gave evidence concerning a piece of land which was not the same as the land in dispute and therefore the testimony of 2nd plaintiff which learned trial Judge found to have "tended to support" the case of the 3rd defendant did not do so.

3.      That "the 1st and 3rd respondents (defendants) filed separate pleadings and presented distinct and separate defences to the action, and the trial judge was wrong, to have evaluated their evidence together. The appellants' (plaintiffs') case would have been better appreciated if he had considered the defences separately as indicated by the pleadings. By his failure to do so he had admitted and made use of inadmissible evidence and had misdirected himself in such a manner as to occasion a miscarriage of justice."

4.      That the cases of the 1st and 3rd defendants "viciously conflict and are irreconcilable. The traditional evidence from both are either jointly or severally thus irreconcilable. The trial judge made no effort to reconcile the contradictions, while the appellants' (plaintiffs') traditional evidence remained firm."

5.      That the evidence adduced by the plaintiffs was "clear as to the area they claimed and the area trespassed upon.

The learned Justices of the Court of Appeal then held as follows-

"While it is the law that a plaintiff must rely on the strength of his own case and not the weakness of his opponent's case, the determination of the issues could have been preceded by a resolution of the conflicting evidence and issues on the basis of a proper evaluation of all the evidence; in which case the trial Judge would have experienced no difficulty in holding that the traditional evidence of the appellants (which is clear and cogent) is compelling and more probable. It can therefore be said that had he properly evaluated all the evidence before him and drawn the proper inferences he would have come to a different conclusion, as contended by the appellants' Counsel."

They therefore dismissed the cross-appeal. The appeal was allowed in the following terms-"Consequently, this appeal must be allowed.

The judgment of the High Court is therefore set aside, and in its place is substituted a Declaration of the Statutory Right of Occupancy sought in respect of the land in dispute, as claimed, with an award of nominal damages of N50 against each respondent and the 2nd defendant for trespass; and there will be order for an injunction restraining them, their servants, agents and privies, from further acts of trespass to the land.

The appellants are entitled to costs in the High Court assessed at N250, and in this Court assessed at N200 only, against the respondents and the 2nd defendant, jointly and severally."

It is against that decision that 1st defendant has appealed to this Court. Nine grounds of appeal were filed by the appellant and four issues for our determination were formulated in the appellants' brief of argument. However, the 6 issues for determination contained in the respondents' brief of argument are more lucid and they read as follows-

"(i) Whether there was in fact conflict between the cases made out by the Defendants as found by the Court of Appeal on page 162 lines 19 to the end and page 163 lines 1-33 of the record.

(ii) If so, whether the learned trial Judge could properly come to the decision that he could not choose between the case of the Plaintiffs and the Defendants without a resolution and reconciliation of the conflict between the case (sic) of the Defendants.

(iii) Whether the Court of Appeal was justified in holding that it was improper for the learned trial Judge to treat the case of the Defendants together without a reconciliation of the conflict.

(iv) Whether the Court of Appeal was right in evaluating the evidence on record itself when it was found that the learned trial Judge had erroneously done so.

(v) Whether there has been a misdirection which has occasioned any miscarriage of justice on the part of the learned trial Judge to warrant the Court of Appeal setting aside his judgement as done in its judgment pages 149-170 of the record.

(vi) Whether the Court of Appeal's formulation of issues for determination was not based on issues raised in the Grounds of Appeal and brief of the plaintiff at the Court of Appeal,"

With regard to the first issue for determination learned Counsel for the appellant argued that there was no conflict in the traditional evidence called by the 1st and 3rd defendants! He submitted that the traditional evidence was straight forward and consistent and therefore learned Justices of the Court of Appeal were in error and mis-directed themselves when they held that there was irreconcilable conflict in the traditional evidence adduced by the 1st and 3rd defendants which the trial judge failed to resolve and that failure prevented the learned trial Judge from making accurate evaluation of the evidence before him.

In reply learned Counsel for the respondents submitted that there was conflict between the evidence of 1st defendant and that of the 3rd defendant which was not resolved by learned trial Judge before he came to the wrong conclusion that he could not choose between the cases of the plaintiffs and the respondents.

As already stated the land in dispute is verged red in exhibit A. The area of the land in dispute trespassed upon by the 1st defendant is verged green, and that trespassed by the 3rd defendant is verged yellow, In paragraph 3 of her Statement of Defence, quoted earlier in this judgment, the 3rd defendant averred that Ogunfalu and Bamimeke jointly acquired the land in dispute verged red in exhibit A. That piece of land comprised the portions allegedly trespassed upon by the 1st defendant and the 3rd defendant (verged green and yellow respectively) and other portions not the subject of claim by the 1st and 3rd defendants. But the 1st defendant in paragraph 4 of his Amended Statement of Defence, which had been quoted herein earlier, pleaded that the area verged green in exhibit A was settled upon by Bamimeke Akanbi alone. Surely there is in that respect clear inconsistency between the averments of the 1st and 3rd defendants. The learned trial Judge held that these differing averments were established by the testimonies of the witnesses called by the defendants. The question is: was the land in dispute settled upon by Ogunfolu and Bamimeke-as alleged by the 3rd defendant or was it settled upon by Bamimeke Akanbi alone as averred by the 1st defendant? This is the important conflict in the defence case which the learned trial Judge did not resolve before comparing the traditional evidence of the plaintiffs, which he found to have remained unshaken under cross-examination; and yet he came to the conclusion-"I do not find much to choose from between the rival and conflicting evidence of tradition led by the parties."

The second issue for determination has already been disposed of in the foregoing part of this judgment. By treating the defence case as one, learned trial Judge had compounded the confusion that had already existed in the pleadings and evidence called by the 1st and 3rd defendants in respect of their traditional evidence.

It is pertinent to emphasise that in civil proceedings the standard of proof is based on the balance of probabilities. Therefore a careful comparison between the plaintiffs' evidence on their traditional history and the traditional evidence called by the 1st and 3rd defendants will show that the case made by the plaintiffs is stronger. Not only did they call their boundarymen who established their title of the land in dispute but the plaintiffs also proved that their ancestor was not a tenant on the land in dispute and that the land was owned by him. Therefore, as in the words of the learned trial Judge quoted earlier "it is manifest that where other facts do not detract from the weight of evidence of boundarymen which is clear and cogent, the evidence of boundarymen carries much weight."

As the evidence on the traditional history of the defence was inconsistent and conflicting, and no boundarymen were called by them; the learned trial Judge should have believed the traditional evidence of the plaintiffs since in his words "their assertion that the land in dispute belonged to Ojo Sango remained unshaken in cross-examination" of their boundarymen. There was nothing in the totality of the evidence before him which made it unsafe for the learned trial Judge to believe the traditional evidence adduced by the plaintiffs. As he himself said-"I cannot reject their evidence unless there is anything on the totality of the evidence (before me) which makes it unsafe to rely on their evidence."

By the acceptance of their traditional evidence, it was enough eo ipso for their claim for declaration to be granted-See Idudun v. Okumagba, (1976) 1 N.M.L.R. 200 at p. 210; (1976) 10 S.C.227 at p. 246. It was not therefore necessary for the trial judge to look for evidence of exclusive possession of the land in dispute before the declaration sought by the plaintiffs could be granted.

Once it has been established that the plaintiffs had better title to the land in dispute and the defendants were on the land, without the permission of the plaintiffs, then the claim by the plaintiffs for trespass against the defendants had been established and ought to have been granted.

In the light of the foregoing there is no doubt that the learned trial Judge did not evaluate the evidence before him properly and that occasioned miscarriage of justice. The Court of Appeal had, in my opinion acted rightly in re-evaluating the evidence and coming to the conclusion which it did as shown earlier in the judgment. See Akinola v. Oluwa, (1962) All NLR Volume 1 Part 2 at p. 227; Ajadi v Olanrewaju, (1969) 1 All NLR 382 at p. 385; Wolucham & Anor. v Simon Gudi, (1981) 5 S.C. 319 and Ebba v Ogodo, (1984) 4 S.C, 86 at p. 98.

The foregoing disposes of all the issues for determination but the last. Learned counsel for the defendants complained against the manner in which the Court of Appeal, relying on the grounds of the appeal and cross-appeal before it, formulated the issues for determination. In my opinion there is no substance in the complaint. The plaintiffs filed nine grounds of appeal in the Court of Appeal, while the defendants filed 4 grounds of cross-appeal. What the Court of Appeal did, was to summarise the points raised in the grounds by formulating the issues as follows-

"The issues which arise from the appeal and cross-appeal can be thus put-

1.      Whether the trial Judge rightly held that there was nothing to choose between the appellants' and respondents traditional evidence on settlement, having believed that of the appellants and the evidence of their boundarymen, when the same cannot be said of the respondents' case; and whether on the basis of a proper evaluation of all the evidence, having regard to the contradictions in the respondents' case which the trial Judge failed to resolve, the judgment is correct. (Grounds 1, 3, 5, 6, 7 and 9 and Grounds (i) and (ii) of the cross-appeal refer)

2.      Whether the trial Judge came to a conclusion contrary to his findings by acting on evidence supplied under cross-examination on facts not pleaded and in which issues had not been joined and specifically on the evidence of PW6. Under cross-examination that Akinola gave him a portion of the land in dispute to farm upon (Ground 2 refers).

3.      Whether the trial Judge ought not to have given judgment against the 2nd defendant who filed no pleadings when the claims against the defendants was joint and several (Ground 4 refers).

4.      Whether there is need for proof that, in a claim for a Statutory right of Occupancy of the land in dispute, the land is in an urban or rural area, without more (Ground 8, and Ground (iii) of the cross-appeal).

5.      Whether the decision of the trial Judge to non-suit the appellants was the correct one (Ground (iv) of the cross-appeal)."

As can be seen the Court of Appeal merely put together under one head a precise of all the grounds of appeal and cross-appeal that raised the same points. And in dealing with the issues it recognised that some of them were very wide. For example it observed in respect of issues 1 and 2 thus-

"The issues thus raised as summarised in Issues 1 and 2 above are so wide as to encompass almost all the findings of the trial judge and his reasons therefore. I propose to deal with the most relevant ones."

In fulfilling this pledge it extensively dealt with the findings made by the learned trial Judge. I see no miscarriage of justice which had been occasioned as a result of the exercise. The complaint is therefore untenable.

Accordingly, I see no merit in the appeal and it is hereby dismissed with N500.00 costs to the respondents. The judgment and orders made by the Court of Appeal are hereby confirmed.

Nnamani, JSC. I have had the advantage of reading in draft the judgment just delivered by my learned brother, UWAIS, J.S.C. and I am in entire agreement with his reasoning and conclusions.

It is pertinent to mention at the beginning of this concurring comments that in this Suit the 2nd Defendant did not defend the suit while the 3rd defendant did not appeal against the judgment of the Court of Appeal. I only mention this as it was the disjointed and often conflicting pleadings and evidence of these defendants that the learned trial Judge placed against the plaintiffs' case before deciding on a non-suit. Another issue worth mentioning, with all respect, is the confused nature of the learned trial Judge's findings.

On traditional evidence for instance he said at page 74 of the record:-

"Apart from these remarkable admissions on both sides there is nothing to choose between the evidence in support of the plaintiffs' case and that of the defendants as to the members of the various families whose names were rattle (sic) as having farmed on the land"

Yet the learned trial Judge went on-

"I need only pause to add quickly that I find it not proved that Ojo Sango was on the land as tenant. The picture which emerged from the totality of the evidence and which I find as a fact is that-

(1)     Ojo Sango is reputed in the neighbourhood to own the land in dispute.

(2)     Ojo Sango used the land and built a hut thereon"

Ojo Sango was the ancestor of the plaintiffs and if the learned trial Judge made these findings, it is difficult to see the basis of his decision that plaintiffs had not established traditional evidence. The alleged presence of Akinola and Madam Fehintola, the 3rd defendant's mother, on the land, was of no moment having regard to the conflict in the case of the defendants, and more important, the fact that the evidence of the 3rd defendant appeared to relate to another land not the land in dispute. The learned trial Judge also showed confused thinking when he held as follows:

"The plaintiffs have not shown such exclusive possession as would lend aid to the evidence that Ojo Sango was the owner of the land"

This was just before he rejected the traditional evidence of both parties.

As my learned brother has rightly referred to, traditional evidence is certainly one of the 5 ways by which title to land can be established (See Idundun (1976) 9 and 10 S.C. 227.) The principle established in Ekpo v. Ita 11 N.L.R. 68 (that is exclusive possession and acts of possession for so long that an inference can be drawn that one is owner) is indeed a different and separate method of establishing title. Of course if the evidence of tradition led by both sides is inconclusive, then the Court will have recourse to recent acts of possession and ownership. See Kojo v. Bonsie (1957) 1 W.L.R. 1223.

On the traditional evidence and the evidence of the boundary men, the plaintiffs were entitled to title. The Court of Appeal (per Omololu-Thomas, J.C.A.) was in my view eminently right when it concluded thus:-

"Clearly from the foregoing and in my view, there is strong basis for the complaints of the appellant's counsel. After the findings of fact in support of the appellants' traditional history, the trial judge proceeded to consider as against the appellants traditional evidence and acts of possession, the acts of ownership alleged by the respondents and in the process concluded that the appellants have not shown such exclusive possession as would lend aid to the evidence that Ojo Sango was the owner of the land, even after holding that the appellant could succeed on traditional evidence alone. This seems to me wrong .

He ought in view of the pleadings ... to see whether from the totality of the evidence either of the parties had established their respective claims to ownership by traditional evidence, and if, he finds the appellant's case clear and cogent he ought to have found for them"

For these reasons, and the more detailed reasons in the lead judgment, I too would dismiss the appeal. I abide by all the orders made by my learned brother, UWAIS, J.S.C.

Oputa, JSC. In the trial Court the Plaintiffs claimed:-

(i) a Declaration of Statutory right of occupancy to the land in dispute, viz the entire area shown on plan OG 477/80 tendered as EX.A.

(ii) Damages for trespass estimated at N500.00. The area allegedly trespassed upon by the 1st Defendant is verged green in Ex. A while the area trespassed upon by the 2nd and 3rd Defendants is verged yellow.

(iii) Perpetual Injunction restraining the Defendants, their Servants, agents and privies from further trespass to the land.

Pleadings were filed and exchanged among the Plaintiffs, the 1st Defendant and the 3rd Defendant. On the pleadings it is relevant at this stage to note that:-

(a)     The 2nd Defendant filed no pleading at all and took no part whatsoever in the ensuing legal battle.

(b)     The remaining Defendants (1st and 3rd) did not seem to have a common root of title and so they did not file one Statement of Defence. They filed different and separate Statements of Defence.

(c)     The Plaintiffs' root of title was pleaded as First Settlement of a virgin land by their ancestor and predecessor in title Ojo Sango and continued and continuous acts of possession by Ojo Sango and his descendants up to the present Plaintiffs (see paras. 4-12 of Statement of Claim).

(d)     The 1st Defendant pleaded as his root of title conquest by a warrior Bamimeke Akanbi whose descendants in 1970 sold their family property - the land in dispute-to the 1st Defendant.

This sale was covered by a deed of conveyance registered in 1976 as No. 45 at page 45 in Volume 1988 in the Land Registry Ibadan.

(e)     The 3rd Defendant pleaded as his root of title in para. 8 of his Statement of Defence sale of "Portions of the land in dispute to his (3rd Defendant's) mother called Fehintoha for the sum of N20.00 in the presence of witnesses."

(f)     In paragraph 12 of his Statement of Defence the 3rd Defendant pleaded that "over 5 years ago, Oguntoyinbo, Ayoola and 3rd Defendant sold" a portion of the land in dispute to the 2nd Defendant for the sum of N300.00 who had since erected a building on the land in dispute undisturbed."

It was on the above pleadings that the case was contested in the trial Court.

After due trial on relevant evidence the learned trial Judge Yinka Ayoola, J. (as he then was) dismissed the Plaintiffs claim for trespass and entered a non-suit with regard to the claims for declaration and injunction.

Both sides appealed to the Court of Appeal, Ibadan Division. In their appeal the Plaintiffs sought an Order of the Court of Appeal reversing the judgment of Ayoola, J. and granting all the three claims of the Plaintiffs in the trial Court. The 1st Defendant cross-appealed asking the Court 5 of Appeal to set aside the trial Court's Order of a Non-Suit and replace same with an Order for Dismissal of the claims for declaration trespass and injunction. There does not seem to be any cross-appeal to the Court of Appeal either by the 2nd or the 3rd Defendants as no Notice of such Appeal was filed by them or on their behalf.

The Court of Appeal, Ibadan Division per Omololu Thomas, J.C.A., in a very well considered judgment, to which Uche Omo and Onu, JJ.C.A. concurred, ended as follows at p.169 of the record of proceedings:-

"A dismissal of the action is out of the question. The Plaintiffs' case ought to have succeeded. All the grounds of appeal succeed...Having held that the appeal succeeds the cross-appeal ought to be dismissed.

Consequently, this appeal must be allowed. The judgment of the High Court is hereby set aside, and in its place is substituted a Declaration of the Statutory Right of Occupancy sought in respect the land in dispute, as claimed, with an award of nominal damages of N50 against each respondent and 2nd defendant for trespass and there will be order for an injunction restraining them, their servants, agents and privies from further acts of trespass to the land."

The Plaintiffs therefore won in the Court below. Does this also mean that the Court of Appeal reversed the findings of fact of the learned trial Court?

The 1st Defendant has now appealed to this Court. Three closely related Issues for Determination were formulated in the 1st Defendant/Appellant's Brief of Argument. These issues challenge the way the Court of Appeal dealt with the findings of fact of the trial Court.

I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Uwais, J.S.C. and I am in complete and total agreement with him that the Court of Appeal was right in reversing the verdict of the trial Court and in granting all the Plaintiffs' claims, Consequently I agree with him that this appeal by 1st Defendant/Appellant should be dismissed.

As the issue whether and when an appellate Court should reverse the findings of a trial Court is so very important to appellate practice, it may be necessary to look at some of the principles distilled from the various decisions of this Court which apply to the facts and surrounding circumstances of this case to find out whether or not the Court of Appeal followed those principles in this case. It is here that I will like to add a few comments of my own in emphasis of the points so ably made in the lead judgment.

1.      Ordinarily it is not the function of an Appellate Court to disturb the findings of fact of the trial Court-the Court that saw the witnesses, heard them testify, and believed one side while disbelieving the other. This is the first principle-the general principle: Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336; Fatoyinbo & Ors. v. Williams alias Sanni & Ors. (1956) 1 F.S.C.87 at p. 89; A.M. Akinloye & anor. v. Bello Eyiyola & ors. (1968) N.M.L.R. 92 at p.95; Bologun v. Agboola (1974) 10 S.C.111

This general principle takes many things for granted. Where the finding on any issue is based on the credibility of witnesses, this general principle presupposes and takes for granted that where there were conflicts in the testimony of those witnesses, the trial judge first resolved those conflicts, before arriving at his findings. It also presupposes that there was no misdirection of himself by the trial judge. In the case now on appeal there were complaints of misdirection and non-resolution of conflicts in the evidence of Plaintiffs and their witnesses on one side and that of the Defendants and their witnesses on the other side. The Court below went in these and justifiably too: see Watt (or Thomas) v. Thomas (1947) 1 All. E.R. 582 at p. 584

2.      Where the trial Court gave reasons for making the findings it made, an Appellate Court will be fully in order if it proceeds to look at those reasons and if the reasons are not satisfactory, as in the case on appeal, the Appellate Court will come to the conclusion (as was done in this case) that any advantage enjoyed by the trial Court by reason of having seen and heard the witnesses was not and could not be sufficient to explain or/and justify the trial Court's conclusions. An appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial Judge. In this case the Court of-Appeal found that even on the findings made by the learned trial Judge himself, he should have granted the Plaintiff's claims. The Court below was amply justified in taking this view of the evidence: see Lawal Buraimoh Fatoyinbo v. S.A. Williams (1956) 1 F.S.C.87 at p. 89.

3.      Where the real issue does not revolve around the credibility of the witnesses who testified, as much as on the inferences to be drawn from proved or admitted facts, or facts as found by the trial Court; an appellate Court has full liberty to draw its own inferences and should not be deterred from that duty to thus make up its own mind, not disregarding, of course, the judgment appealed against but giving it, its due weight:-see Benmax v. Austin Motor Co Ltd (1955) A.C.370 at p.375: (1955) 1 All.E.R.326 at p. 327.

4.      Where the trial judge proceeded on a wrong assumption as to the onus of proof this misapprehension and wrong assumption may affect the learned trial Judge's views on the evidence and on his conclusions. There an appellate Court will be perfectly justified to intervene: In re Moulton, Graham v. Moulton 22 T.L.R. 380 at p. 384: Joe Sandy v. Hotoqua 14 W.A.C.A. 18 at p.20.

5.      Where the trial Court did not consider the entire evidence there, its conclusions are bound to be faulty and erroneous and an appellate Court will intervene to correct such error. This was what the Court below did in this case.

I will now consider the evidence, the findings of the trial Court and the reaction of the Court of Appeal to all these in the face of the principles stated above.

Proof of Title to Land:

At pp.71/72 of the record the learned trial Judge stated accurately "the principle applicable to such a case as this" namely:-

"1.     The Plaintiffs must succeed on the strength of their case and not on the weakness of the defence, even though where any aspect of the defendants' case supports the Plaintiffs' case the plaintiffs will not be deprived of the advantage of such a support.

2.      The plaintiffs are entitled to rely on traditional evidence alone to succeed in their case: Stood of Abinabina v. Enyimadu 12 W.A.C.A. 171 at p. 174.

3.      If the evidence of tradition is inconclusive the case must rest on question of fact, but the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous enough to warrant the inference that the plaintiffs were exclusive owners; Ekpo v. Ita 11 N.L.R. 68."

The above principles were rightly stated by the learned trial Judge but were wrongly applied by him due in part to his doubt whether or not "Ekpo v. Ita and Stool of Abinabina are not in conflict."

In Idundun & ors. v. Okumagba (1976), 9 & 10 S.C. 227 at pp.246-250 this Court set out the five different ways of proving ownership of any land in dispute in our Courts

1.      By traditional evidence.

2.      By production of documents of title duly authenticated, unless they are documents twenty years old or more, produced from proper custody.

3.      Acts of Possession in and over the land in dispute-extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons thus in possession are the true owners.

4.      Acts of long possession and enjoyment of other land so situated and connected with the land in dispute by locality or similarity that the presumption under Section 45 of the Evidence Act Cap 62 of 1958 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.

5.      Proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

What is to be noted and re-emphasised is that the party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relies on more than one root, that is merely to make assurance doubly sure. He does that, ab abundatia cautella. And this is where the learned trial Judge, with respect, erred.

At p. 70 lines 24-36 of the record of proceedings the learned trial Judge correctly stated the plaintiffs' root of title as Acquisition by First Settlement. "The plaintiffs' case is that the land in dispute (i.e. the land edged red on Ex.4) was settled on by Ojo Sango, their ancestor..." and that this land descend to the children of the said Ojo Sango namely Sangotayo and the grand children i.e. the present Plaintiffs. After considering the evidence led in proof of the parties' title the learned trial Judge held at p.72 lines 15 to 20:-

"suffice it to say that I have carefully considered their evidence. The evidence called by the plaintiffs in relation to acquisition of the land by Ojo Sango is very much in line with their pleadings. The same cannot be said of the evidence of the defendants .

It is significant that all boundarymen testified for the plaintiffs to the effect that the land in dispute belonged to the plaintiffs' ancestor Ojo Sango."

And at p.73 of the record the learned trial Judge continued:-

"In land matters such as this the evidence of boundarymen should be carefully regarded. In the instant case Alimi Adisa (2nd P.W.)....... Lasisi Asa (3rd P.W.), Akinloye Amole (4th P.W.), and Popoola Abegunde (6th P.W.) all gave evidence supporting the plaintiff's case their assertion that the land in dispute belonged to Ojo Sango remained unshaken in cross-examination. I cannot reject their evidence .... The defendants' case is devoid of the evidence of neighbouring land owners."

And again at p.74 line 25 and p.75 lines 1-2 the learned trial Judge specifically made two important findings:-"1.        I accept the evidence that Ojo Sango built a house/hut on the land (2nd P.W.'s evidence)" p.74 line 25; and

2.      ...I find it not proved that Ojo Sango was on the land as a tenant."

The logical conclusion and inference to be drawn from the learned trial Judge's observations at p.73 of the record and his findings at pp.74 and 75 is that the Plaintiffs succeeded in proving their title to the land in dispute by their traditional evidence. Any other contrary conclusion will be against the natural drift of the evidence; against the observations made as to the strength of the Plaintiffs' case based on traditional evidence and the corresponding weakness of the Defendants' traditional evidence; and more importantly, against the significant and explicit findings of the trial Court

But why did the trial Court enter a non-suit rather than grant the Plaintiffs the declaration they sought on the basis of their proof of that title by traditional evidence which was accepted by the trial Court? Apparently, and with respect, the learned trial Judge fell into the same error against which the Privy Council warned in The Stool of Abinabina's case supra "that frequent and positive numerous acts within living memory are essential to justify the inference of exclusive ownership is not well-founded. In the same case Lord Cohen held that "the Plaintiff's title would have been accepted solely on the basis of traditional evidence" as was done in Kuma v. Kuma 5 W.A.C.A.4 and Ado v. Wusu 4 W.A.C.A.96 and 6 W.A.C.A.24.

In this case on appeal both the pleadings and the evidence abundantly show that the Plaintiffs relied primarily on their Traditional Evidence and not on their Acts of Possession which were purely consequential, secondary, and accessory. And accessorium non ducit, sed sequitur suum principal. (the necessary does not lead but follows its principal). Traditional evidence of Acquisition and First Settlement by Ojo Sango was the fons et origo (the foundation and origin) of the Plaintiffs' title and not the acts of possession.

I repeat once more that the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the Full Court per Webber, J. in Ekpo v. Ita supra (that the onus is on the plaintiffs claiming a decree of declaration of title to land to prove acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners) applies, is erroneous. That dictum will only apply where the Plaintiff's root of title is Acts of Possession. It will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title, pleaded and relied upon is Traditional Evidence (as in this case). In either case acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases once, and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition. No. That is not the law: Mumuni Abudulai v Ramotu Manue (1945) 10 W.A.C.A.172 and Moselewa Thomas v. Preston Holder (1946) 12 W.A.C.A.78. Unfortunately Ekpo v. Ita supra is one of our misleading cases. It has misled many a judge and it misled the learned trial Judge in this case who thought that "it may be worthwhile sometimes to see whether Ekpo v. Ita and the later case of Stool of Abinabina are not in conflict." Of course they are not in conflict. The Court of Appeal was therefore right in holding that on his findings:-

(1)     that Ojo Sango was reputed in the neighbourhood to own the land in dispute; and

(2)     that Ojo Sango used the land and built a hut thereon not as a tenant but as owner thereof

"the Plaintiffs' case ought to have succeeded."

One final word on Ekpo v. Ita supra. Anyone who pleads Acts of possession as his Root of Title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying-"I do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner." Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved. in such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and there from determine on whose side the presumption in Section 145 Evidence Act will operate.

Onus of Proof

A careful consideration of the authorities and decided cases amply show that there is no onus on a Plaintiff who claims title by Traditional Evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he is exclusive owner. When a Plaintiff has proved his title directly by Traditional Evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive. In the case on appeal where the trial Court held that the traditional evidence led was conclusive, there was no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the plaintiffs. That will be wrong. Cases like Ekpo v. Ita supra or Kojo v. Bonsie (1957) 1 W.L.R. 1223; W.A,L. 257 deal with cases where there is a conflict of traditional history. In such cases the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. Such a situation did not arise in this case since the trial Court was satisfied with the Plaintiffs' Traditional evidence but not with that of the Defendants'

Case against the 2nd Defendant

He bought from the 3rd Defendant. He did not file any separate Statement of Defence. He did not file jointly with the 3rd Defendant a Statement of Defence. He did not appear at any stage of the proceedings. And yet the Plaintiffs' claims against him were non-suited or dismissed. The Court of Appeal was therefore right when it held at p.167 that:-

"Judgment ought to have been given against the 2nd defendant in terms of their claims on the merit."

In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my learned brother Uwais, J.S.C. which I hereby adopt as mine, I am satisfied that the Court below was right in reversing the judgment of the trial Court and in granting all the Plaintiff/Respondents' claims. I will therefore dismiss the 1st Defendant/Appellant's appeal and I will abide by all the consequential orders made in the lead judgment.