(1961) All N.L.R. 40


Division: Federal Supreme Court

Date of Judgment: 6th February, 1961

Case Number: FSC 64/1960

Before: Brett, F.J.J

             Taylor, F.J.J

             Bairamian, F.J.J


The plaintiff claimed a declaration of title to a piece of land and an injunction against trespass. His case was that it was given to him by his father, who had it from his ancestors, one of whom, who never became Bale of Kuta, had made a grant of the land to an ancestor of the defendant, who, like his ancestors, had paid ishakole to the plaintiff and his ancestors. The defendant's case was that the land had been virgin forest opened up and that no ishakole had been paid.

There had been a Fulani invasion; landlords and tenants fled. After the invasion the Telemu and Ashamu people occupied the land, and tribute was paid to the Alashamus. After the plaintiff's father became Bale of Kuta, he sued the Alashamus in 1930 to restrain them from entering his land, and won; and thereafter tribute was paid to him. The defendant-respondent's argument was that he had sued for and on behalf of the people of Kuta as their Bale.

In 1954 the Bale of Kuta of the day sued the plaintiff of the present case about another piece of land (in the neighbourhood of the land in dispute in the present case) claiming that in 1930 the present plaintiff's father was suing in a representative capacity; the decision went against the then Bale of Kuta. The entire

proceedings of the 1954 case were put in by the plaintiff, but it was only one page of the High Court Judgment that was referred to in the address of his Counsel.

The trial Judge (in the present case) accepted the plaintiff's statement that after the 1930 case tribute was rendered to his father by the defendant's predecessor-which meant that it was in recognition of overlordship-but went on to say that the decisive issue was whether the ishakole paid to the plaintiff's father was paid to him in his private capacity or as Bale of Kuta; the Judge said that on this point the evidence was equivocal throughout, and dismissed the action. The plaintiff appealed.


The pleadings raised no question on whether the land claimed by the plaintiff was part of the Bale's "stool property" or communal property, neither was there any evidence in the case, which pointed to the land in dispute being part of the "stool": on the pleadings and the evidence, the trial Judge having found that ishakole was paid to the plaintiff's father by the defendant's predecessors, the Judge should have decided that the title was in the plaintiff's father, from whom it descended to the plaintiff.

But as the defendant was a tenant under native law and custom, paying ishakole, there being no claim for forfeiture, the claim for an injunction against entering on the land must fail.


Attention is drawn to section 34 and subsection 48 to 55 of the Evidence Ordinance on the conditions under which statements, evidence, proceedings, and Judgments in previous matters and suits are admissible in subsequent suits, in the hope that proceedings, or parts thereof, which are of no evidential value, or are irrelevant inadmissible, will not be put in evidence hereafter.

Appeal allowed in part.

APPEAL from High Court of Western Region.

Okusaga for Appellant.

Cole for Respondent.

The following Judgment was delivered:-

Taylor, F.J.:-This is an appeal from the Judgment of Irwin, J. of the High Court of the Ibadan Judicial Division dismissing the claim of the plaintiff/appellant for a declaration of title to land at Agbowuyade farmland and an injunction to restrain the defendant/respondent and his servants from further acts of trespass on the said farmland.

It was the appellant's case in the court of trial that his ancestor, Morolahun begat Tegbosun, Adelumo and two others whose names are not important for the purposes of this appeal. Tegbosun begat Akinsunwon who begat Oyelude the present Bale of Kuta. Adelumo begat Olawunmi who begat Adeyigbe the father of the present appellant. That the land in dispute belonged personally to Olawunmi who never at any time became Bale of Kuta. That before the Fulani invasion of the 19th Century, one Dada, who was admittedly also known as Agboyade or Agbowuyade on requesting Olawunmi to make a grant of land to him, was given the area in dispute to farm on payment of ishakole which he paid up till Olawunmi's death. This Dada begat Fabode who begat Emmanuel Adewusi the respondent's father. The appellant further contended that the respondent's ancestors and the respondent paid ishakole to the appellant and his ancestors. It is common ground that the land in dispute was vacated during the Fulani invasion when both landlord and tenants fled away. It is also common ground that after the invasion the land was occupied by the Telemu and Ashamu people. The first step taken by the appellant or his ancestors to re-possess the land was when the appellant's father became Bale of Kuta and sued the Ashamu people in suit 25/30. After this Judgment the people placed on the land by the Ashamu's began to pay ishakole to the appellant's father and, after his death to the appellant. The appellant contends that the respondent's ancestors also paid ishakole to his father and himself after this suit until Oyelude the present Bale persuaded them not to do so when he took out an action suit No. 1/53/54.

On the other hand, the respondent contended that the land was acquired as virgin land by his great ancestor Agbowuyade. The only person in the genealogical tree of the respondent of any importance for the purpose of this appeal is Fabode the father of Adewusi. The occupation of the land by him at one period of time is common ground. The respondent, however, denies that his ancestors or himself ever paid ishakole to the appellant or his ancestors. As regards suit 25/30, the respondent says that the action was brought by the appellant's father for and on behalf of the people of Kuta.

Before dealing with the arguments of Counsel in this appeal, this might be a convenient time to comment on a practice which is becoming too common in Courts of Trial. The proceedings in the High Court, exclusive of the exhibits, occupied some 48 pages in the record of appeal, whereas the exhibits occupied the next 172 pages from 49 to 220, out of which 164 pages were devoted to the record of proceedings in suit 1/53/54. I must here correct an error made by Mr Okusaga for the appellant that those proceedings were tendered at the trial by Counsel for the respondent. They were not. They were tendered through the plaintiff's fourth witness, a clerk of the Ibadan High Court called at the instance of the appellant and were marked exhibit "C." The record in fact shows that Mr Cole for the present respondent objected to their being tendered on the ground that their relevance had not been shown. The proceedings were tendered in bulk without any reference being made to any particular portion of same at the time they were tendered. During the address of Counsel for the appellant there was only one reference to them and that was in respect of one page in the Judgment of the High Court. I would draw attention to section 34 and subsection 48 to 55 of the Evidence Ordinance as showing the conditions under which statements evidence, proceedings and Judgments in previous matters and suits are admissible in subsequent suits in the hope that in future this all too frequent practice of tendering parts of proceedings which are of no possible evidential value and in some cases are utterly irrelevant and inadmissible will cease. At the hearing of this appeal with the exception of a few passages in the Judgment of the High Court contained in exhibit "C", no further use was made of this 164 page exhibit. This must and will reflect itself in the costs to be awarded in this appeal.

There are five grounds of appeal filed with the Notice of Appeal and their effect may be summarised under two heads as follows:-

1. That the learned Trial Judge having found that ishakole was rendered to plaintiff/appellant's father by defendant/respondent's predecessor failed to understand the legal nature of such payment under Native Law and Custom.

2. That the Trial Judge failed to draw the proper legal inferences from suits 25/30, 1/53/54 and FSC 148/1956.

The issue in this appeal, as indeed in the High Court, was simply this: was the land in dispute the property of the plaintiff/appellant Bello Adeleke? On the issue of payment of ishakole the Trial Judge held as follows:-

After the settlers had been driven away by the Fulanis tribute was exacted from their successors by the Alashamu including, I find the defendant's ancestors.

Now, stopping there for a moment. If I understand the Trial Judge correctly, the effect of this passage is, that accepting the evidence, which is common to both parties, that the Fulanis drove the original settlers away; after the invasion the tenants on the land, including the defendant's ancestors, paid tribute to the Alashamu people, who rightly or wrongly had become the overlords of the land. The Judgment then goes on to say that:-

I accept the plaintiff's statement that consequent upon the proceedings in exhibit "A" tribute was rendered to his father by the defendant's predecessors.

The proceedings in exhibit "A" consisted inter alia of a claim by Adeyigbe, Bale of Kuta against Alashamu for an injunction to restrain defendant "from entering plaintiff's farm situate at Kuta known as plaintiff's farmland." The effect of the passage just quoted from the Judgment of the Trial Judge is that the plaintiff, having obtained Judgment, began from then onwards to receive tribute from the respondent's predecessors. Such payment of tribute to the Alashamu and to the appellant's predecessor draws with it the inference that it was in recognition of their overlordship or ownership. The learned Trial Judge did not hold a different view on this point, but went on to say that:-

The decisive issue is this, I think, whether the ishakole paid to Adeyigbe, the plaintiff's father was paid to him in his private capacity or as Bale of Kuta.

In other words, was the ishakole paid to Adeyigbe, as owner in his personal capacity, in his own right, or by virtue of his office as Bale, in which case the property would either be "stool property" or communal property. The Trial Judge says that on this point the evidence was "equivocal throughout." The position before the Trial Judge was that both the appellant and the respondent claimed this property as their personal property, but the Trial Judge's finding of payment of ishakole by the respondent's ancestor is against the respondent's contention of ownership of the land being in him. Now, considering the appellant's position. In paragraphs 6 and 7 of his Statement of Claim he pleaded and later adduced evidence to the effect that Olawunmi, his grandfather, who, as I have said before, never became Bale, owned the land in dispute, and in this he was supported by the second and fifth witnesses for the plaintiff. There are also the Judgments in suits 25/30 and 1/53/54 which were confirmed on appeal FSC 148/1956. The former fixed the boundary between Adeyigbe, Bale of Kuta and Ashamu; the latter discountenances the contention of the Bale of Kuta of the year 1954 that, in the earlier suit of 1930, Adeyigbe was suing in a representative capacity and indicated that Adeyigbe in 1930 was claiming his own personal property. I would here refer to one passage in the Judgment in suit 1/53/54, which reads thus:-

It appears to me that to arrive at a right conclusion whether or not Bale Adeyigbe (first defendant's father) sued the Alashamu for the land in dispute for himself or for the Kuta ruling houses and family, one will have to look carefully at the proceedings in the case-Exhibits "C" and "E." Even then it is not easy to arrive at a conclusion from the proceedings as the title of the parties were used throughout; but what I think is curious in the case and rather supports first defendant's version of it is that he (first defendant) went and gave evidence for his father who was too old to attend. He stated that as his father was old he went and took out the summons and he gave evidence in court on his behalf. This was in 1930. The first defendant is, in my own estimation, barely 50 years of age now. One would have thought if that case in 1930 concerns all the Ruling Houses of Kuta, and they all subscribed to bring the action, an elderly man in the family (the Ruling Families) and not a young man of barely 25 years of age would be sent to present their case. Further, there is no indication in the summons that the plaintiff in the case (first defendant's father) sued in a representative capacity.

It is true that the present respondent was not specifically made a party to both of those suits, though his ancestor Fabode was a witness in the former suit, but the point at issue after the learned Trial Judge had made the finding about ishakole having been paid by the respondent, was as to whether the appellant was the owner or whether the property was "stool property" or communal. These two Judgments were therefore relevant on that point. Further, there is no evidence which points to the land in dispute being part of the "stool." The pleadings raised no such question. The plaintiff claimed that the land was his by gift from his father, the defendant averred that it was the private property of himself and his ancestors. This defence having failed on the findings that tribute was rendered to appellant's father by respondent's predecessors the learned Trial Judge should have decided that the title was in the appellant's father from whom it descended to the appellant. The proper course on the evidence was to have granted the appellant the declaration of title as sought.

In my view the appellant is entitled to succeed in this appeal on the first part of his claim in the court below. On the second part of his claim, i.e, for an injunction, Mr Okusaga concedes as he must that once the respondent is held to be a tenant under Native Law and Custom paying ishakole, the claim for an injunction must be dismissed, the proper remedy for the purpose of regaining possession from such tenant being one for a forfeiture of the land.

The result is that the Judgment of the Lower Court is set aside only on the issue of a declaration of title and in its place Judgment will be entered for the appellant for a declaration of title to the area in dispute. The appeal fails on the claim for an injunction.

In assessing costs I have taken into account the fact that the appellant has only partially succeeded in the appeal and the matter mentioned earlier as to the exhibits copied in the record. On this latter point the court may in future feel disposed to order that costs incurred unjustifiably in this manner be paid by Counsel.

The appellant is entitled to his costs in the Lower Court which I assess at 60 guineas, and costs in this Court which I assess at 40 guineas.

brett, F.J.:- I concur.

bairamian, F.J.:- I concur.


Appeal allowed in part.