Morinatu .O. Oduka And Others V A. Kasumu And Others (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C

Delivering the Judgment of the Court

The appellants have appealed to this Court against the judgment of Fakayode, J. given at the High Court, Ikeja, on the 28th May, 1965. They were the defendants in an action instituted against them by the respondents who were the plaintiffs in the court below – Suit No. HK/63/61. as on the original writ of summons the claim of the plaintiffs was a follows:-

“(a)Declaration of title under native law and custom to a piece or parcel of land known as Bashua village in the Western Region of Nigeria, a plan of which will be filed in this court.

(b)An Injunction restraining the defendants, their servants and agents from any act of trespass on the said land.”

The plaintiffs’ Statement of Claim was amended twice and the last paragraph of the amended Statement of Claim on which the case went to trial reads as follows:

“WHEREUPON the plaintiffs claim a declaration that the Bashua family are the owners by native law and custom of all the area of land edged yellow in the plan attached herewith. In the alternative, the plaintiffs claim that all the land edged red in the plan attached herewith belongs to the Bashua family, subject to the rights of the descendants of Somolu, Sanusi Alade and Bajulaiye or those claiming title or interest through or under any of them.”

The claim for injunction was apparently dropped as no further reference was made to it in the course of the judgment.

The land, the subject-matter of the case, is situate at and known as Bashua Village and lies in the Yaba district of the mainland of Lagos. It is shown on the plan filed with the Statement of Claim and therein edged yellow. Such a plan i.e. No. LD 45, was produced in evidence by the plaintiffs and marked exhibit D. The case of the plaintiffs by their pleadings and the oral evidence given on their behalf is that the land in dispute was originally settled by one Odu Bashua, that the plaintiffs are his lineal descendants, that the defendants are the descendants of one Oduka, the child of a slave woman lbitola (or Ibitile) whose master was one Akinluyi Alashe. According to the plaintiffs, Akinluyi Alashe was a child of one Oluketebo who was one of the domestics of Chief Shadare Bashua the only child of Odu Bashua. It was also part of the plaintiff’s case that in or about the year 1917 Oduka became the head of the Bashua chieftaincy family and that it was in that capacity that he made several grants and sales of portions of the Bashua family land. Thus stated it is not clear from the plaintiffs’ case what had sparked off the present litigation: one has to go to the case of the defendants to see this.

The defendants claim that they descended from Oduka Akinluyi and that they and their ancestors before them have never been members of or related to the Bashua chieftaincy family. According to them the original owner of the land in dispute was their progenitor one Oniketebo (sometimes called Oluketebo) whose son Oduka Akinluyi was. They also maintained that the land in dispute belongs to the Oniketebo family, that Oduka Akinluyi dealt with portions of the land as head of that family and that the ancestors of the plaintiffs were some of the customary tenants placed on the land by the Oniketebo family in return for the payment of tribute.

Some of the dealings with portions of land at Bashua village had provoked litigation, chiefly between purchasers from the lineal descendants of Odu Bashua and those of Oduka Akinluyi, and some of the judgments in those cases were produced in evidence at the trial.

In a reserved judgment the learned trial Judge took the view that the question whether Oduka Akinluyi exercised dominion over the Bashua village land as the head of the Bashua chieftaincy family or as the head of the Oniketebo family had been decided in previous proceedings and that that question is now res judicata binding upon the present parties in this case.

He held that the result of the cases is that Oduka Akinluyi was at one time head of the Bashua chieftaincy family and that he dealt with the Bashua village lands in that capacity. He therefore entered judgment In favour of the plaintiffs granting them a declaration as follows:-

“The Bashua chieftaincy family are the owners by native law and custom of all the area of land edged yellow in the plan No. LD45 drawn by licensed Surveyor Kukoyi on 20-4-63 and marked Exhibit D in this case.”