His Highness Lamidi Olayiwola Adeyemi (Alafin Of Oyo) & Ors V. A-g., Oyo State & Ors. (1984)

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SOWEMIMO, C.J.N. (Presiding): The Honourable the Chief Justice of Nigeria who presided over this panel agreed with the majority view at conference in this case and thus his vote is for the majority.

IRIKEFE, J.S.C.: The dispute between the Oyo Community and the Ogbomosho community (both in Oyo State) as to the precise boundary between them, their land area being contiguous, had existed before the advent of British colonial rule. An attempt, albeit unsuccessful, had been made in the Speed report by the British colonial administrators to demarcate a boundary between the ancient kingdom of Oyo and Ibadan; Such a boundary would have placed Ogbomosho on the same segment as Ibadan to the south.

In 1967 the Ogbomosho community issued out a writ – No.1/23/67 in the High Court of Western Nigeria sitting at Ibadan claiming as follows against the Alafin of Oyo and the Oyo community:

“(i) Declaration that the boundary between the lands of the Ogbomosho community and the lands of the Oyo community is the Ipeba Stream, and not the Oba Stream, (a detailed plan of which will be filed later).

(ii) An injunction restraining the defendant from exercising any right of overlordship over the area between the Ipeba Stream and Oba stream, property of the Ogbomosho community (a plan of which area will be filed later).”

The above action had not proceeded to trial before the Governor of Western Nigeria acting under powers vested in him under section 4 of the Local Government and Community Boundaries Settlement Law, Cap 69, Laws of the Western Region of Nigeria, 1959 referred the boundary dispute to the Boundary Settlement Commissioner – for settlement.

The Order making the reference which was contained in W.S.L.N. 114 of 1969 (Western State Legal Notice) reads:

“(1) This Order may be cited as the Local Government and Community Boundaries (Determination) Order, 1969.

(2) The boundaries or any parts of the boundaries, as the case may be, described in the first column of the schedule hereto and in respect of which there is subsisting any dispute between any local government councils or communities in the area or areas of authority of the local government councilor councils specified opposite thereto respectively in the second column of the Schedule, are hereby referred for determination by the Boundary Settlement Commissioner.”

This dispute relating to the communities in this appeal is listed as number 17 on the schedule.

The Commissioner, one M.E. Ogundare, was, at the time of his appointment more than 10 years old at the Nigerian Bar and thus qualified under the 1963 Constitution of Nigeria for appointment as a High Court Judge. Upon assuming the duties of his office Mr. Ogundare subscribed to an oath prescribed for boundaries settlement commissioners under section 3A of Edict No.5 of 1968 which reads:-

“I swear that I will well and truly serve the Western State of Nigeria in the office of Boundary Settlement Commissioner and will faithfully and impartially and to the best of my ability discharge the duties devolving upon me by virtue of my appointment and will do right according to law to all persons that may come before me, without fear or favour, affection or ill-will. So help me God.”

The above oath is undoubtedly identical in terms with the oath subscribed to by all judges of superior courts of record in this country, upon assumption of office.

Mr. Ogundare, who incidentally was later appointed a High Court Judge and has since been elevated to the Court of Appeal of this country, proceeded with the enquiry with which this case is concerned and on 29th January, 1971 delivered his finding in which, after a thorough and meticulous appraisal of the evidence adduced before him, he found inter-alia as follows:-