Amodu Latunde & Anor V. Bello Adeniji Delesolu Lajinfin (1989)

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UWAIS, J.S.C.

This case was instituted in 1973 in the Customary Court Grade “A”‘ holden at Ibadan. The respondent herein was the plaintiff while the appellants were the defendants. The plaintiff’s claims against the defendants, as per his amended writ of summons, read thus-

“1. Declaration that the defendants are not members of Delesolu Family or Lajinfin Family of Oje, Ibadan.

2. Declaration under native law and custom that the defendants and their descendants are not entitled to be head of Delesolu Family.
3. Order that the plaintiff’s descendants have always been and are entitled to be the head of Delesolu Family in accordance with native law and custom.
4. Injunction restraining the 2nd defendant from parading himself as the Head of Delesolu Family.”

At the hearing of the case, both parties testified and called witnesses. It emerged from the testimonies of the witnesses that Delesolu, whom the parties claimed to be their ancestor was a warrior.

This was a common ground. However the plaintiff’s case was that Delesolu came to Ibadan from Ogbomoso. He brought with him to Ibadan, his brother called Lajinfin or Olajinfin. As a warrior, Delesolu participated on the side of Ibadan during a war. After the war Oderinlo granted a parcel of land to him. Delesolu who hailed from a town called Oje in Ogbomoso, settled at a place in Ogbomoso called Ijebu.

He built a house on the parcel of land granted to him at Ibadan and also found a market on the land which he called Oje market. Delesolu became the Mogaji of his own children and those of Lajinfin, his brother, who lived with him. Delesolu died when none of his children was alive. Lajinfin was alive and he (Lajinfin) inherited the property of Delesolu together with Delesolu’s wife called Igbayinmike, who was the daughter of Oderinlo. Ighayinka was a mother of two children by Lajinfin. The plaintiff is a son of one of the two children. Lajinfin became the Mogaji of Delesolu’s family at the death of the deceased. Henceforth the descendants of Lajinfin had always been appointed the Mogajis of Delesolu’s family. The defendants and their (defendants’) ancestors were strangers and were not therefore the descendants of either Oelesolu or Lajinfin.

The defendants’ case was that Delesolu came to Ibadan from Abeokuta and being a warrior he was put in charge of certain operations during the war. After the war, Oba Oluyole and Oderinlo granted a parcel of land to him. He named the place “Oje” after his hometown at Abeokuta. Delesolu’s mother was called Yemetu and he gave that name to the stream near Oje. One Oluseimo came to lbadan to join Delesolu. Both Delesolu and Oluseimo had children.

The latter died before the former, and their children were young by the time they both died. The children could not therefore inherit the property and wife of Delesolu. Ojuolape who was a friend to Delesolu was asked to be the beneficiary but he declined. Instead he invited one Lajinfin, who was not related to Delesolu (that is a stranger) to inherit the property and wife of Delesolu. Lajinfin did so. Consequently, Lajinfin became the head of Delesolu’s family and his (Lajinfin’s) descendants continued to be the heads of Delesolu family.

The Customary Court accepted the plaintiff’s case and gave judgment in his favour granting all the claims he made against the defendants. On appeal to the High Court, Ibadan by the defendants, the High Court, Adio, J., confirming the findings of the Customary Court, stated as follows-

“In the first place the complaint of the learned counsel for the appellants (i.e. defendants), in the circumstances of this case, related to style. The statement that the traditional evidence led by one party is more probable than that of the other party could be at the beginning or at the end of the reasons given in support of the statement. While one may prefer one style to the other, the essential or fundamental things are the reasons given by the (Customary) Court in support of the statement that the traditional evidence led by one party is more probable than that of the other party.

On the question whether the traditional histories were tested, the record is the only guide. Various issues were considered and findings were made on them. The lower court considered the issue raised by the inheritance of the wife and the property of Delesolu by Lajinfin and came to the conclusion that Lajinfin inherited the wife and the property of Delesolu because Lajinfin was in fact the brother of Delesolu. It was common ground that Lajinfin originally came from Ogbomoso and that he inherited the wife and the property of Delesolu when Delesolu died.

The respondent (i.e. plaintiff) led evidence, and a witness of the appellants confirmed it, that according to native law and custom when a person dies a junior brother can inherit his wife but a stranger to the family cannot do so. The lower court also considered the question whether Delesolu was or was not survived by children and came to the conclusion that he was not survived by any children (sic). There was also the issue of tribal marks on the cheeks of the parties in respect of which the finding of the lower court was also in favour of the respondent.

The foregoing matters were just some of the essential matters which were material to the traditional history and there was evidence on record to justify the findings of the lower court on them. There was also evidence, which the lower court rightly accepted that after the death of Delesolu and immediately before the present dispute Lajinfin and his descendants were the persons who were at one time or the other selected as the Mogaji of Delesolu family. Further, the respondent led evidence, which was not challenged or uncontradicted that according to native law and custom slaves and strangers are always given accommodation at the entrance of a family’s house or compound. The findings of the lower court that the traditional evidence led by the respondent was more probable was supported by the evidence on record.” (italics mine)

In effect the High Court confirmed