Jimoh Akinfolarin & Ors. V. Solomon Oluwole Akinnola (1994)

LawGlobal-Hub Lead Judgment Report

IGUH, J.S.C.

In the Ondo Judicial Division of the High Court of Justice, Ondo State, the plaintiffs, who are now the appellants, for themselves and on behalf of the Ansar-Ud-Deen Society, Ode, Ondo caused a writ of summons to issue against the respondent who therein was the defendant claiming, as subsequently amended, as follows:-

“(1) A declaration of title under Native Law and Custom to a piece of land situate and being at mile 2 Ondo Okitipupa Road and more particularly shown on Plan No. L & L/A3635 and Plan No. OB 4105;

(2) N200.00 being general damages for trespass to the said plaintiffs’ land; and

(3) A perpetual injunction restraining the defendant, his servants and/or agents from committing further trespass on the land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, all three plaintiffs testified on their own behalf and called witnesses. The defendant also testified in his defence and called witnesses. At the conclusion of hearing, the learned trial Judge in a reserved judgment which was delivered on the 5th day of September, 1979, found for the defendant and dismissed the plaintiffs’ claims in their entirety.

Being dissatisfied with this judgment, the plaintiffs appealed to the Court of Appeal, Benin City Division, which in an unanimous decision on the 4th day of May, 1988 dismissed the appeal and affirmed the judgment of the trial court.

The plaintiffs have now further appealed to this court against the said decision of the Court of Appeal. I shall hereinafter refer to the plaintiffs and the defendant in this judgment as the appellants and the respondent respectively.

I think it is desirable at this stage to recapitulate the facts of this case. In doing so, I shall adopt the facts as ably set out in the judgment of the Court of Appeal which are as follows:-

“The land in dispute belonged originally to the Oloka Chieftaincy family of Ondo under customary law. Chief Oloka of Oka was and is still the accredited head of the family. In 1950 there was a vacancy in the Oloka Chieftaincy following the death of the then Oloka of Oka. There was a protracted dispute in the family as to succession to the vacancy. One Theophillus Adegoju claimed to have been rightfully appointed to the office by the family while S.A. Akinboye also laid claim to a similar appointment. There were thus rival claims to the title.

The Oloka Chieftaincy is a recognised minor Chieftaincy with the Osemawe of Ondo as the prescribed authority who had (and presumably still has) the power to approve the appointment of an Oloka. On 14th July, 1956, the Osemawe of Ondo approved the appointment of S.A. Akinboye as the new Oloka of Oka.

On 10th April, 1954, Theophilus Adegoju and some members of the Oloka family made a grant of the land in dispute to the Ansar-Ud-Deen Society of Ondo (hereinafter is referred to as the Society) for the erection of a school. The appellants claimed that the Society went into possession and exercised acts of ownership on the land by clearing it and planting cassava therein; they also erected a signboard on the land. Following the reconstruction on the Ondo – Ore highway, part of the land granted to the Society was encroached upon by the road and the society reported this to Adegoju who with some members of the Oloka family on 27th December, 1973 executed an agreement (Exhibit A) in favour of the Society confirming the 1954 grant but in respect of the land remaining after deducting the part encroached upon by the new highway.

Meanwhile in May, 1973. Chief S. A. Akinboye the Oloka of Oka and head of the Oloka family together with some other members of the family sold under customary law, the land in dispute in two lots to the respondent and executed two agreements dated 14th May, 1973 and 24th May, 1973 (Exhibits K and K1) in his favour. The respondent claimed he went into possession cleared the land and planted therein cassava, maize and pineapple and later surveyed the land. He denied seeing any survey pillars or signboard on the land at the time of the sales to him.”