Idowu Adeagbo Ajao & Ors. V. Arasi Obele & Anor. (2004)

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ADEKEYE, J.C.A.

This is an appeal against the judgment of Oyo State High Court of Justice, Ibadan Judicial Division, delivered on the 26th day of July, 1991. At the trial court – the plaintiffs Arasi Obele and Alhaji Fatai Akande representing the Obele family – sued the defendants – Idowu Adeagbo Ajao, Iyiola Adeagbo Ajao, Poju Adeagbo Ajao, Luku Adeagbo Ajao, Lasupo Adeagbo Ajao for and on behalf of the Ajao family for the under-mentioned reliefs:

“1. Declaration that the plaintiffs are entitled to be granted customary right of occupancy for and on behalf of themselves and Obele family in respect of all that piece or parcel of land situate, lying and being at Iyana Ibare village, along Ibadan/Ijebu road, Ibadan.

2. N500 for trespass committed by the defendants on the said land which trespass still continues.
3. Perpetual injunction restraining the defendants, their servants, agents and privies from committing further acts of trespass on the said parcel of land.”

Parties filed and exchanged pleadings. The defendants pursuant to an order of the trial court made on the 26th of February, 1991, filed an amended statement of defence and counter-claim seeking reliefs as follows:-

1. Declaration that they are entitled to customary right of occupancy in respect of the land in dispute.
2. Perpetual injunction restraining the plaintiffs, their servants, agents from further trespassing on the land in dispute as shown on plan ADAKS/844/0Y/89.
3. Forfeiture of the plaintiffs’ holding at Ajao village.

Nine witnesses gave evidence for the plaintiffs and ten witnesses for the defendants during the trial of the case. The brief facts of the case are that the plaintiffs claimed that Obele their ancestor was a warrior who fought in the wars between Ibadan, Egbas, Ijebus over 100 years ago. The land in dispute is at the junction of Bare, near Obele family land. Obele settled and farmed on the land after the inter-tribal wars during his life time. They gave the names of his children, who succeeded him and also farmed on the land. The villages within the land in dispute are Iyana Bare, Aladorin, Araoye and Yanbule – they used to pay Ishakole to the descendants of Obele. The family also gave portions of land to people to build houses.

Obele gave land to the ancestors of the Ajao family – Babarinde and Abiola – who were both paying Ishakole to Obele. The boundarymen to the land in dispute are Alomaja family, Oyelami family, Ekefa family, Onigaa family land and Asegun stream. The plaintiffs claimed that the defendants trespassed on the land in dispute in 1984, by bulldozing the land and buildings with caterpillar. When the defendants were challenged, they told the plaintiffs that the land in dispute belonged to Adeagbo Ajao, one of their forefathers. The defendants on the other hand gave evidence that Ajao their forefather was a hunter and farmer who settled at Ajao village and later installed Pegun shrine there. Ajao was said to have planted cocoa, kolanut and palmtrees on the land on which he settled. It was the contention of the defendants that Obele was from Olodo and that he had his farm at Felele Ibadan. As Obele was a hunter he used to hunt at Ajao village and used to stay with Ajao for about four days at a time before going back to Felele. Since Obele had no house at Ajao, village, Ajao granted him land at Ajao village to build a house. Ajao gave land to a number of people to build houses, and to organizations to build churches and schools. The boundarymen of the defendants in the area of the land in dispute are Araoye village, Aladorin village, Yanbule village, Atilara village, Alomaja village and Oyelami village.

At the close of trial, the learned trial Judge in a considered judgment dismissed the plaintiffs’ case and granted the counter-claim only in respect of two plots of land which the Ajao family had not given out of the entire area claimed by them. The defendants’ claim for forfeiture was also dismissed. As the defendants were aggrieved by the judgment of the lower court – they filed their notice of appeal on the 16th of October, 1991.

Briefs were exchanged in accordance with the rules of court, 2002. At the time of the hearing of this appeal, the appellants adopted and relied on their briefs filed on 15/5/95 and the appellants reply brief filed on 21/10/03. The respondents’ adopted and relied on the respondents’ brief deemed filed on 29/10/03.

The appellants settled two issues for determination as follows:

i. Whether it is not open to a landlord under native law and custom to claim declaration for customary right of occupancy just because part of the land he is claiming customary right of occupancy has been granted to some people.

ii. Whether the learned trial Judge was right in refusing the grant of forfeiture against the 1st plaintiff/respondent on the ground that there was no proof that he is a customary tenant. In other words, is it the only person who pays Ishakole that can be called customary tenants against whom forfeiture and perpetual injunction can be granted.

The respondent in his brief deemed filed on 29/10/03 formulated two issues for determination as follows:

1. Whether the learned trial Judge was right in refusing to grant the appellants declaration of customary right of occupancy in respect of the land as contained in the appellants’ counter – claim.
2. Whether learned trial Judge has misdirected himself by refusing to grant the appellants’ claim for forfeiture against the respondents.

I intend to consider the issues for determination raised by the appellants for the purpose of this appeal.

It is however observed that the plaintiffs/respondents raised preliminary objections on the competency of this appeal relying on the following ground: