Alhaji Jimoh Odutola V. Caleb Sanya & Ors (2007)

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JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the judgment delivered by Hon. Justice M. O. Ojo while sitting at the High Court of Justice, Ijebu-Ode, Ogun State of Nigeria on 27th November, 2002. The learned trial judge found in favour of the defendants, herein referred to as respondents, and dismissed the case of the plaintiff who is the appellant herein.

It is desirable at this point to recapitulate, albeit, briefly the facts, as assembled at the trial court, which led to this appeal.

The claims of the plaintiff as contained in his 1st Further Amended Statement of Claim at page 66 of the transcript record of appeal read as follows:-

“1. Declaration that the plaintiff is entitled to the Customary Right of the Certificate of Occupancy in respect of the piece or parcel of farm land situate, lying and being at Odo-Isielu via Idowa, shown on Plan No. FF080/09/96.

2. An order of forfeiture against the defendants in respect of the piece or parcel of farm land situate, lying and being at Odo Isielu via Idowa.”

Based upon pleadings which were filed and duly amended by the parties, the case proceeded to hearing before the learned trial judge. The plaintiff called three witnesses and also testified on his own behalf. The defendants called one witness and the 1st defendant also adduced evidence at the trial court.

The plaintiff maintained that the farm land in dispute originally belonged to Osiyelu; the original name of the land being Odo-Osiyelu. Osiyelu begat Osiade, a male; Odujoke, a female, and Kuyagba, a male. Odujoke begat Seyin who begat Odutola, the plaintiffs father. The plaintiff, as DW4, testified that under Ijebu Native Law and Custom, it is the child of a female who inherits their father’s property; hence Seyin inherited the land of Osiyelu. He maintained that the defendants’ fore-bears got onto the land as a result of in-law relationship.

The defendants, on their part, maintained that it was one Ogbun Ramusegun who founded Odo-Ogbun which forms part of Odo-Isielu but separated by a river. They further contended that Odo-Isielu was founded by Oba Ijasi who granted same to Ogbun Ramusegun in exchange for traditional ornaments which Oba Ijasi borrowed from Ramusegun and could not return the items due to a fire incident which destroyed his house. The defendants’ forebears have ruins of their houses on the land. Ogbun’s children and grandchildren have been planting various crops and erecting buildings on the land without hindrance.

After the learned trial judge garnered evidence from both sides of the divide, he was properly addressed by learned counsel for the parties. In his reserved and considered judgment delivered on 27th November, 2002, he found in favour of the defendants and dismissed the case of the plaintiff.

The plaintiff felt unhappy with the stance posed by the learned trial judge and has appealed to this court vide his Notice of Appeal dated 21st February, 2003. The said Notice of Appeal which was filed on the same date carries seven (7) grounds of appeal.

The relief sought from this court by the appellant is – ‘to set aside the judgment of the High Court of justice Ogun State and grant the plaintiffs reliefs as claimed in his 1st Further Amended Statement of Claim’.

When the appeal fell due for hearing on 20th March, 2007, Senior Counsel for the appellant adopted and relied on the Appellant’s brief of argument dated and filed on 17-11-04 as well as appellant’s Reply Brief filed by leave of court on 7-3-06. Learned counsel for the respondents adopted and relied on the Respondents’ Brief of Argument dated 16-6-05 and filed on 20-6-05.

The four issues distilled for a proper determination of the appeal on behalf of the appellant read as follows:-

“(i) Whether in the state of pleadings and evidence proffered, the plaintiff has not proved custom of Ijebu as to inheritance of female child and customary tenancy.