Aminu Sunmonu Bamishebi & Ors V Zaccheus Faleye & Ors (1987)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The Court of Appeal sitting at Abeokuta dismissed the defendants’ appeal from the decision of Craig, C.J., of Ogun State High Court whereof on the 8th day of May, 1979, he entered judgment with costs in favour of the plaintiffs in their claim for declaration of title and for an order of injunction against the defendants, their agents and servants in respect of a piece of land situated at Igbo Elodi. otta, in Ogun State, and more particularly described and verged ‘Red’ in a plan No. AK. 304B of 31st July, 1974.

The defendants being dissatisfied appealed to the Court of Appeal against the decision and the plaintiffs filed a cross-appeal against the order dismissing the claim for forfeiture. The Court below, in a considered judgment dismissed both the appeal and cross appeal with costs.

The defendants only have further appealed to this court. For a proper understanding of the issues raised in this appeal, I shall give a summary of the facts of the case. There are three parties in the proceedings representing three families. The plaintiffs represent the Eledi Atala family, the 1st to 4th defendants represent Atelefobaoloja (otherwise known as Itele) family, while the 5th and 6th defendants are representatives of the Odota family.

The plaintiffs case at the trial was that their ancestor, Eledi Atala, was the first person to settle on the land. During his lifetime, he cultivated the land, granted portions to various persons for farming as tribute paying tenants according to Yoruba native law and custom. Amongst the ancestors of persons granted portions of the land was one Odota, whose descendants (including 5th and 6th defendants), still farm on the land.

The statement of claim averred that

“The 1st to 4th defendants and members of their family, as were their ancestors have no title right or interest within the said Igbo farmland and there is no history to connect them with any part or portion of the Eledi Atala family land” and further

“That the 1st and 4th defendants have since 1962 continued to interfere with the possession, occupation and quiet enjoyment of Eledi Atala family over the said portion of plaintiffs’ land”.

The two sets of defendants (Itele and Odota families) filed a joint defence. They denied that the plaintiffs ancestor was original owner of the land or that their progenitor, Odota, ever sought from Eledi or that he or his descendants were granted any portion of the farmland.

Their case was that Atelefobaloja (alias Itele) the ancestor of 1st to 4th defendants, was the original owner, made customary grants of portions to various persons including Odota for farming. Odota at the request of Itele, the original owner, made sub-grants to Atala, alias Jaguda, the ancestor of the plaintiffs and to other persons.

The parties called evidence and it was not disputed that descendants of two of the three families (Eledi and Odota) were on the land farming and have sub-tenants thereon. Because of the importance attached to the evidence it will be necessary to comment on his (1st plaintiff) evidence and of 2nd P. w. Andu Makinde and those of other witnesses called by plaintiffs.

1st plaintiff, Zaccheus Faleye, in his evidence admitted that one Yesufu Oloyede, Yesufu Lemomu, Shitta Adesona and Suliyu Amodu have farms on the land. He said “all these I know are all brothers of 5th defendants they are all farming on the land in dispute.”

As to how the 5th defendant came to farm on the land, 1st plaintiff said:-

“Coker Adesona (5th defendant) got to our land through one Sanya-Sanya asked Eledi Atala for land for Adesona.