Chief Alhaji K.O.S. Are & Anor V. Raji Ipaye & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In this suit commenced in the High Court of Oyo State, the plaintiffs/appellants claimed the following reliefs against the defendants/respondents.

“1. Declaration of title according to native law and custom to all that piece of land situated, lying, being and known as Alashe village, Oyo Road, Ibadan.

2. Declaration that the 1st-4th defendants have incurred forfeiture of their holdings of portions of the said land by reason of misconduct under native law and custom.
3. Possession of all the land held of the plaintiffs by the defendants within the said land.
4. N1,000.00 damages against the 5th defendant for continuing trespass and waste committed by its servants and agents on the said land since about February, 1976.
5. Injunction to restrain the defendant, their servants, agents, assigns and privies from further entry on the said land.”

This writ was subsequently amended in paragraph 4 to claim damages against all the defendants. Pleadings were ordered and were duly filed and exchanged. A few paragraphs of the pleadings will bring into focus the issue in contention in this suit. In paragraphs 2, 3, 4, 10 of the amended statement of claim the plaintiffs show their root of title and the relationship to the land of the 1-4th respondents herein. These paragraphs read as follows:-

“2. The plaintiffs aver that Latosa the Are-Onakakanfo of Ibadan between 1871-1885, their ancestor, acquired a large piece or parcel of land including the land verged red in plan no. KESH/Y/5386, and Asofunni or Isafunni, Abiola, Soribi, Akingbolo, Tose, and other villages called together Are farm, Oyo Road, Ibadan by settlement under the native law and custom, about 150 years ago, and became the absolute owner thereof.

3. The said Latosa Are-Onakakanfo called Are for short was warrior and exercised maximum acts of ownership on the said land which he acquired including the land verged red in plan no.KESH/Y/5386 filed with the statement of claim.
4. Are used part of the land as his war depot and war resort; he granted portions of it to his children, relatives, domestics and slaves for farming. Are also had a house which has now been rebuilt and occupied by his descendant Ladipo of Alase village in the area verged red in the plan. The children of Ladipo who are descendants of Are still live in that house. Saliu and Ajibola are descended and relative (sic) respectively of Are who also have houses in Alashe village…
5. Jolaoso and Ipaye were some of the slaves Are put on his farm to work for him within the area verged red. They became customary tenants to Are when slavery was abolished. They paid Ishakole of yams, palmoil and kolanuts and other crops to Are before his death, and after Are’s death to the successive Mogajis of Are family.”

In their amended statement of defence the 2nd-4th defendants/respondents denied paragraphs 2, 4, 9, 10 etc. of the amended statement of claim. In paragraphs 4, 5, 6, 7,13, and 24, they averred as follows:

“4. The defendants admit that Are Latosa granted Alashe village to the defendants but deny that it was Are Latosa that settled people like Abiola, Saribi, Akingbolo, Tose, Orisafunmi etc. in their respective villages. Are himself never lived nor farmed at Alashe village.

5. The defendants admit paragraph 3 in so far as it stated that Are Latosa was warrior but say that Are Latosa never exercised any act of ownership since the grant was made to Ipaye between 1871 and 1885 of the land verged blue and marked “A” on the defendants’ plan.
6. The defendants further to the denial of paragraph 4 of the statement of claim say that the descendants of Are Latosa who live and farm at Alashe village now in dispute are Salawu the son of Ladipo, and Saliu Babakekere the son of Gbadamosi who in turn was the son of Alli and grants of land were made to them by Ipaye.
7. Ladipo built on the land in dispute at Alashe village on the land granted to him by Ipaye. Iyeloja the mother of Ladipo was pregnant when Are Latosa was going to Kiriji war. Iyaloja was left with Ipaye being a friend of Are Latosa and Ladipo was born on the land in dispute and he died there. Salawu his son now lives there…

13 The land said to be in dispute in paragraph 7 of the statement of claim is smaller than the parcel of land marked ‘A’ and edged blue on Plan No. GS218/77 which was granted to the defendants by Are Latosa, the ancestor of the plaintiffs between 1877 and 1885…

24. Are Latosa made a permanent grant of the present site of Alashe village edged blue and marked ‘A’ in plan No. G.S. 218/77 filed by the defendant to Ipaye…”

At the end of the trial, the learned trial Judge dismissed the claims of the plaintiffs/appellants in their entirety. She clearly identified the main issue in his case when she said:

“The crux of the matter is whether or not the land granted the Ipaye family at Alashe and Oloko villages was an absolute grant or a temporary one upon payment of Ishakole.”

After evaluating the evidence on Ishakole, plans etc., she concluded as follows:-

“I therefore cannot regard the defendants 1st to 4th defendants as plaintiffs’ customary tenants. It is my view, having regard to the evidence of the defendants and their witnesses which I very much believe, that the grant to the defendants by Are was an absolute one and the defendants had been exercising such numerous and positive acts of ownership on the land spreading over a long period of years that they cannot now be dispossessed of their title to it. I am satisfied from the evidence before the court that the original grant made to defendant’s ancestors by plaintiffs’ ancestors was not limited to farming alone. The defendants were allowed to settle on the land, farming and building permanent houses and mosques on it.”

The plaintiffs appealed to the Court of Appeal. That court (coram: Omo, Sulu-Gambari and Onu, JJ.C.A.) dismissed the appeal after affirming all the findings of fact made by the learned trial Judge Onu, J.C.A., who wrote the lead judgment said.

“I am satisfied that the trial court fully evaluated all the evidence adduced before it and arrived at the right conclusion.” The plaintiffs/appellants have now appealed to this court, 9 grounds of appeal were filed but I do not find it necessary to set them down. Briefs of argument were also exchanged by the parties. In his brief of argument, learned senior advocate, Chief Williams for the appellants identified two issues for determination. These are:-