Chief O. Odofin V. Isaac Ayoola (1984)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

This case has its genesis from Grade A Customary Court, Ile-lfe. A writ of summons was filed on 29/6/59 as suit No. 390/59 by the present appellant as plaintiff, claiming against the defendant a declaration of title in native law and custom to the land situate lying and being at Oke-Okoko Ashipa, Ife District. An injunction restraining the defendant and his servants and or agents from further interference with the land was also claimed. In the claim, the boundaries of the land in dispute were stated to be as follows –

“1st side by Fasakin’s land, 2nd side by Idowu Akinowo’s land, 3rd side by Akinkumi’s land, 4th side by Majayomi’s land.”

The case was first listed for mention on the 19th December, 1967. The defendant thereafter in his own action in suit No. 165/68 claimed in similar terms, but the boundaries indicated in Suit No. 165/68 are as follows –

“On one side by Olukotun farm-land, on the 2nd side by Olusola Ashipade family land, and on the 3rd side by the farmland of Oruku family.”

The two suits were consolidated and tried. After hearing the parties and their counsel, the learned President of the court dismissed plaintiff’s claim in suit No.390/59, and granted the claim of the plaintiff in suit No. 165/68. Plaintiff in suit No.390/59 appealed to the High Court at Ile-Ife. The judgment of the learned President of the Grade A Customary Court was on the 30th April, 1975, reversed, the claim of plaintiff in suit No. 390/59 was granted, and the claim of plaintiff in suit No. 165/68 was dismissed. Plaintiff in suit No.165/68, then appealed to the Court of Appeal, Division sitting at Ibadan. The appeal was allowed on the 23.4.81. Judgment of the Ile-Ife High Court was reversed, and set aside and judgment of the learned President of the Grade A Customary Court was restored. Plaintiff in suit No. 390/59 hereinafter referred to as appellant has now appealed to this Court from the judgment of the Court of Appeal. It appears from the pleadings which were subsequently made part of the record of appeal in the High Court on the order of the judge, that the actions were brought and defended in representative capacities. There is no doubt that the actions were fought in the Grade A Customary Court on the pleadings. The statements of claim and defence are now reproduced at pages 62b – 62f of the printed record of proceedings.

The case of plaintiff in suit No. 390/59, who is the present appellant, the Odofin of Ashipa, is that the land in dispute was granted to the Ashipa Community by the Oni of Ife, Adegunle Abewela many years ago. The grant was made to the then Ashipa, named Fashina. The Ashipa Community has been in possession since then, and in appreciation have always made annual presents of yams etc. to the Oni.

Members of the Community have been farming the land, and have planted various cash crops and erected buildings without being disturbed by anyone until 1959 when the plaintiff in suit No. 165/68, the present respondent disturbed their user. This was reported to the then Oni of Ife who intervened, but was unable to effect a settlement.

The case of the respondent, who is the plaintiff in suit No.165/68 is that the land in dispute is only part of a larger piece of land founded and first settled upon by his ancestor called Akalako Apetumodu, and who named the area Ipetumodu. The land descended through him to the family of Obiwale, its Bale, who holds the land in trust for the family. The land in dispute is adjacent to Ashipa town and includes Ashipa market. It has been used by the Ipetumodu people for farming and planting cash crops. Among the tenants placed on the land are members of the Ashipa Community including the father of the present appellant who was put there by respondents. The tenants so placed paid Ishakole to respondents. Respondents also granted a portion of the disputed land for the building of the Origbo Community Grammar School. The present dispute arose because some Ashipa Community tenants including the present appellant have failed to pay ishakole to the respondents.

At the trial both parties filed separate plans exhibits A and D respectively in support of their case. As I have observed earlier, the descriptions of the land in dispute are not identical. Consequently, exhibit A, the plan of plaintiff in suit No.390/59, the present appellant, shows the land in dispute as covering 208.32 acres, the area in dispute in exhibit D, claimed by the present respondent and plaintiff in suit No. 165/68 covers 196.9 acres. Apart from the agreement in the two plans showing the Ashipa market, (South-west tip) and Origbo Community High School (North Easterly), there is no complete uniformity in the names of the boundary men; similarly the names of the streams flowing in or out of the land in dispute. However, both plans agree on the Okoko stream. It is however of crucial importance to observe that both parties claim to derive their title in different capacities. Whereas the appellant claims to derive his title from grant from Oni Abewela, the respondent’s claim is that title was derived by first settlement of his ancestor Akalako. I reproduce hereunder the relevant paragraphs of the pleadings of the parties disclosing their claims as to their roots of title.

Paragraphs 3, 4, 5, of the statement of claim reads-

“3. The plaintiff and the people he represents are the owners of the land delineated on plan No. LD3 already filed and therein edged yellow.”

“4. The plaintiff and the people he represents have been the owners of the land in dispute from time immemorial and have also been in undisturbed possession for a long time with no interruption from any quarters.”

“5. According to traditional history, it was Oba Adegunle Abewela, the Oni of Ife who gave the land in dispute to the plaintiff’s ancestor by name Fashina alias Ashipa who was the first settler on the land.”