Chief Olanitoro Aruwaju V. Chief Ashojo Olotu Ashara (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Akintoroye J. delivered on 29th October 2012 at the High Court of Ondo State Holden at Owo.

By writ of summons and statement of claim dated and filed on 12th April 2010, the Respondent as plaintiff in the court below claimed against the Defendant Appellant as follows:

1. Declaration that the plaintiff is entitled to a certificate of statutory Right of occupancy on the land in dispute in this case with an area measuring approximately 123.420 sq. meters situate lying and being at Igboroko Street, Owo, Ondo State with detailed (sic) particulars contained in the Survey Plan No. OD/1255/2010/002 dated 13/01/2010 drawn by Mr. J.I. Olofinte Licensed Surveyor.
2. N500,000 as general damages for the act of trespass of the Defendant on the said plaintiff’s land.
3. Perpetual injunction restraining the defendant by himself, his servants, agents and or privies or otherwise however called from continuing with further acts of trespass on the said plaintiff’s land.

Pleadings were filed and exchanged in the court below.

The pleading of the plaintiff/respondent that the land in dispute formed part of a large expanse of land granted by Olowo Ogija to his son Osengakun though not pleaded by the Defendant/Appellant was admitted in evidence by the Defendant/Appellant.

The Respondent traced his title and that of his Ashara family from Olowo Ogija to Elegba Osengakun through Ajelu and her daughter Olumokunbi who begat Ajigbekunola for Ojomo Oludipe. That Ojomo Oludipe made his son Ajigbekunola, Ashara of Owo. That, Ashara started to live and manage his own family affairs from his maternal house at Igboroko-Nla Owo, while Ajelu his maternal grandfather was controlling the affairs of the rest members of Elegba Osengakun family.

That, as time went on, when the land allocated to Ashara was not enough to accommodate his family members, Elegba Osengakun granted another portion of land to Ashara part of which is the land in dispute which extended to the left hand side of Igboroko-Nla Owo when coming from the said Mapo Town Hall.

The respondent pleaded and led evidence of other Ashara family members that built houses on the left hand side of Igboroko-Nla and that the Ashara family has been in exclusive occupation and possession of the land in dispute for over 30 years before now without let or hindrance from the Appellant in particular and members of the public in general.

The Appellant as defendant on the other hand averred that Ifakolade otherwise known as “Aruwaji Alaloun” was among the issues of Osengakun. Also, that Aruwaji was the grandfather of the Appellant. He furthered that some of his ancestors buried on the land include Olafemiwa and Olukoogbe. That, in 1915, Aruwaji Olafemiwa made traditional “Ako” for his Late father Aruwaji Fakolade and the said “Ako” effigy was buried on the disputed land. The Appellant as defendant further tendered Exhibit D-D1, the Extract of a mediation meeting of the Olowo-in-Council which gave the land in dispute to him.

Learned Counsel for the defendant Appellant in his closing address in the court below challenged the jurisdiction of the trial court on the ground that “Ashara family of Igboroko-Nla, Owo” as distinguished from “members of Ashara family” is not a juristic person which renders the suit incompetent and debars the trial court of jurisdiction.

The Respondent as Plaintiff called one witness (PW1) and gave evidence as PW2. The Appellant as defendant gave evidence as DW1 and called two other witnesses.

In a considered judgment, the learned trial judge found that the jurisdictional issue was procedural and not substantive and was not raised timeously. That Exhibit D-D1 has no probative value as it failed to meet the conditions necessary for a binding decision of a native arbitration. He also found the traditional history of the Respondent to be consistent, cogent and reliable. He rejected the traditional history of the Appellant, amongst other reasons that “those facts relating to the original owner of the land, and to whom it was granted by him were not pleaded by the defendant.”

The learned trial Judge nevertheless assumed that even if the two traditional histories were held to be probable but conflicting, the events in recent times tilt in favour of the plaintiff/Respondent under the principle enunciated in the case of KOJO II V BONSIE (1957) 1 WLR 1223.

He concluded that the plaintiff Respondent is entitled to declaration of title on the land in dispute.