Chief Toyinbo Adawon V Saanu Asogba & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The action that led to this appeal was filed at the Agosasa Grade Two Customary Court of Ogun State, and the Appellant’s claim as Plaintiff against the Respondents, who were the Defendants, was for a “declaration of a piece or parcel of land situate, lying and being at Igbole Area, Eyin Ogbe, Agosasa” and an order of injunction restraining them, their agents/servants and children from further trespass on the said farmland. The Appellant testified at the trial Customary Court and called three witnesses, while the Respondents gave evidence themselves and called one witness each in their defence. According to the Appellant, the farmland in dispute belonged to his grandfather, Adawon who gave “Asogba” sanctuary in Agosasa and allowed him to work on the said farmland after Asogba escaped from Idiroko to avoid being killed by his family because he had committed adultery with a housewife of the family. The said Asogba was the father of the 1st & 2nd Respondents and the 3rd Respondent’s grandfather and it is their case that the farmland in dispute belonged to Asogba’s father in law, Akanbi Oliha, who gave it to Asogba after he married Akanbi’s daughter, Omolola, and when she died, the 3rd Respondent’s father, Olayode started to farm on the said land. And after Olayode’s death, the three Respondents continued to farm on the land for decades now without paying Isakole or being disturbed by anyone.

In addition to hearing evidence, the trial Customary Court visited the locus in quo, and its Report of the Farmland Inspection was later read out in Court.

In its Judgment delivered on the 22nd September 1998, it held as follows –

“Upon the whole evidence adduced from both the Plaintiffs, the Defendants, their witnesses and the Land Inspection conducted by the Court, the Court hereby declares –

1. That both the Plaintiff and the Defendants had been working on the farmland in dispute for over 40 years without any disturbances, challenge or molestation from each other.
2. That the Defendants never paid ISAKOLE to the Plaintiff and the Plaintiff too never paid ISAKOLE to the Defendants.
3. That any person or group of persons who acquired a parcel of farmland for over 12 years without molestation, challenge or disturbance from any quarter and never pay Isakole to any person or group of persons becomes rightful owner of such parcel of farmland.
4. That both parties should operate in cooperation as the same extended family.
5. That the Plaintiff should maintain the area of the farmland in dispute he had been operating before now, and the Defendants too should retain the area of the farmland in dispute they had been operating before now.
6. That both parties should continue to live together with mutual cooperation and understanding that existed ever before now”.

Dissatisfied, the Appellant appealed to the High Court, Ilaro Division, Ogun State with a Notice of Appeal containing 5 Grounds of Appeal, and after hearing arguments of counsel, the lower High Court presided over by Olatoye, J., delivered Judgment on the 11th of December 2000, wherein it was held –

“In this case, no evidence of exclusive possession of all the parcel of land in dispute was adduced in the Court below. Inference of exclusive ownership could not be drawn. It is a case of concurrent holding of a portion of the land in dispute for upward of 40 years. As there is no evidence that either Side was paying tribute or ishakole to the other no inference of tenancy would be drawn in favour of either party. The correct and most plausible conclusion would be for each party to hold on to its portion and live in peace with the other. It is therefore my conclusion that the appeal fails and all the Grounds of Appeal are hereby dismissed. Appeal is dismissed.” (Italics mine)

Further dissatisfied with the Judgment of the lower High Court, which affirmed the decision of the trial Customary Court, the Appellant has appealed to this Court with a Notice of Appeal containing 4 Grounds of Appeal. In line with Rules of this Court, briefs of arguments were duly filed and exchanged.

In the Appellant’s brief prepared by A. Adenakan, Esq., the following 4 Issues were formulated as arising for determination in this appeal –

(a) Whether it was proper for the lower Court to have ordered that the Respondents should hold on to the disputed land in their possession as owners thus converting long possession as tenants into Ownership for them.

(b) Whether the Plaintiff in fact claimed ownership of the disputed land by long-possession as against traditional evidence of ownership proved.

(c) Whether non-payment of Ishakole by the Respondents-tenants was evidence that they owned the land when of her evidence showed conclusively that they were tenants.

(d) Whether the sentimental decision of the lower Court that the Respondents-tenants should hold on to the disputed land in the interest of peace was proper when traditional evidence of ownership had been proved.

The Respondents however submitted in their own brief prepared by N. O. O. Oke, Esq., that only one Issue arises for determination and it is as follows –