Chief Wahab Gbemisola Vs John Bolarinwa (2014)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal from the judgment of the Ibadan Division of the Court of Appeal, hereinafter referred to as the lower court, in appeal No.CA/I/6/99 delivered on the 4th day of November, 2003 affirming the judgment of the Oyo State High Court, hereinafter referred to as the trial court, in Suit No.HSK/26/92.

Briefly put, the facts of the case are that the respondents as plaintiffs had sued the appellant, defendant at the trial court, for declaration of title in respect of the tract of land situate, lying and being at Oke Igboho, stretching behind Oke Igboho Baptist Primary School down to Akuro and up to Sanya Dam, Igboho in Orelope Local Government area of Oyo State; N50,000 damages for continuing trespass since 1991 and perpetual injunction to restrain the defendant, his agents or privies or any person whosoever claiming through or under him from committing further acts of trespass on the land in dispute.

In proving their case, besides traditional history, the respondents pleaded and gave evidence of numerous positive and unequivocal acts of possession they exercise on the land in dispute as shown in Exhibit “P1”, their building plan. They also relied on section 46 of the Evidence Act arising from their acts of possession and enjoyment of other lands connected with the land in dispute.

The Appellant also relied on traditional history and acts of ownership.

The 1st respondent and through five other witnesses testified at the trial court that the land in dispute was founded by Prince Tondi who had sojourned to Igboho from Eruwa having lost a chieftaincy title to his younger brother. Igboho was then a mountainous jungle of many caves inhabited by numerous reptiles. Having founded Igboho, Tondi in company of his three wives and others settled at Igbo Iho. They named the river in the wilderness they settled Sanya. Having settled and fully controlled the vast land, Tondi whose people had gone into farming, allowed portions of the land he founded to persons who subsequently came by Igboho. Jakuta quarters was the last portion of the land Tondi founded which piece he gave to defendant’s forefathers. Olomo was their head and Appellant’s ancestor. The boundaries of the land in dispute is demarcated red on respondents, plan No ADAKS 59D/09/94, Exhibit “P1”.

Appellant’s defence is that their ancestor was granted the tract of land by the Alafin Egungunoju who founded Igboho. The appellant comes from the Olomo Chieftaincy family and contends that the Olomo family was never under the Onigboho of Igboho. Tondi, the respondents, ancestor, the appellant further contends, got lost in the course of his hunting adventure and was discovered by Boni of Isale in the Igboho wilderness. The latter handed over Tondi to Alafin Egungunoju. The Alafin quartered Tondi in the Olowo Njaye compound of Igboho. The land in which the Okehe Baptist primary School is situate, it is appellant’s further case, was granted by Alomo through Onigboho.

At the end of trial, including addresses of counsel, the trial court found merit in respondents, case and granted them the entire reliefs they urged on the court. Dissatisfied, the appellant appealed to the lower court. Finding no merit in the appeal, the lower court dismissed same and affirmed the trial court’s judgment. The appellant has further appealed to this Court on a Notice containing four grounds.

Parties have filed and exchanged briefs of arguments in compliance with the Rules of this Court. They adopted the briefs at the hearing of the appeal on 17th December, 2013. The appellant distilled three issues on the basis of which he urges us to determine the appeal. The issue reads:-

“(i) Whether the Lower Court was right in affirming the decision of the court of first instance based on respondents’ evidence that Igboho was founded and settled upon by their ancestor, one Tondi inspite of the settled and notorious historical facts that Igboho was founded and settled upon by the Alaafin Egungunoju and various judicial pronouncement that respondents said evidence is false.

(ii) Whether the case of Kojo II V. Bonsie (1957) 1 WLR 1223 at 1226 is applicable to this cases.

(iii) Whether the lower court was right in affirming the award of damages by the court of first issue.”

The two issues the respondents formulated in their brief for the determination of the appeal read:-

“5.01 Whether the lower court was right in confirming the decision of the learned trial judge in his application of the principle of law in Kojo II v. Bonsie (1957) 1 WLR at 1226 without recourse to the case of Atoyebi & Anor v. Governor of Oyo State & Ors (1994) 5 SCNJ 62 and/or ‘The History of the Yoruba’s by Samuel Johnson.