Clement Oyegade Akinsete & Ors. V. His Royal Majesty Oba Victor Kiladejo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, sitting at Ondo delivered on 25/7/1997 granting all but one of the plaintiff’s reliefs against the defendants. The appellants herein who were the defendants at the court below were dissatisfied with the judgment and originally filed a notice of appeal containing nine grounds of appeal. With leave of this court granted on 13/3/02 they filed nine additional grounds of appeal bringing the total grounds of appeal to eighteen.

In compliance with the rules of this court the appellants originally filed a brief of argument dated 4/4/02 on 5/4/02. By an order granted on 10/12/02 the respondent was granted an extension of time within which to file his brief of argument. The brief was not filed within the time extended by the court. Subsequently the respondent filed a motion on notice dated 13/2/03 seeking an order further extending the time within which to file and serve his brief and for an order deeming the attached brief as properly filed and served.

The application was struck out on 21/10/03 for want of prosecution. Thereafter the appellant filed a motion on notice dated 1/11/06 for an order substituting the original respondent His Royal Majesty Oba F. I. Adesanoye who had died with the present respondent, Oba Victor Kiladejo. Pursuant to the substitution of the respondent the appellant filed another brief of argument dated and filed on 7/6/2007.

The respondent although duly served with all the processes in the appeal, including hearing notices, failed to take any further steps herein. On 4/12/07, pursuant to an application filed by the appellant, this court ordered that the appeal should be heard on the appellant’s brief alone, the respondent having failed or neglected to file his brief of argument.

The facts that gave rise to this appeal may be summarised as follows: The property in dispute situate at No. 5 Oreretu Street, Ondo consisting of a house and 5 shops was originally part of the chieftaincy property belonging to the Jomulaja Chieftaincy of Ondo. It was the plaintiffs (now respondents) case at the court below that there are five senior chiefs in charge of the five quarters of old Ondo and each has an official chieftaincy house with appurtenances, which he occupies with his family until his death or elevation to a higher chieftaincy title. That under the native law and custom of Ondo an incumbent is not permitted to convert the chieftaincy property to his own use or alienate it.

All communal chieftaincy property is under the trusteeship of the Osemawe of Ondo (the paramount ruler) and his council of chiefs. The council consists of five High Chiefs. According to the plaintiff, there was a slight change in the tradition when certain chiefs applied to the Osemawe-in-council for a grant of portions of the chieftaincy land attached to their particular chieftaincies.

Some of the requests were granted. However it was the plaintiff’s contention that only the Osernawe-in-council, i.e.= the Osemawe in conjunction with the five High Chiefs could grant such requests. Also such requests would not be granted in a manner that would deprive any successor-in-title of the perquisites attached to the chieftaincy particularly the enjoyment of rents accruing from shops attached thereto, which are used for his upkeep and the performance of traditional obligations.

In December 1962 the then Osemawe of Ondo, Oba R. A. Aderele made an absolute grant of the property at No. 5 Oreretu Street, Ondo to the defendants’ (now appellants) father who exercised maximum acts of ownership over it. After his death his children continued to exercise acts of ownership thereon. The plaintiff contended that the grant by Oba Aderele was made in total disregard of the native law and custom of Ondo and that it was not made by the Osemawe-in-council, the recognised authority to do so but by the Osemawe and two Chiefs, one of whom was not even a member of the council. It was also his contention that the grant was made in respect of the house built by the defendants’ father only and did not include the five shops, which are for the upkeep of the incumbent. According to the plaintiff after the death of the defendants’ father the new Jomulaja, Chief Akinshehinwa was not allowed to enjoy the five shops in the property as the appellants maintained that by the grant of 1962 the entire property belonged to their family absolutely. The issue could not be resolved up till the time the then Osemawe, Oba Adesanoye ascended the throne upon the death of Oba Adekolurejo, who succeeded Oba Aderele. He (Oba Adesanoye) therefore instituted the instant action before the lower court vide a writ of summons dated 24/1/94 to have the matter judicially pronounced upon once and for all. By paragraph 29 of his statement of claim filed on 15/2/94 the plaintiff, for himself and on behalf of the Chiefs and people of Ondo, claimed against the defendants jointly and severally as follows:

“1. A declaration that the Jomulaja Chieftaincy house at No. 5, Oreretu Street, Ondo is the traditional Chieftaincy house only for the holder for the time being of the Jomulaja Chieftaincy title and cannot be converted to a Private freehold property nor can grant of it be made to or any part of it be alienated by former holder of the chieftaincy title.

2. A declaration that the purported conveyance of the Jomulaja traditional Chieftaincy house at No. 5, Oreretu Street, Ondo to the late Chief Jomulaja Oyegade Akinsete by Oba R. A. Aderele Tewogboye II, the Osemawe of Ondo land and three Chiefs who described themselves as “Grantors and BENEFICIAL OWNERS seized in fee simple” of the said traditional chieftaincy house is null and void and of no effect.
3. A declaration that the five shops in the Jomulaja traditional chieftaincy house at No. 5, Oreretu Street, Ondo are part of the perquisites traditionally attached to the Jomulaja Chieftaincy and in the absence of a holder of the title they are to be enjoyed beneficially by the Ondo Community and the shops cannot be alienated or converted to a private freehold property.
4. An order by the court that the defendants and the Oyegade Akinsete family, should surrender the five shops which they wrongfully withhold and detain from the plaintiff and that the tenants therein be ordered to vacate the shops.
5. An order by the court-that the defendants should render an account of the rents which they collected from the five shops from February 1988 to date and pay the total rents collected to the plaintiff for the benefit of the Ondo Community.

2.

ALTERNATIVELY, an order by the court that the defendants should pay to the plaintiff the sum of N90,000.00 (ninety thousand Naira) being the assumed total rents collected by the defendants from the five tenants in the five shops at the rate of N250.00 (two hundred and fifty Naira) per month per shop from February 1988 to date for the benefit of the Ondo Community.

6. A perpetual injunction restraining jointly and severally the defendants and the Oyegade Akinsete family, their agents, servants and privies from committing further acts of trespass in the five shops and on portions of the Jomulaja Chieftaincy land not allocated to the Oyegade Akinsete family.”

In reaction to the statement of claim the defendants filed a statement of defence dated 10/3/94 to which the plaintiffs filed a reply dated 114/94. The defendants subsequently filed an amended statement of defence dated 21/6/95. Two witnesses testified for the plaintiff while the 1st appellant herein testified on behalf of the defendants. Exhibits were tendered. At the conclusion of the trial, learned counsel for both parties addressed the court. In a considered judgment delivered on 25/7/1997 the learned trial judge entered judgment in favour of the plaintiff in respect of prayers 1, 2, 3, 4 and 6 and refused prayer 5. It is against this decision that the defendants now appellants have appealed to this court.

We heard the appeal on 14/1/2013. Upon being satisfied from our records that the respondent was duly notified of the hearing date, learned senior counsel for the appellant, C. O. ADUROJA, SAN, was allowed to argue the appeal. He adopted and relied on the appellant’s brief and urged the court to allow the appeal and set aside the judgment of the lower court. He formulated five issues for determination from grounds 1 and 9 of the original grounds of appeal and grounds 10 -17 of the additional grounds. He abandoned grounds 2, 3, 4, 5, 6, 7 and 8 of the original grounds of appeal and ground 18 of the additional grounds. The said grounds are hereby struck out. The issues for determination are as follows: