E. T. Adewoyin and Ors v. Jones Adeyeye (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J.

The plaintiffs complain against the judgment of the 30th November, 1961, which dismissed their Suit (Ibadan No. 257/58). In their appeal they repeat their claim for a declaration of title to the land in plan CK 160/59 (on which it is shown edged red), abandon mesne profits and confine the old claim for an injunction against the defendant entering the land to one against his gathering “ishakole” from the tenants.

The defendant, they said, belongs to the plaintiffs family and may go on the land like any other member of the family; their complaint is that he is claiming the land to be his own and keeping all the” ishakole” to himself, instead of sharing it with the family. It amounts to #32,000 or more a year.

The defendant admitted in evidence that:-

“If tenants are put on family land members of the family should share the “ishakole”; but the land in dispute is mine.

The issue is whether the land belongs to the family.
Briefly put, the plaintiffs’ case is that the land originally belonged to the Otutu family, of which their family is a branch; owing to one of the Otutu family, namely Shoko Ademakinwa, monopolizing some of the family land, the Otutu family held a meeting in 1933, at which family land was allotted to various branches; and the land between Omifunfun and Idiako was one of two portions allotted to all the children of Ademiluyi, the head of the Ademakin/ Ademiluyi family (who are the plaintiffs by representation), and that allotment included the children of Ademiluyi’s younger brothers, Adebowale and Adeyeye, the defendant’s father. It is mentioned in the petition which the family, including the defendant, sent to the Native Authority oflfe in 1950. The plaintiffs go on to allege in their pleading that in or about 1947 Adeyemo Eletiko, with the defendant, began putting tenants on the land with the family’s consent on the understanding that when the tenants began giving “ishakole”, all the members of the family would share. When the tenants began paying, the defendant at first promised to share, but did not, and finally said the land was exclusively his; and he has been keeping all the “ishakole” which the tenants pay.

The defendant’s case is, briefly, that he owns the land; it did not originally belong to the Otutus. At one time the Otutus alleged that certain areas of land in Ife district belonged to them because the family had hunting rights, but (says the Defence) later court decisions stated that hunting rights in a forest did not confer ownership. The defendant admits there was a meeting in 1933, but it was over a dispute between Soko Ademakinwa and C. A. Layade over a farm at Osi Soko. The land now in dispute was then unknown virgin forest and was not mentioned. The defendant denies the plaintiffs’ allegation of his putting tenants on the land in 1947 on the family’s behalf and promising to share the “ishakole”; he alleges that since 1938 he has been farming and putting tenants on the land in his plan in his own right, and that before 1938 all the land in his plan was virgin bush.

I pause to note that his plan (L & L/A 3563) shows the land in dispute and some adjoining land besides, to which the plaintiffs lay no claim. To revert to the Defence: paragraph 18 states:-
” Believing that the Otutu family who had hunting rights over the land also had title to the said land the defendant started to cultivate the said area of land and put tenants in various parts of the land.”

Boundary disputes led to his suing one Sanni Odera in the Ife Lands Court in 1949: the plaintiffs allege that the suit was decided in favour of the family, and the defendant points out that on appeal it was held that hunting rights did not confer title but were to be distinguished from farming rights. The Defence goes on to allege that:-
“20. Thereafter the defendant approached the Oni of Ife Sir Adesoji Aderemi for a grant and confirmation of title of his holding of the land delineated in plan No. L & L/A 3563. The Oni of lfe as the custodian of unoccupied virgin forest land in Ife has the right to allocate or grant the land. The confirmation was accordingly made.”
Paragraph 23 states that it was on that authority of the Oni that the defendant and his tenants cultivated the land from pure virgin forest and built up villages. Before the grant, he had exercised openly all acts of ownership: the plaintiffs had never exercised any. When there were disputes over boundaries with neighbouring owners, the Oni sent his messengers to settle them.
It is plain that until the second pronouncement in the Lands Court on hunting and farming rights being different, everyone believed that the land was Otutu family land. When the defendant sued Odera, he says he did so on behalf of the Otutu family. Having regard to the fact that he signed the petition of 1950, which represents the land as having been allotted to the plaintiffs’ family,
which is the defendant’s also, I am inclined to think that he sued on behalf of the plaintiffs’ branch. Paragraph 18 of the Defence makes it plain that he cultivated and put tenants in the belief that the land was Otutu family land. In cross-examination he said that:-

“According to Otutu family history our ancestors had title to the farmland in dispute and we so contended in the petition but when the petition was turned down and all litigation proved abortive I decided to approach the Oni to obtain title to the land.”
He did so unknown to his family, in 1952, and obtained a grant of some 3,000 acres for himself alone.
It is not proposed to say more on the judgment under appeal than this-that it is affected by the second decision of the Lands Court in the Odera suit. Both parties at the hearing of the appeal agreed that (for reasons into which there is no need to enter here) the proceedings in that court were a nullity; it was on that basis that arguments were advanced at the hearing.

The plaintiffs’ case is simple: it is:-

A-This is, or was, rather, Otutu family land which in 1933 was allotted to the plaintiff’s branch of that family, and the defendant belongs to that branch;

B- The defendant put tenants on family land, so the “ishakole” they pay belongs to the plaintiffs’ family;

C- The defendant cannot avail himself either of the decision of the Land Court or of the grant from the Oni which he obtained thereafter.