H.R.H. Oba Jimoh Oyebisi Faseye V. Attorney General And Commissioner For Justice Osun State & Ors (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 decision (Ruling) of J.O. Ogunleye J. of the Osun State High Court delivered on 4th October 2013 in the Ejigbo Judicial Division. The antecedent to the action which led to this appeal was a criminal matter charge No. MEJ/3C/2011 then at Ejigbo in the Ejigbo Magisterial District of Osun State.

The charge, between the Commissioner of Police V (1) Ajitena Isa Lawal (2) Adesina Asimiyu Isa Lawal was for unlawful entry into land and willfully destroying yams, palm trees and blocks contrary to section 81 and 451 of the Criminal Code of Osun State.

In the course of the criminal trial, the prosecution tendered a previous judgment on a land matter in Suit No. HOG/19/86 and there arose the question of the relevance of the survey plans tendered by the parties in the said Suit No. HOG/19/86 to determine the extent of land owned by the contesting parties in suit No. HOG/19/96.

Meanwhile, in the same Chief Magistrate Court, Mr. Soji Oyetayo acting on the instructions of Oba Kamil Ajadi Ojelabi II (Olusongbe of Songbe) (apparently as an interested party-applicant) brought a motion on notice dated 22/8/2012 praying the court for an “order directing the Surveyor General of Osun State to determine the extent of the land in dispute in Survey Plan No. LAY/LD/009/87 prepared by Licensed Surveyor L.A. Animasaun and dated the 29th day of July 1987 which was used to determine the case in Appeal No. CA/I/3/90 decided by the Court of Appeal Ibadan on the 20th day of March, 1996”.

A counter affidavit to the above application was filed by the 2nd accused in charge No. MEJ/3C/2011 that is Alhaji Asimiyu Adesina, a subject of the Olosuntedo of Osuntedo (Oba Jimoh Oyebiyi Faseye II) (Claimant/Appellant). In a ruling based on the application of the Olusongbe of Songbe in a related suit No. MEI/M.6/2012, the learned Chief Magistrate in Ejigbo pronounced as follows:

“I have considered the application before the Court. I have equally perused the affidavit in support and the counter affidavit of the Respondent. It is my view that the interest of justice will be better served if the survey plans of the two communities used in deciding the case at the Court of Appeal Ibadan is considered by the Surveyor General of the state in determining the extent of the land of the two communities.

On the last adjourned date. I gave an oral advice that since the judgment of the Court of Appeal Ibadan is not in contention, that the two communities should approach the Surveyor General of the State with the dispute surveys relied upon by the upper Court to determine the case. In view of this, I hereby order as follows:

The Surveyor General of Osun State is hereby directed to consider the two survey plans that is survey plan number LAY/LD/009/87 and survey plan number FA-12-130 which were the dispute survey plans the two communities involved in Appeal Number CA/I/90 and upon which the Court of Appeal based its judgment dated 20th day of March, 1996 in determining the boundary extent of the land of Osuntedo and Songbe Communities”.

Following the above order, the Surveyor General Osun State wrote to Mr. N.O. Sanusi of counsel to the Olosuntedo of Osuntedo to inform him of the court order and demanded some routine service fees for the project. He (Surveyor-General) nevertheless sent his men to the area in dispute to carry out the survey as directed by the learned Chief Magistrate.

Consequent on these developments, the claimant/Appellant – H.R.H Oba Jimoh Oyebisi Faseye (The Olosuntedo of Osuntedo) filed an originating summons on 9th April 2013 naming as Defendants (1) Attorney General and Commissioner for Justice, Osun State (2) Commissioner for Land and Physical Planning Osun State (3) Surveyor General, Osun State.

In the said originating summons, the Claimant asked for the determination of the following questions:

1. Whether, it is within the power of the office of Surveyor General, Osun State to determine or deal with Inter-Community boundary dispute (if any) within the Local Government Area, in Osun State, having regard to section 3, 5, 6, 7 and 8 of the Local Government and Community Boundaries Settlement Law, cap. 73 Law of Osun State 2003 and Section 10, 11, 12 and 13 of the Osun State Boundary Committee Law cap.77 Laws of State, 2013.
2. Whether the issue of title/ownership to land can be effectively, determined in the Magistrate Court having regard to section 20 of the Magistrate Court Law cap. 77 Laws of Osun State 2003.
3. Whether, the ruling of Magistrate Court sitting on 19th day of September, 2012 is to the effect, that the Surveyor General Osun State should determine the common boundary and/boundary dispute (if any) between Osuntedo town and Songbe town in Ejigbo Local Government Osun State rather than to determine the extent of the land in dispute in Suit No. HOG/19/86 between the claimant town and Songbe Town.
4. Whether an order of Court (if any) can confer on an officer of a state, to perform the duty or function which statutory (sic) provided for another officer or office in a state.
5. Whether statutory provision can be waived.

The application sought the following reliefs:

1. An order of this Honourable Court declaring that Surveyor General of Osun State or office of Surveyor General Osun State cannot determine or deal with inter-community boundary disputes.
2. An order of this Honourable Court declaring that, it is only Boundary settlement commission establish (sic) established under section 3 of the Local Government and Community Boundaries Settlement Law Cap. 73 Laws of Osun State and/or a Local Government boundary committee establish (sic) established under section 10 of the Osun State Boundary committee Law cap 91 laws of Osun State that statutory (sic) empowered to settle or deal with inter-community boundary dispute within a given Local Government in Osun State.
3. An order of this Honourable Court setting aside (if any) order of Court purporting to have empowered the surveyor General, Osun State, to determine any boundary between Osuntedo town and Songbe town, the two town (sic) towns having located (sic) with Ejigbo Local Government Area of Osun State.
4. An order of this Honourable Court restraining the Surveyor General, his agents, privies and anybody claiming through the Surveyor General from further entering the Osuntedo farmland, located at Osuntedo town for purpose of determining the common boundary and/or boundary dispute between Osuntedo town and Songbe town in Ejigbo Local Government Area of Osun State.
5. An order of this Honourable Court restraining the 3rd Defendant, that is, the surveyor General Osun State from making, producing or drawing any chart, sketch and/or map purporting for the demarcation of boundary between Osuntedo community and Songbe community all in Ejigbo Local Government Area of Osun State having not fall within the scope of the function or duty of the office of the Surveyor General of Osun State.

And for such further or other orders as this honourable Court may deem fit to make in the circumstance.