Olalere Oyetunji V. Alhaji Asiru Awoyemi & Ors (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 Osun State sitting at Osogbo delivered on the 20th day of January, 2000.

By their Further Amended Writ of Summons and paragraph 41 of the Further Amended Statement of Claim the 1st – 4th plaintiff (the 1st – 4th Respondents herein) sued the 1st Defendant (the Appellant herein) and the 2nd and 3rd Defendants (the 5th and 6th Respondents herein) claiming the following reliefs:

“1. A declaration that Omumuyiwa, Olokungboye, Lakanye and Ijaoye are the male children of Laro (also called Larooye) the first Ata-oja of Osogbo.

2. A declaration that the Plaintiffs, and all male descendants of Omumuyiwa, Olokungboye, Lakanye and Ijaoye constitute the Laro family and are the people entitled to the membership of Laro Ruling House in the Ataoja of Osogbo chieftaincy and are entitled to present candidate(s) for the Ataoja of Osogbo chieftaincy whenever it is the turn of Laro Ruling House to fill any vacancy in the Ataoja Chieftaincy.
3. A declaration that all members of the 1st defendant’s family being descendants of Orisarayi are not members of Laro Family and are not entitled to the membership of Laro Ruling House of the Ataoja of Osogbo chieftaincy and cannot present candidate(s) for the Ataoja chieftaincy whenever it is the turn of Laro Ruling House to fill any vacancy in the chieftaincy.
4. A declaration that members of the 2nd defendant’s family being descendants of Oluwin Ajibulu are not members of Laro family and are not entitled to the membership of Laro Ruling House of the Ataoja of Osogbo chieftaincy and cannot present candidate(s) for the Ataoja chieftaincy whenever it is the turn of Laro ruling house to fill any vacancy in the chieftaincy.
5. An injunction restraining the members of 1st and 2nd Defendant’s families to wit Orisarayi and Oluwin Ajibulu families, from claiming to be members of Laro family and/or Laro ruling house, or claiming to be entitled to present candidate(s) for the Ataoja chieftaincy whenever it is the turn of Laro ruling house to fill any vacancy in the Chieftaincy.
6. An injunction restraining the 3rd Defendant from recognizing the members of the 1st – 2nd defendants’ family as members of Laro Family or as entitled to membership of Laro family or as entitled to membership of Laro Ruling House of Ataoja of Osogbo Chieftaincy”.

The parties duly filed and exchanged pleadings. The case of the 1st – 4th Respondents at the court below was that Laro, their ancestor was the founder and first Ataoja of Osogbo. That he migrated from Ipole in Ijeshaland to found Osogbo. That Laro had five children, four males and one female. That they are the descendants of Laro’s male children and therefore entitled to constitute the members of Laro ruling house. They claimed that the Appellant and the 5th Respondent are not related to Laro and therefore not entitled to be members of the Laro ruling house.

They relied on a previous decision of the High court in suit HOS/41/82 – Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi III & Ors. wherein the issue as to whether Laro had any male children was considered and resolved in the affirmative. The judgment was admitted in the proceedings as Exhibit A. It was also their case that they had defended the interests of the Laro Ruling house before several Commissions of Inquiry.

The case of the appellant was that Laro was the founder of Osogbo and was Ataoja in osogbo. That he had only two children, Abogbe (female) and Orisarayi (male). That Orisarayi was Laro’s only son. He also claimed that the 1st – 4th respondents were not descendants of Laro but masquerades from Oyo. The 2nd defendant (5th respondent herein) claimed that his ancestor, Ajibulu was a brother to Laro and also testified that Orisarayi was not Laro’s son. In other words, that he and the appellant are not descendants of Laro. The 3rd defendant (6th respondent herein) did not participate at the trial.

After the conclusion of evidence from both sides and the addresses of counsel, the learned trial Judge in a considered judgment resolved the issues in favour of the 1st – 4th respondents and granted the declarations sought. The appellant, being dissatisfied with the decision filed a notice of appeal containing the single omnibus ground of appeal. With leave of court he filed an amended notice of appeal containing five grounds of appeal. The appellant, 1st – 4th and 6th respondents respectively filed and exchanged briefs of argument. The 5th respondent was represented by counsel but did not file any brief.

At the hearing of the appeal on 1/11/2012, learned counsel adopted their respective briefs of argument and urged their respective positions on the court. M. O. OKEDIYA ESQ. urged the court to allow the appeal while AYO LAOGUN ESQ., for the 1st – 4th respondents and MRS. FOLA AKINRUJOMU, DIRECTOR/ADMINISTRATOR GENERAL & PUBLIC TRUSTEE, MINISTRY OF JUSTICE, OSUN STATE for the 6th respondent urged the court to dismiss the appeal and uphold the judgment of the lower court. W. A. IDOWU ESQ., for the 5th respondent aligned himself with the appellant and urged the court to allow the appeal. The issues for determination as distilled on behalf of the appellant are as follows:

i. Having regard to the nature of the 1st – 4th Respondents claims before the lower court (which are principally for declaratory reliefs) and the pleadings and evidence of the parties especially the 1st – 4th Respondents, whether the learned trial judge was right in holding that the 1st – 4th Respondents are all descendants of Laro and constitute the Laro Ruling houses of the Ataoja of Osogbo chieftaincy.

(Grounds 1, 2 & 5 of the grounds of appeal).

ii. Whether the judgment of the Osogbo High Court in suit HOS/41/82: Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi III and Ors. could in law be the basis of the 1st – 4th Respondents’ claims and the judgment of the lower court, (Ground 3 of the grounds of appeal)

iii. Whether the judgment in HOS/41/82, Raji Gboyeola Kolawole & Ors. v. Oba Iyiola Oyewale Matanmi III and Ors. could operate as estoppel against the Appellant. (Ground 4 of the grounds of appeal).

The 1st – 4th respondents formulated the following issues: