Samuel Ajao Vs M. O. Ikolaba (1972)

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ADEMOLA, CJN. (Preparing the Judgment)

SOWEMIMO, AG. JSC. (Delivering the Judgment by the Court):

This is an appeal from the judgment of the Western State Court of Appeal. The case originated from the Ogbomosho Grade C1 Customary Court, and the plaintiff’s claim in that case is “for a declaration of ownership and title at Okeke Area Oke Otta Quarters, Ogbomosho, bounded at the front by Adeogun’s house, at the back of Akata Stream, at the right by Ibapon compound, and left by the Baptist School ljeru” The Court after a lengthy hearing, followed by an inspection of the land, dismissed the plaintiff’s claim, whereupon the plaintiff appealed to the Magistrate’s court where the appeal was dismissed.

The plaintiff was dissatisfied and he appealed to the High Court where again his appeal was dismissed. He then appealed to the Western State Court of Appeal which granted his appeal and gave him a declaration of title to the land in the following terms:-

“The order of this court in that declaration of ownership and title to the land in dispute is granted to the plaintiff/ appellant as representative (of) Chief Ikolaba family which family holds the land in trust on behalf of Shoun of Ogbomosho for the use of the people.”

The defendant is dissatisfied with this judgment and has appealed to this court. There is no plan exhibited in the case throughout the hearing in the different courts but parties are agreed on the land, which is at the back-yard of the defendant’s building and which when measured by the Customary Court during the inspection was stated to measure 85 feet x 115 feet, and portion of which the defendant had dug a large pit partly filled with rubbish. It was also agreed that the plaintiff purported to sue in a representative capacity; he said he represented the Ikolaba Aladan family of which he is the Mogaji; he did not sue as such.

It is however clear from the evidence that it is a representative action, and that the defendant was sued as representing his family. The different courts which heard the case originally and on appeal gave effect to this, rightly in our view. Since the case originated from the Customary Court, effect must be given to the true nature of the claims as well as to the parties to it, where these are clear from the evidence in the nature of the case, although they are not so expressed in the writ. The facts are not in dispute. Both sides are agreed on the facts. It was stated that all the land in Ogbomosho belongs to the Shoun of Ogbomosho, the head Chief of Ogbomosho, who holds all the land in trust for his people. He has under him a few senior Chiefs occupying different parts of Ogbomosho whom in the olden days he put in charge of different areas for the benefit of the people of Ogbomosho. In other words it was made easy for the people to erect dwelling houses or compounds; anyone who wanted land to build on would approach any of these senior Chiefs where the land is situated; he would allot portion of the land in his care to him, in the name of the Shoun.

The evidence which is not in dispute but rather agreed upon, is that about 120 years ago, the ancestor of the defendant (3rd or 4th ancestor) approached the ancestor of the plaintiff who was the senior Chief in his area, for a portion of land, and land was allotted to him. He built on portion of the land and left the portion at the back of his building undeveloped. This undeveloped area which is his back- yard, is the land now in dispute. The plaintiff, a descendant of the senior Chief known as Chief Ikolaba, now claims the portion undeveloped and sold it to another who attempted to build on it but was resisted by the defendant as land allotted to his great ancestor over 120 years ago. The plaintiff thereupon brought an action against him in Ogbomosho Grade C1 Customary Court claiming declaration of ownership and title to the land. The Customary Court in dismissing the plaintiff’s claim, said as follows:-

“The land in question in fact belonged to Chief Ikolaba Aladun family (plaintiff), the same allotted to them by the Shoun of Ogbomosho over a century ago. According to custom, the Shoun used to allot parcels of land to everyone of his senior Chiefs known and called (Ilu Ogbomosho) to hold in trust and to allot to any members of a family or individuals who may come after.” … “Both the plaintiff and the defendant stated and agreed that the land was given to the ancestors of the defendant about 120 years ago and the family had been in possession and in proper care of the site since then.”

These parties are the fourth generation if not more since the defendant’s family had been on the land. According to custom whatever has been given should not be taken back by his or her descendants. ‘Igi ti baba ba gbin, omo ki tu.’ The customary tenancy can not allow the plaintiff to recover the land in the suit …Any move to deprive the defendants of the ownership of the land is most unfair and unjust and does not have the backing of our custom. The defendant should continue to pay customary homage to the plaintiff’s family as usual. The claim of the plaintiff is dismissed.” To the foregoing, we may add that it is common ground that the customary homage referred to does not mean payment of tribute or “Ishakole” but merely acknowledgment of the position of the senior Chief.

Also the interpretation of the Yoruba adage in the judgment as put by the learned Magistrate who heard the appeal in his judgment, and interpretation which has not been challenged, and to which we subscribe, is “whatever has been given by one’s forefathers, should not be taken back.” As we stated earlier, the learned Magistrate, dismissed the plaintiff’s appeal, and in the penultimate of his judgment said:-

“In the circumstances, I see no reason for disturbing the judgment of the lower court. The appellants’ family are trustees of the land, not owners The respondent’s family are their tenants.”

The learned Judge of appeal added very little to the judgment of the learned Magistrate, except in the penultimate paragraph of his judgment which reads:-

“Then the questions are (1) can plaintiff take back land which was granted to the defendant’s ancestors by plaintiff’s ancestors? The answer is ‘no’. The second question is in what circumstances can land granted away reverse to grantor? Reversion can take place under native law and custom, in certain circumstances, e.g. where grantee abandons the land or where grantee dies intestate without issue or relatives. The facts in this case do not show abandonment or extinction of defendant’s family by death. So plaintiff’s claim has been properly dismissed. The appeal fails.”