The Olujebu Of Ijebu Vs Oso, The Eleda Of Eda (1972)

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B. A. COKER, J.S.C. 

This case has been the foundation of some painful litigation spanning a period of at least 20 years between the two neighbouring communities of Ijebu and Eda in the Ikole District of Ekitiland. The proceedings originated in the Ekiti Divisional Native Court, Ikole, where by virtue of a writ issued in 1952 (Case No. 47/52), the present respondent, as plaintiff, had claimed against the present appellant, then defendant, as follows:-

“(1) Declaration of title to the whole piece of land situated within the Eda Village area of Ikole District and known as Asemi Oniko farm-land and separated from the defendant’s portion of land by ancient boundary mark still seeable (sic) on the land till today.

(2) Court’s injunction against the defendant and or his people to cease molesting plaintiff and his people over the land.”

As stated, the case was heard by the Ekiti Divisional Native Court which after a full hearing entered judgment for the plaintiff as per the terms of his writ. Part of the judgment of that court reads as follows:-

“For plaintiff we award the whole of the disputed area as marked out in Plan No. BK.77 to the plaintiff. Asa River should be the boundary between each of the two parties’ portion of land. Any future demarcation of the two distinct portions of farm should run through this course and should terminate at the extremest end of the northern side of the disputed area beyond Ita Didu and ending at the two mounds claimed as the boundary demarcation of the Eda people, Orin-Oke people and Ijebu people farm-land.”

The present appellant who was then the defendant was dissatisfied with this judgment and he appealed against it to the Divisional Adviser, Ado-Ekiti (Mr. S. A. Thomas) who heard the appeal and allowed it setting aside the judgment of the Ekiti Divisional Native Court and awarding title in the land to the defendant. This was on the 12th October, 1956. The plaintiff then appealed against the judgment of the Divisional Adviser to the Provincial Adviser Ondo Province, who at the time was Mr. J. D. Hamilton. He heard the appeal, allowed it and set aside the judgment of the Divisional Adviser. In the course of his own judgment, given on the 23rd February, 1957, the Provincial Adviser observed, inter alia, as follows:-

“It is an accepted principle that questions of land are best settled by Native Courts and that their findings should not be reversed unless strong evidence is forthcoming to contrary. I find nothing to criticise in the Ekiti Court judgment, with which I generally agree.

ORDER: Appeal is allowed. Judgment of Divisional Adviser is set aside, and that of the Ekiti Divisional Court is restored.”

Against that judgment the defendant appealed to His Excellency the Governor, Western Nigeria but by virtue of the provisions of section 74(2) of the Customary Courts Law, Cap. 31, which had then come into force, the Chief Justice of the then Western Nigeria made an order transferring the case to the High Court, Akure, for hearing. Pleadings were filed and exchanged and after a full hearing of the case by Madarikan J., as he then was, the plaintiff’s case was dismissed with costs and all the proceedings in the lower courts were set aside. This was on the 10th April, 1961.

Against that decision the plaintiff appealed to the Federal Supreme Court and in its judgment of the 27th September, 1965, the Supreme Court held that the transfer of the case pending as an appeal before His Excellency the Governor, Western Nigeria, should have been to the appropriate magistrate’s court under section 74(2)(b) of the Customary Courts Law and not to the High Court to which it had been transferred, set aside the judgment of Madarikan J. and remitted the case back to the High Court, Western Nigeria for the Chief Justice to give the necessary directions for the transfer of the case to the appropriate magistrate’s court for hearing. Pursuant to this judgment, the Chief Justice of Western Nigeria directed by order dated the 15th October, 1965 that the case be re-heard by the Chief Magistrate, Akure. It was indeed so reheard by Mr. O. O. Sawyer, Acting Chief Magistrate, Akure, who on 2nd September, 1967 gave judgment in the case. It must be remembered that as before the Chief Magistrate the matter was an appeal by the defendant against the decision of the Provincial Adviser who had given judgment in favour of the plaintiff and awarded him title in respect of the land in dispute.

The learned Chief Magistrate ended his judgment as follows:-

“In my view, I find that the Ekiti Divisional Native Court had listened fairly to both sides and gave adequate opportunity to both sides to argue their cases. I find also that the plaintiff had established his claim sufficiently in the Divisional Court and that the Provincial Adviser was correct to have restored the decision of the Ekiti Divisional Court. I agree with the judgment of the Provincial Adviser and I would accordingly dismiss this appeal with costs.”

Dissatisfied with this judgment, the defendant again appealed to the High Court, Akure where the appeal was heard by Odumosu J., who delivered judgment therein on the 27th September, 1968 and dismissed the defendant’s appeal. Still dissatisfied with that judgment of the High Court, Akure, the defendant appealed to the Western State Court of Appeal which heard his appeal on the 26th January, 1970 and dismissed it summarily at the hearing. The defendant has now appealed to us against the decision of the Western State Court of Appeal.