Ajumobi Ogundulu & Ors v. Chief Emmanuel Olabode Phillips & Ors (1973)

B. A. COKER, J.S.C 

On the 4th December, 1972, after listening to the argument of learned counsel on both sides, we allowed the appeal in this matter and indicated then that we would later give our reasons for doing so.

The order we made then is as follows:-“After listening to both sides, we allow the appeal of the plaintiffs, set aside the judgment of the Western State Court of Appeal and restore the judgment of the High Court in Suit No. HOS/23A/ 68. We will give our reasons later. We award costs in favour of the appellants fixed in this court at 87 guineas and in the Western State Court of Appeal at 130 guineas.”
We now give those reasons.

The appellants were the plaintiffs in case No. C 19/64 instituted by them in the Ilesha Divisional Grade ‘A’ Customary Court where their writ, as amended, was endorsed as follows:-
“1. The plaintiffs claim against the defendant a declaration of title to the piece of land situate and lying at Iwara Road, Ilesha and. known as Igbo Agbo which piece of land is bounded on the 1st side by a ditch, on the 2nd side by Ayao Stream on the 3rd side by Ayo Stream and on the 4th side by Umelu community Land.
2. An order that the sale by the defendant of a portion of the said land to Pastor Anjorin of Apostolic Church, Oke Iro Ilesha in 1964 without the consent of Runsoke family be set aside.
3.  In the alternative to claim 2 above the plaintiff claim against the defendant the payment to them of the sum of 120 being proceeds of the sale of the two plots within the said land, which plots are together bounded on the one side by the Iwara tarred road, on the 2nd side by Roman Catholic School premises on the 3rd side by the remaining plaintiff’s land and on the 4th side by Rev. Fajemisin’s plot.

The defendant has refused to pay the said amount to the plaintiff family despite repeated demands.”

The only defendant originally was Chief Oguntola the Sajowa of Ilesha but apparently on account of his old age he had executed a Power of Attorney in favour of Chief Emmanuel Olabode Phillips who is now the 1st respondent before us. At the hearing before the Customary Court, the Power of Attorney was produced in evidence as Exhibit “A”. A survey plan of the land in dispute was also produced in evidence by the surveyor employed by the plaintiffs and it was admitted in evidence as Exhibit “B” (i.e. Plan No. LL4423 showing an area of 180.2 acres).

The 1st plaintiff gave evidence at the trial. He stated that he belonged to the Ogboni Chieftaincy Family in Ilesha and that his family consists of four branches, three of which he named as follows:-
(i) Runsoke alias Runsoke Egbenia;
(ii) Ajitadidun;
(iii) Omopupa.

He stated that he himself belonged to the Runsoke branch of the family and that the land in dispute, which originally belonged to one Yeyetonse, had now devolved in the events which had happened on the Runsoke branch of the Ogboni family.

The plaintiff also testified that the defendant is a Chief in Ilesha with the title Sajowa of Ilesha and that although the defendant was like himself a member and Chief of the Runsoke branch of the Ogboni family, he (i.e. the defendant) was claiming the land in dispute as the titular or stool lands of the Sajowa chieftaincy and by virtue of that claim he had been making a number of unathorised sales of the family land. He stated further in the course of his testimony that:-
“Every member of Runsoke has right, equal right over the land in dispute. The defendant is not the head of Runsoke family. I am the present head of the family and members meet in my house.”

It was also given in evidence for the plaintiffs that the members of the Ogboni family were normally not allowed to assume the title of Sajowa the incumbent of which had to perform the ceremonial rites of the worship of the God of Iron on behalf of the Ogboni family.The defendant, according to the plaintiffs, was related to the Runsoke Egbenia branch through his father, Oyawole, who was Runsoke’s son. The plaintiffs called four witnesses in support of their story.

The defence then gave evidence. Chief Emmanuel Olabode Phillips, the attorney of Chief Oguntola, the Sajowa of Ilesha, testified. He stated of the land in dispute as follows :-
“It is on Iwara Road known as Igbo Agbo. The land is chieftaincy land of Chief Sajowa. Chief Sajowa derived this title to the land from the Ogboni. Formerly Sajowa used to stay at Idoka. At one time he did not turn up to perform Ogun Festival with Owa. Owa was annoyed. He explained that he stayed at Idoka far away from him. Then Owa asked for a farm land for Sajowa from Ogboni. Then Ogboni took Sajowa to Igbo Agbo and gave it to him. Ogboni also allotted other pieces of land to others Salotun, Batisin and Lejofi. The grant was made over 200 years ago.”

Concerning the family history, the defendant testified thus :-
“Ogboni chieftaincy has farmland and land attached to it. The land in dispute is not attached to Ogboni chieftaincy. Whoever becomes Sajowa cannot become Ogboni. I know Isaac Opesusi. He instituted an action against Chief Satola Sajowa as a member of Sajowa chieftaincy family not as Runsoke family (Exhibit ‘C’). I know of three sections of the family who can become Ogboni.
They are (1) Runsoke Gbenia family (2) Ayobiodun Kankan – Ayan (3) Arifodun. I do not know of Ati family. Anyone who becomes a Sajowa remains a member of his own family. There is no Sajowa family as such, but any member of the three families could be appointed a Sajowa.” The defence called, apart from Chief Phillips, who held the power of attorney for the original defendant, four other witnesses who stated that the land belonged to Sajowa chieftaincy and not to the Ogboni Chieftaincy Family, or the Runsoke branch of that family.
In a reserved judgment, the learned President of the Customary Court, Mr. Obisanya, very carefully considered and summarised the evidence in detail. He directed himself at the beginning of his judgment thus :-

“From the evidence before me I have to decide whether the land in dispute is Sajowa’s chieftaincy land or Runsoke family land.”
After a further review of the evidence and the submissions of counsel, he expressed himself thus:-
“Having rejected that Owa gave it to the defendant as a chieftaincy land I am now left with the only evidence that the farmland belonged to Runsoke family. If in fact any Runsoke from Ogboni family other than Runsoke ever used it, it was not proper.

My conclusion is richly reinforced by the fact that the majority of people calling the present Sajowa to order from his excesses, have been members of Runsoke family. They have been keen in preserving the identity of the land at Igbo-Agbo.

There is also abundant evidence of many members of the family farming in the area. There is no evidence that any of the other Ogboni family ever farmed there.

There is the important evidence that the Sajowa was in 1958 made to accept that two members of Runsoke family should operate a bank account and made signatories whenever money is paid or withdrawn from the bank in the interest of the family. I am satisfied that the interest shown by the members of Runsoke family is a pointer to its ownership of the farmland at Igbo-Agbo.”

In the end, the learned President of the Customary Court gave judgment in favour of the plaintiffs as follows:-
“There will be judgment for the plaintiffs as follows. The title to the Igbo-Agbo farmland as described in the plan Exhibit ‘B’ and marked Red excepting the portion marked Yellow is granted to the plaintiffs and shall be known as Runsoke family land. In order that the proceeds of sales of plots sold by the defendants in 1964 amounting to 120 pounds as per plaintiffs claim and which was paid into the court by the order of court shall be withdrawn by the plaintiffs on behalf of Runsoke family.”

From this judgment, the defendant appealed to the High Court, Western State. The appeal was heard in the High Court, Oshogbo, by Fakayode, J. Before the High Court, the complaints against the judgment were to the effect that it was against the weight of evidence, that the plaintiffs did not discharge the onus of proof placed on them by law and that the learned President of the Customary Court did not appreciate the right of the Sajowa Chieftaincy to hold land as stool lands. The learned Judge on appeal, after considering the arguments on both sides, adjudged as follows:-

“In the light of all that I have said, I confirm the lower court’s decision as to declaration of title that the land in dispute, described in plan BK 3343 or plan LL 4423, belongs to Runsoke Family (a branch of the Ogboni Chieftaincy Family of Ilesha). The appeal against the order to pay over the It was urged and indeed strenuously argued that the Western State Court of Appeal was right in its view of the facts and the infernces therefrom and that the effect of the documentary exhibits already referred to had been rightly conceived by the Western State Court of Appeal.
We had no hesitation in rejecting the argument for the respondent. The duty of appraising evidence given at a trial is pre-eminently that of the court that saw and heard the witnesses. It is also the right of that court to ascribe values to such evidence and a court of appeal may not disturb a judgment simply on the ground that it would have come to a different conclusion on the facts as long as the judgment of the trial court is supported by the evidence rightly accepted by that court. The principles upon which a court of appeal intervenes to disturb findings of facts are contained in cases of which the Reports are replete and it is no use referring to them in this judgment. We will however refer to the observations of the Federal Supreme Court in Fatoyinbo v. Williams (1956) 1 FSC 87. In the present case the plaintiffs gave unchallenged evidence as to the radical title of Yeyetonse to the land in dispute, of the common ancestry of themselves and the defendant and of acts of user which the defendant admitted but failed to explain away. The only acts of user on which the defence is based were the statements contained in the exhibits which were being canvassed in the present action. It is difficult if possible at all to see what else the plaintiffs should have proved in order to justify their claim.

In the course of its judgment, the Western State Court of Appeal observed that the issue as to whether the land was stool land or not was not in evidence before the trial court or the judge on appeal, but with respect, this is a mistaken view of the entire case. That issue was the foundation of the case and indeed is the only point to be resolved in the whole case. The plaintiffs claim that the land in dispute is the family property of the Runsoke branch of the Ogboni family to which, by ancestry, the defendant also belongs. The defendants claim that the land is stool land attached to the dynasty of the Sajowa Chieftaincy. It was always common ground that there is no Sajowa Chieftaincy Family: indeed, there had never been one. To read the existence of one such family into the Customary Court proceedings and judgments, Exhibits ‘C’, ‘D’, ‘E’ and ‘F’ is to be artificial to a fault. In Exhibit ‘C’, the plaintiffs therein were the representatives of the same plaintiffs in the present suit. It is true that in their claim they described the land as the Sajowa Chieftaincy Family land but the evidence easily reveals that the claim of ownership was in respect of the Runsoke family branch. Even the defendant himself in that case and in the present case testified to the effect that he was being stopped from selling portions of family land without consulting the other members of the family, comprising the plaintiffs’ branch.

Unless the case is understood in this way or there is in fact a Sajowa Chieftaincy Family, the whole evidence would be completely meaningless. In Exhibit ‘D’ the present defendant as plaintiff had sued the defendants therein who are described as tenants. In that case, Chief Oguntola, the Sajowa of Ilesha (i.e. the defendant herein ),described the land as follows –
“Igbo-Agbo is my chieftaincy land”.
Later, and in the course of cross -examination in that case,he stated of the land in dispute:-

“In the meeting of Sajowa chieftaincy family held at Ogboni’s compound on 3rd day of February, 1958, under the chairmanship of Mr. J.O. Layide, it was unanimously agreed that an action should be instituted against Chief Oguntola the present holder of Sajowa chieftaincy title in the court of law for recovery of part of the family landed property situated at Igbo Agbo on Ilesha/Iwara road which were illegally and unconstitutionally sold by him without the approval of the family.”

Then followed the signatures of ten signatories, among whom were the 1st and 3rd plaintiffs and possibly some of the other plaintiffs. The parties to the resolution were illiterates and it is clear that, as in Exhibit ‘C’, they contemplated a family which embraced themselves as well as the defendant even though he was the then incumbent of the Sajowa title. Unless there was such a family as the Sajowa Chieftaincy Family, and this the defendant himself most vehemently disclaims, the resolution is completely meaningless in the form in which it was put.

There has, unfortunately, been a lot of confusion in this case as to the meaning and real import of the proceedings put in evidence and this was principally introduced by the Western State Court of Appeal. We think it is opportune to draw the attention of that court to the advice which the Federal Supreme Court offered in the case of Gabriel Madukolu v. Johnson Nkemdilim (1962) 1 All NLR 587.

We conclude without any hesitation that the meaning and effect given to the documentary exhibits by both the Customary Court and the learned Judge on appeal are right; we think that if the effect given to these exhibits by the Western State Court of Appeal is allowed to stand the outrage on logic would be patent and at the very least there would never be any Sajowa Chieftaincy Family to partake of the bestowals by that court.

In the end, we concluded that the appeal of the plaintiffs should succeed on both grounds which were canvassed before us and at the hearing on the 4th December allowed the appeal and gave judgment which we now explain and affirm.

SC.292/71