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.