Chief Kafaru Oje & Anor V. Chief Ganiyu Babalola & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is an appeal by the defendant against the judgment of the Court of Appeal, Ibadan Division, which had reversed the judgment in favour of the defendants by Delana, J. sitting in an Ogun State High Court holden at Ilaro. The plaintiff’s claim before the High Court, as amended, was for the following reliefs:-

“(1) A declaration of Title that as against the Defendants, the Plaintiffs are the absolute owners under Native Law and Custom of all that piece or parcel of land known as Igodo Farm at Gaun in Ogun State.

(2) Two Hundred Naira (N200.00) being damages for trespass and/or waste committed by the Defendants, their servants and/or agents against the plaintiffs in respect of the said land.

(3) Injunction to restrain the Defendants by themselves, their servants and/or agents or otherwise from continuing or repeating any of the acts complained of above and/or hereunder.

(4) The plaintiffs are the owners of the said land and the defendants and their families by themselves, their servants and/or agents or otherwise have wrongfully entered the said land to fish its rivers and cut trees and valuable crops. The defendants, their families still persist in the said acts and intend to continue and/or repeat the acts hereinbefore mentioned.”

The learned trial Judge, after trial, dismissed the plaintiff’s claim in its entirety on the ground that they failed to discharge the onus of proof all them.

According to the plaintiffs the original settler of the vast area of land of which the land in dispute forms a part was Osho Agoro Olarogun who had settled there over two hundred years ago. At the time Olarogun settled on the land he met a settled community in Gaun, with its Bale. It was in fact the Bale who conferred upon him the title of Agoro of Gaun (sometimes spelt GANUN). Olarogun begat Abidogun who in turn begat, among others, Alaba, a woman. Alaba married Oyede. As a result of this marriage Osho Agoro Olarogun family allowed the couple fishing rights over the river flowing through the land in dispute. However, when Alaba died childless the plaintiffs family allowed Oyede to continue to enjoy the fishing rights over the river on condition of payment of tribute. They continued to pay this until seventy years ago when they refused to pay. As a result of their refusal to pay further tributes, Chief Ashandere brought an action against the second defendant’s family in Ake Grade A Court, Abeokuta, against one Falana a descendant of Oyede and an ancestor of the defendants. A certified copy of the proceedings of that case was tendered as Exhibit E.

Plaintiffs’ case was further that the defendants’ fishing rights over Igodo River had been forfeited or surrendered by their predecessors many years ago, but that as acts of trespass they continued to fish in the river and cut down valuable trees and dig the sand along the basin of the river and its surrounding lands.

The defendants, on the other hand, claimed that the land in dispute and all the surrounding creeks originally belonged to them through their great ancestor, Onilube, who exercised exclusive and undisturbed rights of ownership and possession over it until his death about two hundred years ago. They agreed that Oyede was their ancestor but maintained that he occupied the land as of right as a descendant of Onilube. They also denied that Oyede ever married a wife called Alaba or that there was ever such a woman in their lineage. They also vehemently denied that Oyede or any of the ancestors ever paid tribute to the ancestors of the plaintiffs, Rather, Olarogun, the plaintiffs ancestor, had settled on the piece of land in dispute with the permission of the defendants’ ancestor. Onilube, it was part of their case that Olarogun’s kith and kin had their own land at Isheri and lived there. They contended that the 1922 case, Exhibit E, was in their favour and confirmed their entitlement to the land in dispute. They also pleaded and tendered as Exhibit D another 1922 case- suit No. 32/22 of Ake Grade A Native Court, Abeokuta, in which members of the plaintiff’s family were convicted of unlawfully assaulting and wounding Falana and 3 Ors. of his family for setting fire to their huts and other property on the land.

The plaintiffs filed a reply in which they joined issues with the defendants on a number of facts in their statement of defence. Because of the prominence given to paragraphs 2, 5, 6 and 7 in this appeal, I shall set them out in full. Therein it was pleaded thus:-

“(2) As regards paragraphs 5 to 9 and paragraph 12 of the statement of defence the plaintiffs are mistaken and/or are deliberately being mischievous in their version of the plaintiffs’ relationship to the Onilube family of Isheri. The defendants are also clearly in ignorance about the land entitlement of the Onilube family. The defendants have no relationship whatsoever with the Onilube family.

(3) The plaintiffs say further that Ekibila their own great ancestor was the first Onilube (a title derived from Hube i.e. the town is in disarray) but that the family spitted into two. One moving to Gaun to found the place whilst the others went to live at Isheri.

(4) The plaintiffs say that Ekibila their great ancestor is from Ile-ife originally. He left Ile-Ife several hundreds ‘of years ago for Orile Igbehin. From Orile Igbehin he moved to Ajiran (settled at Iga Idirogbo) left Ajiran to Omoshoye and then to Wariwa. Ekibila begat Ekilodi, Osho Olarogun and Kudeko by different mothers.