Chief Raji Tomori & Ors V. Hosiah Motanmi & Ors (1970)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C. 

This action was commenced in the High Court of Oshogbo, (Suit NO.HOS/51/66) where the plaintiffs’ writ was endorsed as follows:-

“1. The plaintiffs’ claim is jointly and severally against the defendants for:
(a) A declaration of title to a piece or parcel of land situate lying and being at Idi Ose/Ila road at Oba in Oshogbo District, to be particularly delineated on the plan.
(b) The sum of One Hundred Pounds (100pounds) as damages for trespass committed by the defendants and/or their servants or agents on the said piece or parcel of land.
(c) For an order of injunction restraining the defendants, their servants or agents from repeating the said acts of trespass on the land.”

Pleadings were ordered and duly delivered. For their part, the plaintiffs who had instituted the action for themselves and on behalf of the Awoyale family aver in their statement of claim that they are the descendants of Lanlona who was the father of Awoyale: that Lanlona was the first settler in Oba and the head of the hunters: that as a hunter, he migrated from place to place in search of game: that as he was not stationary in Oba, he invited Lagunle, the ancestor of the 1st defendant, to settle in Oba and on his arrival, Lanlona made him the Bale of Oba: that the land now in dispute forms a portion of the land which Lanlona had settled on before he invited Lagunle to Oba and that the 1st defendant who is the present Oloba has no claim over the land.

On the other hand, the 1st defendant admitted in his statement of defence that as the Oloba of Oba, he granted the land in dispute to the 2nd to 9th defendants, and stated that under native law and custom he had the right to make the grants.
Apart from the traditional history, both the plaintiffs and the 1st defendant based their respective claims on long and undisturbed possession of the land.
The main issue raised by the pleadings was thus restricted to whether the land belonged to the Awoyale family or the Oloba of Oba.

After reviewing the whole evidence, the learned trial Judge proceeded in his judgment to deal with the evidence of history and stated that:
“The plaintiffs said their ancestor called Lanlona first settled at Oba Oke and later this Lanlona brought one Lagunle (1st defendant’s ancestor) to settle at Oba Oke. Both parties agreed that Lagunle was the 1st Bale or head of Oba Oke.

The Plaintiffs said Lanlona was not made the head of the town because he was a hunter who did not stay much at home. But one is tempted to ask why did Lanlona or his descendants not get any of the other traditional chieftaincy titles in Oba Oke as an honour of the fact that he was the founder of the town I think the fact that Lagunle and his descendants have been made head or Bale of Oba since the founding of the town supports the defendants’ claim that Lagunle was the founder and not anybody else. So on the question of traditional history I find that defendants’ story is more probable than that of plaintiffs.”

He also considered the evidence of acts of ownership and found as a fact that the land edged yellow on the plan (Exhibit A), on which St. Peter’s Church, Oba, was erected, was granted to the Church by the 1st defendant’s ancestor. We would, however, pause here to observe that that parcel of land is outside the area now in dispute. The learned Judge concluded by saying that the plaintiffs had failed to prove that they were in exclusive possession of the land and he dismissed their claim with 30 guineas costs.

The plaintiffs then appealed to the Western State Court of Appeal which allowed the appeal and ordered that judgment be entered for the plaintiffs in terms of their writ of summons.

The defendants have now appealed to this Court. Arguing the 1st and 2nd grounds of appeal, learned counsel for the appellants, Mr. Ogunsanya, referred us to the following portion of the judgment of the High Court:
“I accept the defence story that by Oba customary law it is the Oloba who makes grants of land for farming or building. The parties to this action agreed that the area in dispute is within the Oba Town Wall. I take judicial notice that land within town walls was in ancient time usually earmarked for building purposes and not for farming purposes and that the head of the town or village and his chiefs would normally make grants of such lands to families or individuals needing them.”
and pointed out that this was strongly criticised by the Court of Appeal which stated that:
“In the first place there is no where in the proceedings that the parties agreed that the area in dispute is within the Oba Town Wall. All that the first plaintiff said in his evidence under cross-examination was that ”the land in dispute is within Oba town. I know Oba town wall which is not far to the town.”

“On the side of the defence the 3rd defence witness said: “I know the town wall. It is about 4 feet. The town wall surrounds the Oba town. The land in dispute is within the town wall and not outside the wall.”

The town wall is not shown in the only plan filed in the action by the Plaintiffs and its materiality was not pleaded by either side. This finding of fact by the learned trial Judge is in our view a wrong one.

Secondly it is also equally wrong of the learned trial Judge to say that he took judicial notice that land within town walls in ancient time was equally earmarked for building purposes and not for farming etc; when there was no evidence of such ancient custom before him.

The finding based on a custom for which there was no proof before the learned trial Judge that the land in dispute is within the town wall and therefore it was land “earmarked for building purposes and not for farming purposes and that the head of the town or village and his Chiefs would normally make grants of such lands to families or individuals needing them,” is in our view erroneous, and cannot be used to defeat plaintiff’s claim that the land in dispute formed portion of the land farmed by members of their family.”