Kehinde Adenibi & Anor. V. Adedibu Laojo & Ors (1997)
LawGlobal-Hub Lead Judgment Report
OKUNOLA, J.C.A.
This is an appeal against the judgment of the Oyo State High Court holden at Oyo presided over by Okeyode-Adesina J. delivered on 9/7/90 in Suit No. HOY/19/89.
The facts of this case briefly put were as follows:-
The appellants herein as plaintiffs sued the respondents herein as defendants claiming the following reliefs:
i. Declaration that under the Oyo Native Law and Custom, the plaintiffs are direct descendants of Kelebede-Ajele of Elepe Oke Compound, Iseke, Oyo.
ii. Declaration that under the Oyo Native Law and Custom the defendants are direct descendants of one Onifade of Ilogbo Compound, Akeetan, Oyo.
iii. Declaration that, prior to the promulgation of the Land Use Decree 1978, the plaintiffs as the direct descendants of Kelebeda-Ajele are under the Oyo Native Law and Custom, the rightful persons who are entitled to inherit land and property including the family compound/Kaa built by Kelebeda-Ajele (the family ancestor) at Kelebeda-Ajele Oke compound (now known and called Elepe Oke Compound) Iseke, Oyo.
iv. Perpetual injunction restraining the defendants from parading and/or behaving (sic) themselves as direct children and/or descendants of Kelebeda-Ajele Oke Compound/Kaa (now known and called Elepe Oke Compound) Iseke, Oyo.
v. Declaration that after the promulgation of the Land Use Decree, 1978, the plaintiffs are the rightful persons who are entitled to the statutory right of occupancy to all and singular the Land/Family Compound/Kaa built by Kelebeda Ajele at the Kelebeda Ajele Oke Compound (now known and called Elepe Oke Compound, Iseke, Oyo).
vi. Declaration that the Plaintiff and/or the 1st plaintiff are the rightful persons who are entitled to the statutory right of occupancy to a piece or parcel of land situate, lying and being at Ilora junction, Oyo, shown on plan No. F12270/85 of 6/11/85 drawn by W.T. Adeniji & Co. Licensed Surveyors of Ibadan.
vii. Perpetual injunction restraining the defendants, their servants, agents and privies or anybody; claiming through them from further going on the said land or dealing in anyway detrimental to the interest of the plaintiffs.
viii. Declaration that the defendants are not entitled to participate on selection and/or appointment to the Elepe-Oke chieftaincy title of Iseke, Oyo in the order of rotation through the Adekanbi ruling house.
The plaintiffs’ (now appellants) case at the Lower Court was that a large compound, including the land in dispute was granted to their ancestor Kelebeda-Ajele by Alafin Atiba. Kelebade-Ajele had three wives Ikuola, daughter of Elepe of Ahoro Iseke, Adenike Odee and Awero Iya Olosun. Ikuola begat Adekanbi, Adewoyin and Falade for Kelebeda-Ajele, Adenike Odee begat Adenibi and Awero Iya Osun begat Adeitan Ajao. The plaintiffs are the descendants of Adenibi and Adeitan Ajao. The plaintiffs contended that the land in dispute and Kelebeda-Ajele Compound was granted to Kelebeda-Ajele by Alafin Atib. The name of the Compound was later changed to Elepe-Oke Compound when Adekanbi was installed as Elepe. It is not in dispute that it was through Ikuola that the Elepe chieftaincy title came to Kelebeda Ajele Compound.
The case of the defendants on the other hand was that Ikuola the daughter of Ladokun, Elepe Iseke had three children by Adeitan her husband namely Adekanbi, Adewoyin and Falade. Adeitan died at Ahoro Iseke before the present Oyo was founded. After the death of Adeitan, Ikuola got married to Atiba who brought both Ikuola and her three children from Aharo Iseke to Oyo and built a house at Elepe Oke at Iseke which is part of the land in dispute Adeitan also had another child by another wife Ogunyemi called Adepegba. Adekanbi was made Elepe and he had only one female child Adegbami who begat Laojo Tafa & Aina by her husband Onifade of Ilogbo Akeetan Compound Oyo. Ojo Tafa begat the 3rd and 4th defendants, Laojo begat the 1st and 2nd defendants while Aina begat the 5th defendant.
The defendants further contended that Adenike Odee and Awero Iyalosun were the wives of Adepegba and not Kelebeda-Ajele. Adenike Ode begat Adenibi while Awero Iyalosun begat Adekunle, Adekanbi later sent for his half brother Adepegba to come and stay with him at Elepe Compound. The defendants denied that there was anyone called Kelebeda Ajele, or Kelebeda-Ajele family, they denied belonging to Kelebeda-Ajele family. The suit proceeded to trial and all the legs of the plaintiffs’ claim except leg 2 were dismissed.
Dissatisfied with this judgment, the appellants have appealed to this honourable Court firstly on 5 grounds and later with leave of this honourable Court granted on 11/5/93 added 4 additional grounds. From these nine grounds of appeal the appellants have formulated the following four issues for determination in this appeal viz:
- Whether the learned trial Judge was right in failing to properly consider and evaluate admissible evidence of the plaintiffs’ witnesses before him. (Ground 7)
- Whether the learned trial Judge was right in failing to take into account relevant factors but relying for his decision on irrelevant factors (Grounds 2, 3, 4 and 9);
- Whether the learned trial Judge was right in failing to hold that on traditional history as presented by the plaintiffs and their witnesses, the claim to title of the plaintiffs was established (Grounds 1, 5, and 6)
- Whether the learned trial Judge did properly and correctly apply the provisions of Exhibit “C” the Elepe Chieftaincy Declaration 1958, which was made by competent Authority in accordance with the Chiefs Law 1957 Cap. 19 Laws of Western Region of Nigeria, being the law applicable to the making of exhibit “C”, to the facts of the case. (Grounds 8)
The respondents also formulated the following two issues for determination in this appeal, which are similar to those formulated by the appellants, viz:
- Whether on the totality of the evidence before the court the plaintiffs have proved that their ancestor Kelebeda-Ajele ever acquired title to the land in dispute.
- Whether the defendants are not entitled to participate in the selection and/or appointment to the Elepe-Oke Chieftaincy title of Iseke, Oyo, through Adekanbi ruling house.
Both learned counsel to the parties filed their briefs of argument on behalf of their respective clients. Learned Counsel to the parties adopted and relied on these briefs and in addition addressed us viva voce. However, before dealing with these submissions, it must be pointed out that the respondent on page 2 of the respondents’ brief filed a Notice of Preliminary Objection be raised at the hearing of this appeal viz:
The respondent hereby submits that the first and fourth additional grounds of appear are defective, the respondent urges this Honourable Court to strike out the defective grounds of appeal and all arguments predicated on the grounds. The grounds are set on page 3 of the respondents’ briefs as follows:-
- The learned trial Judge misdirected himself in law and on the facts of the case when he applied the rule in Kojo II v. Bonsie (1957) 1 WLR 1223 at p. 1226 to resolve the conflict arising between the traditional history given by the defendants in this case by consideration of irrelevant and inadmissible evidence in evaluating traditional history …
- The learned trial Judge misdirected himself in law and on the facts of the case when he failed to take into account relevant factors and took into account irrelevant factors on the pleadings of the parties in the case before him and thereby came to a wrong conclusion.”
It is proposed to deal with the arguments of both learned counsel to the parties in respect of the notice of preliminary objection before dealing with the submission of both counsel on the issues raised. Learned counsel to the respondents/defendants contends that since both grounds complain of both misdirection in law and on the facts, they cannot stand. Learned counsel to the appellants argued in the reverse. I have considered the arguments of both learned counsel to the parties vis-a-vis the grounds and the prevailing law. The law in my view is that where a ground complains of both misdirection in law and on the facts, it cannot stand. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 P. 744. In the light of the foregoing, I hold that the notice of preliminary objection is meritorious and it is upheld. Grounds 1 and 4 in the Notice of appeal are hereby struck out. On issue 3 dealing with whether the learned trial Judge was right in failing to hold that on traditional history as presented by the plaintiffs and their witnesses, the claim to title of the plaintiffs was established. Learned counsel to the appellants Chief Bayo Olagunju submitted by way of summary at page 8 of the appellants’ brief that the learned trial Judge failed to consider and appraise the evidence of traditional history adduced by the plaintiffs through their witnesses. By way of reply, learned counsel to the respondents on page 7 para. 3.46 – 3.47 submitted that the plaintiffs have failed to prove by cogent, convincing and conclusive evidence that Atiba granted Elepe-Oke compound including the land in dispute to Kelebeda-Ajele. Learned counsel stressed further that in action for declaration such as in the instant case, a plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s evidence. I have considered the submissions of both learned counsel to the parties on this issue vis-Ã -vis the records and the prevailing law and I am of the view that the plaintiffs/appellants failed to prove their title by cogent, convincing and conclusive evidence. What is more, the plaintiffs have failed to establish exclusive possession of the land in dispute hence their claim for title ought to be dismissed moreso since their evidence of traditional history is not conclusive. See Sylvanus Odife & anor. v. Geoffrey Aniemeka & Ors (1992) 7 NWLR (Pt. 248) 491; (1992) SCNJ 337; Egonu v. Egonu (1978) 11 SC 111 p. 130; Okolo v. Uzoka (1978) 4 SC77 p.86. It is for this reason that I agree with the finding of fact of the learned trial Judge at page 65 lines 39-43 of the records which goes thus:
From the evidence before me and on the balance of probabilities derived from the facts as shown by the defendants and even by the 1st plaintiffs evidence the traditional history of the defendant is more preferable to that of the plaintiffs.
I therefore hold that the compound was never at any time known as Kelebeda-Ajele Compound. The story of the defendants which I accept is that the compound was granted to Ikuola and her children who father Adeitan had died at Ahoro … by Atiba who later married Ikuola, a then widow.”
Having gone through the evidence of the 1st plaintiff, I agree with the foregoing and hold that this issue be resolved in favour of the respondents. As regards issue No.4 which I regard as the principal issue whether the learned trial Judge did properly and correctly apply provisions of Exhibit “C”, in Elepe Chieftaincy Declaration 1958 which was made by Competent Authority in accordance with the Chiefs LAW 1957 Cap. 19 Laws of the Western Region of Nigeria, being the law applicable to the making of Exhibit “C” to the facts of the case whether the defendants/respondents are entitled to participate in the Selection/Appointment to Elepe-Oke Chieftaincy title, both learned counsel to the parties addressed us on this issue. By way of summary at page 28 paragraph 8(5) of the appellants’ brief, learned counsel to the appellants submitted that the defendants are descendants of Elepe-Oke Compound on female line and are not entitled to the Elepe Chieftaincy title. By way of reply the learned respondent’s counsel A.A. ADEMIDUN Esq. submitted that the plaintiffs/appellants were not entitled to the Chieftaincy title. I have considered the submissions of both learned counsel to the parties on this issue vis-Ã -vis the records and the prevailing law.
From the records, both parties confirm that the title came to Elepe Oke Compound through Ikuola the ancestor of the defendants. These facts were confirmed by PWs 1 & 8 in their evidence. (See p. 14 lines 14-15, 35-38; p.17 line 23, pages 18, 19, 35 and 77 of the records) PW1 in his evidence confirmed that Ikuola brought Elepe title as Adekanbi his child was Elepe whereas Kelebeda-Ajele was never an Elepe and was never connected with same. PWs 5 & 6 also confirmed that Adekanbi was Elepe. The evidence of PW8 was that Oladokun was Elepe who begat Ikuola and those only descendants of Elepe are made Elepe. PW8 affirmed that without Ikuola the title of Elepe would not have come to Kelebade Compound.
From the above pleadings and evidence read together with exhibit ‘C’ the 1958 Declaration, it is abundantly clear that the defendants/respondents are proposed candidates under paragraph 3(a) of Exhibit C. In consequence, the plaintiffs are not entitled to the Chieftaincy title. The learned trial Judge was in order in resolving the conflict in traditional history the way he did in favour of the defendants/respondents.
In sum, this appeal lacks merit and it is dismissed. The judgment of Oyo State High Court holden at Oyo in suit No. HOY/19/89 delivered by Okeyode-Adeshina J. on 9/7/90 is hereby affirmed. Costs of N1, 000.00 is awarded in favour of the respondents.
Other Citations: (1997)LCN/0316(CA)
