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5TH MAY, 1972.

SUIT NO. SC 274/1968.

3PLR/1972/14  (SC)



(1972) All N.L.R 481

(1972) 5 S.C. 38








Land Law – Declaration of Title – Powers of senior Chief under Customary Law – Powers of Shoun of Ogbomosho in respect of land in Ogbomosho.



Mr. T. Aribisala for the Appellant.

Mr. Yinka Ayoola for the Respondent.


SOWEMIMO, Ag. J.S.C. (Delivering the Judgment of the Court) (Prepared by: ADEMOLA, C.J.N.): This Is an appeal from the Judgment of the Western State Court of Appeal. The case originated from the Ogbomosho Grade C1 Customary Court, and the plaintiff’s claim In that case Is ‘for a declaration of ownership and title at Okeke Area Oke Otta Quarters, Ogbomosho, bounded at the front by Adeogun’s house, at the back by Akata stream, at the right by Ibadan compound, and left by the Baptist School Ijeru”. The Court after a lengthy hearing followed by an inspection of the land, dismissed the plaintiff’s claim, whereupon the plaintiff appealed to the Magistrate’s Court where the appeal was dismissed. The plaintiff was dissatisfied and he appealed to the High Court where again his appeal was dismissed. He then appeal to the Western State Court of Appeal which granted his appeal and gave him a declaration of title to the land in the following terms:


‘The order of this Court Is that declaration of ownership and title to the land in dispute is granted to the plaintiff/appellant as representative (of) Chief Ikolaba family which family holds the land in trust of behalf of Shoun of Ogbomosho for the use of the people.”


The defendant is dissatisfied with this judgment and has appealed to this Court. There is no plan exhibited in the case throughout the hearing in the different Courts but parties are agreed on the land, which is at the back-yard of the defendant’s building and which when measured by the Customary Court during the inspection was stated to measure 85 feet x 115 feet, and portion of which the defendant had dug a large pit partly filled with rubbish. It was also agreed that the plaintiff purported to sue in a representative capacity; he said he represented the Ikolaba Aladan family of which he is the Mogaji; he did not sue as such. It is however clear from the evidence that it is a representative action, and that the defendant was sued as representing his family. The different Courts which heard the case originally and on appeal gave effect to this, rightly in our view. Since the case originated from the Customary Court effect must be given to the true nature of the claims as well as to the parties to it, where these are clear from the evidence and the nature of the case, although they are not so expressed in the Writ.


The facts are not in dispute. Both sides are agreed on the facts. It was stated that all the land in Ogbomosho belongs to the Shoun of Ogbomosho the Head Chief of Ogbomosho, who holds all the land in trust for his people. He has under him a few senior Chiefs occupying different parts of Ogbomosho whom in the olden days he put In charge of different areas for the benefit of the people of Ogbomosho. In other words it was made easy for the people to erect dwelling houses or compounds; anyone who wanted land to build on would approach any of these senior Chiefs where the land is situated; he would allot portion of the land In his care to him, in the name of the Shoun. The evidence which is not in dispute but rather agreed upon, is that about 120 years ago, the ancestor of the defendant (3rd or 4th ancestor) approached the ancestor of the plaintiff who was the senior Chief in his area, for a portion of land, and land was allotted to him. He built on portion of the land and left the portion at the back of his building un-developed. This undeveloped area which is his back- yard, is the land now in dispute. The plaintiff, a descendant of the senior Chief known as Chief Ikolaba, now claims the portion undeveloped and sold it to another who attempted to build on it but was resisted by the defendant as land allotted to his great ancestor over 120 years ago. The plaintiff thereupon brought an action against him in Ogbomosho Grade C1 Customary Court claiming declaration of ownership and title to the land.


The Customary Court In dismissing the plaintiffs claim, said as follows:


‘The land in question was In fact belonged to Chief Ikolaba Aladan family (plaintiff), the same allotted to them by the Shoun of Ogbomosho over a century ago. According to custom, the Shoun used to allot parcels of land to everyone of his senior Chiefs known and called (Ilu Ogbomosho) to hold In trust and to allot to any members of a family or Individuals who may come after.”


“Both the plaintiff and the defendant stated and agreed that the land was given to the ancestors of the defendant about 120 years ago and the family had been in possession and in proper care of the site since then.” These parties are the fourth generation if not more since the defendant’s family had been on the land. According to custom whatever has been given should not be taken back by his or her descendants. ‘Igi ti baba be gbin, omo ki tu.’ The customary tenancy cannot allow the plaintiff to recover the land in the suit….. Any move to deprive the defendants of the ownership of the land is most unfair and unjust and does not have the backing of our custom. The defendant should continue to pay customary homage to the plaintiffs family is usual. The claim of the plaintiff is dismissed.”


To the foregoing, we may add that it is common ground that the customary homage referred to does not mean payment of tribute or “ishakole” but merely acknowledgement of the position of the senior Chief. Also the Interpretation of the Yoruba adage in the judgment as put by the learned Magistrate who heard the appeal in his judgment, and interpretation which has not been challenged, and to which we subscribe, is “whatever had been given by one’s forefathers, should not be taken back.”


As we stated earlier, the learned Magistrates, dismissed the plaintiff’s appeal, and in the penultimate of his judgment said:


“In the circumstances, I see no reason for disturbing the judgment of the lower Court. The appellants’ family are trustees of the land, not owners. The respondent’s family are their tenants.”


The learned Judge of appeal added very little to the judgment of the learned Magistrate, except in the penultimate paragraph of his judgment which reads:


‘Then the questions are (1) can plaintiff take back land which was granted to the defendant’s ancestors by plaintiff’s ancestors? the answer is ‘no’. The second question is in what circumstances can land granted away revert to grantor? Reversion can take place under native law and custom, in certain circumstances, e.g. where grantee abandons the land or where grantee dies Intestate without issue or relatives. The facts in this case do not show abandonment or extinction of defendant’s family by death. So plaintiff’s claim has been properly dismissed. The appeal fails.”


We pause here for a moment to add one more ground where, under native law and custom in certain circumstances, land granted away reverts to the grantor, namely, where land is not used for the purpose for which it was granted but used for a different purpose without the consent of the grantor, it may revert. It is therefore enough to say in the present case that this will not apply since there is abundant evidence that the defendant’s ancestor had built on the land allotted to him and merely left portion of it, now In dispute, as his back-yard.


We now turn to the judgment of the Western State Court of Appeal in this matter. The Courts proceeded on the basis that the original claim in the Customary Court was one of declaration of ownership and title to the land in dispute and nothing more; and since ownership by the Chief Ikolaba family was not in dispute, that was the end of the matter and judgment should have been so entered. We refer to a portion of the judgment. It reads:


“in our view there has been a lot of confusion at the hearing of this in that the real claim of the plaintiff/appellant has been lost sight of; If the position of the plaintiff in relation to the land in dispute has been rightly understood from the onset perhaps there would have been no necessity for this action. The plaintiff claims declaration of ownership and title to piece of land in dispute and the defendant has not at any time disputed that title; what brought about the dispute is the attempt by the plaintiff to sell part of the land originally granted to the ancestor of the defendant.”


With respect, we think if there was any confusion at all it was not at the hearing in the lower Courts. The Customary Courts was clear in its findings that the ownership of the land is in the Shoun of Ogbomosho and he holds all land in trust for the Ogbomosho people. He delegated to his senior Chiefs the power to allot to his people.


The evidence of Oyorinde (plaintiff’s fourth witness) who is the Otun of the Shoun of Ogbomosho Is clear on the point. He is the President of Ogbomosho Grade “B”1 Customary Court. He gave evidence for the plaintiff/respondent. It was the custom for anyone who wanted land to build, according to the witness, to consult Chief Ikolaba who would take the request to the Shoun. He himself got land that way. With the approval of the Shoun, Chief Ikolaba would make a grant. The Shoun and his Chiefs would later visit the land. It is difficult to see In the circumstances how Chief Ikolaba family could claim to be owner or trustee of land so given. Various epithets have been used in this case to denote the ownership of Chief Ikolaba and his family. Sometimes he is called “the owner in a limited sense’, sometimes he is called ‘the trustee of the land”. The learned Judges of the Western State Court of Appeal stated that ’the family (Ikolaba) holds the land in trust on behalf of the Shoun of Ogbomosho for the use of the people.” We fail to understand what this means since it Is accepted that the native law and custom is that the Shoun himself holds the land as trustee for his people. Undoubtedly the position of Chief Ikolaba and such senior Chiefs who were authorised to make grants is no more than that of an agent. The concept of land tenure In native law and custom is dear. Land belongs to all members of the Community or village where everyone has a right. The Head Chief holds all the land in trust for the community or the people. He gives portion of the land to a deserving member of the community who asks for ft. In a loose sense he is called the owner as he has control of the whole land. See the case Kuna v. Kuna, 5 W.A.C.A p.8. Also Kai Tongi v. Kalll 14 W.AC.A. 331, Sakaryano Oshodi v. Moriano Dakola and others (1930) A.C. 667 at p. 668. Adeyinka Oyekan v. Adele 14 W.A.C.A. 209 at p. 214.


Like the Roman Law in particular, our Customary Law takes notice of social factors. This is evidenced in our Land Law. There is what is known as social order. The Head Chief, as in the instant case, has under him senior Chiefs. He (the Head Chief) is the owner in the sense that he is in sole control of all land and he holds it in trust for the whole community and he has the sole right of making grants of portions of this land to individual members of the community under him In accordance with his needs when he asks for it But, in his exalted position as well as other matters he has to attend to, he cannot see or attend to all needs. Thus, to some of his senior Chiefs, he delegated some of his duties, of which the granting of land to different members of the community is one. Any member of the community desirous of having land to build upon therefore would approach the senior Chief in the area as the representative of the Head Chief to whom he states his case as to his needs. If he made a case, the senior Chief passes this on to the Head Chief who would authorise the grant. When the grant is made, the Head Chief, in due course, with his Chiefs will visit the site thus granted.


The concept of ownership by the senior Chief who acts as the representative of the Chief is unknown to our customary law. In the Instant case, therefore, Chief Ikolaba and his family has no scintilla of right to the land in dispute. If the land in dispute for any of the reasons we have enumerated above should revert, the land goes back to the Shoun of Ogbomosho for reallocation.


As this Is the only question in this appeal, ft disposes of the matter before us. It is fair, however, to state that the Western State Court of Appeal, did not give possession of the land in dispute to the Chief Ikolaba family (the present Respondent). This Is what the Court said:


‘The lower courts have rightly found on the evidence that the land In dispute forms part of the land allotted by the plaintiff/appellants’ ancestor to the ancestor of the defendant/respondent, but it is not necessary to Import other findings.


Into the case which are Inconsistent with the claim of the plaintiff/appellant The defendant/respondent and his family as allottees of the land in dispute are antided to remain In possession of the land.”


It is dear from the above that the Court did not dispossess the defendant/appellant On this Court) of the land. However fair this may sound the Court has failed to lay down the principle underlying this case. The judgment as a whole postulates that the plaintiff is the owner of the land but as he made no claim for possession, he was declared as owner but that the defendant’s family, as allottees of the land, are entitled to remain in possession. In that sense that is far from the truth. It must be made dear that the Ikolaba family has no right whatever to the land.


The claim in the Customary Court, on the fact of it, was for a declaration of ownership and tide but the purpose was to deprive the defendant of the possession of the land since the plaintiff had sold it to someone else. This he has no right to do. The land, by customary law, had passed to the defendant’s family, the grant having been made to the family by the Shoun of Ogbomosho. The judgment of the Ogbomosho, Grade “C’1 Customary Court which we referred to above, is In our view correct, and should not be disturbed.


In the event, this appeal will be allowed, and the plaintiff’s claim is hereby dismissed. The defendant/appellant if he has paid the costs of 55 guineas awarded against him in the Court of Appeal and the 20 guineas awarded against him by the Court as costs in the High Court, they should be refunded to him. The defendant/appellant is entitled to the six guineas costs awarded to him by the learned Judge in the High Court and also the 35 guineas costs in the Western State Court of Appeal. He is also entitled to the costs of this Appeal assessed at 70 guineas.


Appeal allowed.


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