In The Supreme Court of Nigeria
the 4th day of
Before Their Lordships
Judgment of the Court
Andrews Otutu Obaseki. J.S.C.
This appeal concerns land at Ogbomoso and raises the important issue of the customary law governing land ownership among the indegenes of Ogbomoso. The importance of this issue lies in the fact that the traditional Ruler of Ogbomoso who goes by the title of The Shoun of Ogbomoso figures prominently in this litigation and contends that under the Ogbomoso customary law, all lands except those already granted or transferred by himself or his predecessors in office are vested in him as Shoun to the exclusion of all other persons. He agreed with the contention of the respondents that there are five Ruling Houses each with vested right of producing a candidate for the office of Shoun in rotation but debunks and vehemently opposes the contentions of the respondent that each of these Ruling Houses own and controls large tracts of land since the 1st Shoun Ogunlola. His adherence to the concept of Shoun's ownership of all lands (even though in trust for the people of Ogbomoso) and attempt to enforce his rights in accordance with that concept of Ogbomoso customary land tenure law naturallv has brought him into conflict with those who hold the contrary view of Ogbomoso customary land tenure law. This appears to be the genesis of this case.
The respondent instituted these proceedings in the Oshogbo Judicial Division of the High Court of Justice. Oyo State of Nigeria on the 18th day of June, 1980 by a writ of summons endorsed with the following statement of claim.
The plaintiffs' claim are as follows below:
The sum of
Subsequently, the 2nd appellant. on his application, was joined or added as 2nd defendant by the order of the High Court and the ground of his application appeared in paragraphs 1, 2, 3, and 4 of his affidavit in support of the motion which reads;
(1) I am the Natural Ruler of Ogbomoso and the defendant is my niece;
(2) I am by tradition and custom of Ogbomoso the person in whom title to all Ogbomoso land is vested in trust for the people of Ogbomoso including the land in dispute;
(3) All land in Ogbomoso including the land in dispute is stool land and I am the only person entitled to (before the coming into force of the Land Use Act of 1978) make grants of land to any member of Ogbomoso community who requires land;
(4) In 1974, I had a parcel of land along the Ilorin Road surveyed and a plan thereof prepared. and from the land thus surveyed, I made a grant of a portion to the defendant in exercise of my right as Shoun of Ogbomoso.
(7) In paragraphs 3, 4, 5, 6, 18, l9, 20, 2l, 23, 24, 27, 28, 29 and 30 of the statement of claim. the plaintiff made claims inconsistent with my title to all land in Ogbomoso and in particular to the grant I made to the defendant.
(8) The plaintiff also falsified the Native Law and Custom of Ogbomoso in land matters.
After the joinder was ordered, pleadings were filed by the parties i.e. the plaintiff and each of the two defendants. The 1st defendant filed not only a statement of defence but also a counter-claim for:-
(1) A declaration that the first defendant is the person entitled to a statutory right of occupancy on and over the land in dispute shown in Plan No. OD.4529A & B dated 21st December, 1979, made by Surveyor 0. Bangbose and verged Red therein and marked ''A''
The sum of
(3) A perpetual injunction restraining the plaintiff, his servants and H agents from entering the land in dispute or in any way permitting acts of trespass therein.
At the close of pleadings, the issues joined were tried by Ademakinwa, J. At the conclusion of evidence and addresses of counsel on 7th February, 1983, he adjourned for judgment and on the 21st day of March, 1983, he delivered a well considered judgment in favour of the plaintiff. In the course of his judgment, the learned trial Judge said (dealing with the counter-claim).
The judgment in Ajao's case has not, in my view, established the status of all land in Ogbomoso. Native Law and Customary Law derives its force to the extent that it reflects accepted usage in the community. (see Owonyin v. Omotosho (1961) All NLR.304 at p.309). And perhaps more importantly, the findings as to native law and custom in earlier cases are not precedents for subsequent cases (see Odunsi V. Ojora) (1961) All NLR. 283 at 287). Furthermore, judicial notice would only be taken of native law and custom and which is of such notoriety and frequently followed by the courts (see Abiodun v. Erinmilokun (1961) All NLR.294 at p.296).
In the present case, it would appear reasonable to say that native law and custom, which the 2nd defendant did not get to know of until he became the Shoun of Ogbomoso in October, 1973 could not be said to be of any notoriety at all. Similarly, it would not be said that the custom had been frequently followed. Indeed, my learned brothers, Sijuwade, J., in suit No. HOS/89/76 Prince Okanlawon & Ors. v. Gabriel Olayanju & Ors. (unreported) and Ibidapo-Obe, J., in suit No. HOS/104/76: Maria Bankole v. Alhaji Salami Bala & Ors. (unreported) have had cause severally to examine the claim that by native law and custom all land in Ogbomoso is vested in the Shoun in trust for the community but came to conclusion that such a claim is not supported by the facts of history in Ogbomoso. From the evidence adduced before me in this case, I cannot but come to the same conclusion. That being the case, I must hold and I so do, that the second defendant had no title to the land in dispute which he could validly pass on to the 1st defendant. As the saying goes "Nemo dat quod non habet. Nobody gives what he does not have. It follows therefore that the 1st defendant's counter-claim for declaration that she is the person entitled to statutory right of occupancy in respect of the land in dispute based as it is on the non-existent title of the 2nd defendant must fail and it is hereby dismissed.
On the plaintiff's claim, the learned trial Judge said:
Be that as it may, there is still the need to examine the evidence adduced by the plaintiff in support of his claim for trespass. I must say in this respect that the traditional evidence adduced in support of the plaintiff's claim was not altogether satisfactory.
It was therefore not shown how what was originally common property of Kumoye and other children of Jegioro came to be divided among only five sons of Kumoye, the fact that the descendants of the five sons of Kumoye came to be the five ruling houses of Ogbomoso notwithstanding. However, it is an established principle of law that where the traditional evidence is inconclusive, the plaintiff may still fall back on acts of (ownership and) possession exercised on the land (see Ekpo v. Ita 1 NLR.67; Idundun v. Okumagba (1976)1 NMLR. 200 at p.210). One fact that cannot be ignored or denied is that the Odunaro/Layode family had for a considerable length of time exercised in respect of land in Sabo area of Ogbomoso, of which the land in dispute forms part, acts of ownership which, in my view, are positive and numerous enough to warrant a presumption of ownership being invoked in their favour .
It is the plaintiffs case that he bought the land from the Odunaro/Layode family under native law and custom in 1959 and obtained a purchase receipt (Exhibit B) from the family. It shall be mentioned that a sale of land evidenced by receipt is not a transaction known to native law and custom (see Ogunbambi v. Abowab (1951)13 W.A.C.A. 222). The requirements for the transfer of an absolute title in land under native law and custom are that the grant or sale must have been concluded in the presence of persons who must also witness the handing over of the land (see Taiwo v. Ogunsanya (1967) NMLR.375 at page 379). The evidence adduced by the plaintiff has, in my view, established the required ingredients of a valid sale under native law and custom and I must hold that the title to the land in dispute has passed to him under native law and custom since 1959
The plaintiff in this case has proved that his title to the land in dispute is much better than that of the 1st defendant. He is therefore, in my judgment, entitled to succeed in his claim for trespass. He is also in the circumstances entitled to the order of injunction sought to protect his interest in the land. By the same token, the first defendant's claim for trespass and injunction must fail and they are hereby dismissed
In the result, the plaintiffs claims succeed and he is hereby awarded against the defendants the sum of N250.00 being general damages for trespass committed on the land in dispute. The defendants, their servants and/or agents are hereby restrained from further acts of trespass on the land in dispute. The 1st defendant's counter-claim is hereby dismissed.
The defendants were dissatisfied with the judgment and so they appealed to the Court of Appeal. Five grounds of appeal were set out in their notice of appeal as follows:-
(1) The learned trial Judge erred in law in not giving effect to (i.e. in actual fact overruling) the binding decision of the Supreme Court in Ajao v. Ikolaba (1972) 2 All N.L.R. (Part 2) 46 which
(i ) decided in rem the status of Ogbomoso land;
(ii) restated the principles of Ogbomosho Land Tenure; and
(iii) is otherwise applicable in the case.
(2) The learned trial Judge erred in law in granting the plaintiff's claims when the plaintiff failed to establish the foundation of his title i.e. that Kumoye during his lifetime divided all Ogbomoso land among his five children.
Available evidence was that Kumoye had many brothers living at the time and that a distribution of Ogbomoso land among his children in the circumstances was contrary to all accepted principles of customary law and could not and did not take place
(3) The learned trial Judge erred in law in giving judgment for the plaintiff when the plaintiff did not establish that the land in dispute was that which he claimed was granted to him by means of exhibit 'B' in the case
(4) The learned trial Judge erred in law in his approach to the documents of grant tendered in the by the plaintiff, in that he failed to appreciate that the document did not establish the title of Layode's family to the land in dispute or to any other land as pleaded or at all.
(i) The recitals in the documents conflict inter se and with the root of title pleaded by the plaintiff.
(ii) The second defendant offered reasonable and credible evidence of the transactions affecting them;
(5) The learned trial judge erred in law in not deciding the issues raised in the counter-claim.
The appeal came up for hearing before the Court of Appeal holden at Ibadan (coram, Uche-Omo, Omololu-Thomas and Sulu Gambari, J.J.C.A.). After hearing counsel in oral argument in expatiation of the submissions in the briefs of argument filed by the parties, the court gave a well considered judgment dismissing unanimously, the appeal. The lead judgment concurred in by Omololu-Thomas, J C. A. and Sulu-Gambari. J C. A. was delivered by the learned Justice of the Court of Appeal, Uche-Omo, J.C.A. In the judgment, the learned Justice spared no effort to examine every issue contested before the Court of Appeal. He was meticulous in the treatment of every issue and lucid in the decision on every issue and in his closing paragraphs said:
What is more the learned trial Judge carefully considered the competing titles of the parties and found for the respondent. He also made specific findings on the issue of trespass against the 1st course open to the trial court therefore was appellant. The only course open to the trial court therefore was to dismiss the counter-claim.
The defendants were still dissatisfied and so appealed against the decision of the Court of Appeal to the Supreme Court. The grounds of appeal, the arguments and submission advanced by counsel on behalf of the parties both in their briefs of argument and orally will now be considered for this judgment. Six grounds of appeal were set out in the notice of appeal filed by the defendants/appellants and without their particulars, they read as follows:
(1) The Court of Appeal erred in law in refusing to apply to the appeal the legal effect of the Supreme Court judgment in Samuel Ajao v. M. O. Ikolaba (1972) 1 All NLR. (Part 2) 46 and to come to a conclusion on it.
Particulars - Omitted
(2) The Court of Appeal misdirected itself in law when it held as follows:
In the light of these statements of the law by the learned Justice of the Supreme Court, the case of Odofin v. Ayoola at its highest can be said to have decided that where traditional evidence is totally rejected, evidence of acts of ownership cannot be relied upon to support a claim for title, but where it is merely inconclusive the party claiming title can rely on positive acts of ownership over a sufficiently long time per Ekpo v. Ita to establish his claim and by reason of this misdirection refused to allow the appeals of the appellants and to grant the first appellant's counter-claim.
Particulars - Omitted
Court of Appeal misdirected itself in law when it held as follows:
While it is true therefore that the Supreme Court agreed with the parties in Ajao v. Ikolaba that all the lands in Ogbomoso belongs to the Shoun of Ogbomoso, the head of Ogbomoso who holds all the land in trust for his people ......vide Giwa (Abiodun v. Erimilokun (1961) All NLR. 290 (297).
Particulars - Omitted
(4) The Court of Appeal misdirected itself in law when it held:
(i) In arguing ground 2 learned counsel for the appellants correctly submitted that the plaintiffs/respondent's title was anchored on that of the Layode (Odunaro) chieftaincy families It was therefore not shown how what was originally a common property of Kumoye and other children of Jegioro came to be divided only among five sons of Kumoye . Because of this, he was not satisfied with the plaintiff's traditional evidence .. He therefore proceeded to consider whether title had otherwise been established by the plaintiff/respondent.
(ii) It may well be that there was a time in the distant past when Shouns of Ogbomoso exercised rightly or wongly such powers over Ogbomoso land If the 2nd defendant/appellant wants to change the present custom, he will be well advised that the best course is not litigation with his subjects, but by common consensus of his people.
Particulars - Omitted
(5) The Court of Appeal misdirected itself in law when it failed to allow the appellant's appeal on the ground that the respondent failed to prove that the land in dispute is the same land over which he asserts title, after holding as follows:
This (i.e, the complaint in ground 3) is based on the correct observation that whilst the 1959 memorandum of sale, Exhibit B tendered by the respondent shows the land sold to him to measure 100ft x 100ft., the plan filed by him in support of his case - Exhibit A, which agrees with the plan attached to his 1975 conveyance - Exhibit C gives the measurement of the land sold to him to be 125ft. 5 inches x 61ft. 4in x 106ft 5ins. x 76ft. 9ins. Because of this ..
Particulars - Omitted
(6) The Court of Appeal misdirected itself in law when it held as follows:-
Appellant's learned counsel only dealt with and faulted seven out of eleven documents with which Layode's family are directly connected
I have dealt with the documents criticised so as to show that not all of them are null and void and that some of them therefore support the claims of Odunaro/Layode family to parcels of land conveyed.
Although the trial Judge did not specifically consider the objections made to these documents raised by the appellant's counsel in his address, he stated his observation, findings and conclusions as to their effect as follows:
Particulars - Omitted
Arising from the grounds of appeal, four issues for determination in the appeal were formulated by the appellant in their brief as follows:
(1) was the Court of Appeal (as also the High Court) not bound by the Supreme Court decision in Ajao v. Ikolaba (1972) 1 All NLR (Part 2) 46 on Ogbomoso customary law relating to land tenure - and does refusal of the courts to follow and give effect to the prin ciples laid down therein (and in the Evidence Act) in a matter on all fours, not vitiate the decision of the Court of Appeal?
(2) Where the incidents of a customary land tenure have been established by evidence in a suit supported by a decision of the Supreme Court. is the Court of Appeal entitled to shy away from giving effect to that custom. without evidence that the custom has been changed by the community - in other words, can the court indirectly change the custom?
(3) Where the plaintiff fails to prove the radical title to land pleaded. can he in the same breath shift his ground and rely on acts of ownership which should have derived from the radical title, as proof to title to the land? Would it not be fatal to his case and title if he adduced oral and documentary evidence of conflicting histories of his ownership?
(4) In view of the decision of the Supreme Court in Odofin v. Ayoola (1984)11 SC.72 to the effect that where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession which should have derived from that root - was the Court of Appeal right in not giving effect to that decision on the views which it expressed at pages 212 to 219 of the record?
(5) In an action for trespass which raises the issue of title to land, is the plaintiff not bound to establish with clarity and precision the area of land of which he claims to be beneficial owner by purchase and should the Court of Appeal not have dismissed his claim for trespass and injunction after holding that the area of land on which he complains of trespass is at variance with that which he claimed to have purchased?
These are issues the resolution of which depends on the findings of fact made by the High Court and affirmed by the Court of Appeal.
The respondent however, formulated two questions for determination in this appeal as follows:
(1) whether by the customary law prevailing in Ogbomoso all land in that area of Oyo State belongs to the Shoun of Ogbomoso so that anyone claiming to sell land can only validly do so by tracing his title directly or indirectly to the Shoun.
(2) was the High Court and the Court of Appeal correct in relying on evidence of acts of possession to establish the title or the right to possession of the plaintiff?
The issues formulated in the appellants' brief and the respondent's brief do arise but the issues formulated in the respondent's brief are more germane and their resolution will easily dispose of this appeal.
Taking the issues formulated in the appellants' brief one by one, issue No.1 charges the High Court and the Court of Appeal with a violation of stare decisis - the doctrine of precedent - on which the development of law in common law jurisdiction is firmly entrenched. Very many questions radiate from this apparently direct and simple issue. The first is whether the two courts below found the case of Ajao v. Ikolaba (1972) I All NLR. (Part 2) 46 on all fours with the instant appeal. The second is whether if the two courts found the instant appeal on all fours with the case of Ajao v. Ikolaba (supra) they refused to follow it. The third question is whether they did not find the instant appeal on all fours with Ajao v. Ikolaba (supra). The 4th question is 6 whether the customary law governing land ownership in Ogbomoso was ever in issue in Ajao v. Ikolaba. The 5th is whether the two courts below found that the customary law governing land ownership in Ogbomosho was in issue in Ajao v. Ikolaba (supra). The 6th question is whether the two courts below properly distinguished the instant appeal from Ajao v. Ikolaba (supra)
The 2nd issue or Issue No.2 formulated in the appellants' brief poses a hypothetical question and no indication that the question arises from the facts of this case has been given. If it had been an issue in this appeal, the ready answer would have been in the negative, i.e. a Court of Appeal is not entitled to shy away from giving effect to custom' established before it or in proceedings from the High Court in an appeal before it.
Issue No.2 speaks of shying away while Issue No.1 talks of refusal to follow Ajao v. Ikolaba (supra).
Issue No.3 poses another hypothetical question. It could easily find suitable premises in the instant appeal if there is evidence that the respondent departed from the case set out in the pleadings in his testimony. It is settled rule of law in any court that parties are normally not allowed to shift from the case set out in the pleadings to another case not set out in the pleadings.
Issue No.4 complains that the Court of Appeal did not give effect to or apply the decision in Odofin v. Ayoola (1984) 11 SC.72 on non-existent root of title. If the root of title is non-existent it is non-existent and no act of possession can provide evidence of non-existent title other than its non-existence.
Issue No.5 also poses a hypothetical question. The question can be easily properly premised on the facts of this case. The short answer to the question is that if title is in issue in an action for trespass, the area of land to which title is claimed is also in issue and has to be established as claimed and or pleaded.
Although the issues formulated in the appellants' brief are five as against two in the respondent's brief, the two issues in the respondent's brief focus attention on the real questions for determination in this appeal.
Issue No.1 shows that there is real contention as to whether all lands in Ogbomoso belong to the Shoun and title to any land can only be acquired directly or indirectly from him. In other words, can title to some land in Ogbomoso be acquired from persons or family other than the Shoun according to Ogbomoso customary law?
Issue No.2 poses the question of the correctness of the Court of Appeal in relying on the evidence of acts of possession to establish title or right to possession of the plaintiff?
Proof of Customary Law
A very great issue has been made in this appeal of the customary law governing the ownership and transfer of title to land in Oghomosho. The great divide is between the appellants (who contends that all land in Ogbomoso is stool land in the sense that the Shoun as the traditional Ruler holds the land for the use and benefit of his people the Ogbomoso community) and the respondent (who contends that not all Ogbomoso land is stool land and that each of the five Ruling Houses own parcels of land title to which they can transfer and have been transferring to purchasers without let or hindrance. It is not the contention of the respondent that there are no stool lands in Ogbomoso. His contention merely limits the area of stool land in Ogbomoso to a portion of Ogbomoso land. This contention did not arise in the case of Ajao v. Ikolaba (1972) 1 All NLR (Part 2) p.46 which originated in the customary law. Since then several cases have been instituted in the High Court as a Court of first instance and they support the contention of the present respondent. In the High Court, unlike the customary Court, or area court, proof of customary law in any particular case is governed by section l4 of the Evidence Act, Cap.62 Laws of the Federation l958 or the similar provision in the Evidence Law of any State in the Federation of Nigeria. That section reads:
1. A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall be upon the person alleging its existence.
2. A custom may be judicially noticed by the court if it had been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the person or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
3. Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them; provided that in the case of any custom relied upon in any judicial proceeding, it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice equity and good conscience.
Judicial notice is therefore an alternative method of proof of customary law. However, the provision of subsection (1)(c) of section 73 of the Evidence Act enjoins the court to take judicial notice of the following facts to wit:
all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in Nigeria or the Supreme Court or former Supreme Court of Nigeria or by the High Court of the Region (now State) and all customs which have been duly certified to and recorded in any such court.
Unlike statute laws, customary laws in Nigeria have not been codified and their proof in the superior courts is mandatory. Before continuing the consideration of the issues in this appeal, a brief statement reflecting the material facts pleaded and established before the courts below in this case is necessary. In this regard, I shall refer to the amended statement of claim.
The plaintiff/respondent has not claimed a declaration of title to the land in dispute. The claim is for damages for trespass. Issues as to title have been raised by the defendants. It is first defendant/appellant who proceeded to file a counter-claim claiming declaration of entitlement to a statutory right of occupancy in respect of the land in dispute. Of particular relevance to my consideration of the issues are paragraphs 3, 5, 5A, 7, 9. 11, 13, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 27 and 28 of the amended statement of claim which read as follows:
3. The land in dispute is part of the land formerly belonging absolutely under native law and custom to Layode family lying and situate at Sabo, Ogbomoso and forming part of a large tract of Layode's family land at Ogbomoso held from time immemorial;
was in or
the sum of
5A. Thereafter, by a paper writing, a memorandum of sale and receipt of the purchase price of the land dated 11th day of December, 1959 was made in favour of the plaintiff;
7. Immediately after the sale, the plaintiff was put in possession and the plaintiff went into immediate possession and has been exercising absolute right of ownership on the said land since 1959 without hindrance, obstruction or challenge from anyone.
9. In 1974, the Ogbomoso local government trespassed on the land by attempting to construct an incinerator on the land and on being challenged by the plaintiff the Ogbomoso Local government had the incinerator removed.
11. By a Deed of Conveyance dated the 2nd day of October, 1975 made between (I) Ladoye Adisa Lavode (Magaji) (2) Emmanuel Nkanlola Layode (3) Lasisi Okunlola Layode and (4) Raimi Ladipo (for themselves and on behalf of the Layode chieftaincy family and the plaintiff. registered as No.48 at page 48 in volume 1827 in the Register of Deeds kept at the Lands Registry at Ibadan. Oyo State of Nigeria. the land in dispute was conveyed in fee simple absolute by the Layode family to the plaintiff.
13. Soon after depositing the stones and sand on the said land, the Shoun of Ogbomoso. His Highness Oba Jimo Oladunni Oyewunmi Ajaguoghade III invited the plaintiff and demanded of him his document of title to the said land
14. The Shoun claimed that the plaintiff's Deed of Conveyance was invalid alleging that only the Shoun of Ogbomoso could dispose of land in Ogbomoso and advised the plaintiff to collect his money from the Layode's family
15. The Shoun requested the plaintiff to repurchase the said land from him which request the plaintiff refused to comply with;
16. On or about the 7th day of June, 1980, the plaintiff found that the defendants' agents and or servants had demolished the wooden fence, removed the plaintiff's survey pillars, stones and sand, and were clearing and digging a foundation on the land in dispute.
18. The land in dispute belonged to the Layode family from time immemorial and is not part of a stool land or part of Igbo Igbale or Shoun Palace land.
19. The plaintiff shall contend at the trial that stool laud in Ogbomoso are public or continuity land and are vested in the Shoun of Ogbomoso as a trustee to be granted for the use or benefit of the Ogbomoso as a trustee to be granted for the use or benefit of the five ruling houses. The plaintiff shall rely on various documents and Deeds issued on stool lands, especially the Deed of Conveyance executed in favour of the Ogbomoso local council or government in respect of 'Igho Igbale' land.
20. That each of the five (5) Ruling Houses of the Shoun of Ogbomoso chieftaincy has its separate and distinct vast tract of land, which is sold or granted by the respective Ruling Houses without interference from other Ruling Houses or the reigning Shoun. The plaintiff shall rely on various Deeds of Conveyances referred to hereinafter.
22. The land in dispute originally formed part of the land originally owned by the first Shoun of Ogbomoso named Shoun Ogunlola under native law and custom.
(i) Shoun Ogunlola begat Jegioro
(ii) Jegioro begat Kumoye
(iii) Kumoye begat (5) children namely:-
23. Kumoye, during his lifetime and in his capacity as Shoun of Ogbomoso, divided under native law and custom the Shoun's family land amongst his five children, granting each of them distinct and separate parcels of land in Ogbomoso.
24. The five (5) children of Kumoye presently make up the five (5) Ruling House families of the Shoun of Ogbomoso chieftaincy family and are variously named:
1. Odunaro (Layode)
2. Bolanta (Elepo)
3. Oluwusi (Gbagun)
4. Baiyewuwon (Laoye)
5. Toyeje (Aburumaku)
The facts pleaded by the plaintiff/respondent were not all admitted by the defendants in their statement of defence. Of particular relevance also are paragraphs 6, 7, 8, 10, 14, 15, 17 and 20 of the amended statement of defence and counter-claim of the 1st defendant/appellant. These paragraphs read:
6. With reference to paragraph 19 of the statement of claim, the first defendant admits only that all land in Ogbomoso is stool land and isvested in the Shoun of Ogbomoso who holds the land in trust for the cotamunity. The first defendant denies that the Mogajis who are only agents of the Shoun in procedures relating to the grant of land to members of Ogbomoso community, have any rights to land in Ogbomoso.
The use of the word "admits" in this paragraph is misleading in view of the facts pleaded in paragraph 19 of the statement of claim. It was never pleaded that "all lands in Ogbomoso is stool land vested in the Shoun of Ogbomoso (italics mine)
7. Specifically, the Layode family (alias Odunaro family) has no right, interest or title in land in Ogbomoso as stated in paragraphs 29 and 30 of the statement of claim or at all and accordingly, the alleged transactions referred to in paragraphs 29 and 30 of the statement of claim are contrary to Ogbomoso customary laws.
8. The first defendant avers that according to the customary law of Ogbomoso, all land in Ogbomoso is stool land vested in the reigning Shoun who holds the same in trust for the Ogbomoso community.
10. The Shoun of Ogbomoso is in sole control of all Ogbomoso land and has the sole right (to the exclusion of all others) of making grants of portions of land in Ogbomoso to individual members of the community.
11. In exercise of his customary rights over Ogbomoso land as the reigning Shoun of Ogbomoso, the second defendant, the uncle of the first defendant, made a grant of the land in dispute (free of charge) to the first defendant under customary law in November, 1974 and thereafter by a paper writing under his hand dated 19th November, 1974 made a memorial of the same.
12. Upon the said grant, the first defendant went into possession performing and exercising maximum right of ownership and possession over the land in dispute, which is in the urban area of Ogbomoso and has remained in possession to this day.
14. All vacant land in Ogbomoso (Sabo and elsewhere) and all land which under Ogbomoso customary law had reverted to the Shoun could be dealt with as stated in paragraph 11 hereof by the Shoun.
20. Upon the grant of the land in dispute as shown in plan No. OB4529A & B (only the portion verged RED and marked A is in dispute) by the 2nd defendant to the first defendant, the first defendant became seized of the land beneficially, under Ogbomoso customary law to this day and on the coming into force of the Land Use Act was the person in whom the right of occupancy resided.
21. The plaintiff since 1979 has persistently trespassed into the land in dispute depositing stones and sand thereon trying to build a fence on the land, disturbing the 1st defendant's agents, servants and workmen on the land and generally setting up claims inconsistent with the first defendant's title, rights and interest in and over the land." The facts pleaded in paragraphs 6, 7, 8, 10, 11, 12 and 14 of the first defendant's amended statements of defence and counter-claim were also pleaded in paragraphs 6, 7, 8, 10, 11, 12 and 14 of the 2nd defendant's amended statement of defence to emphasise their importance to the defence. In addition, the 2nd defendant in his amended statement of defence pleaded in paragraphs 15,16, 17, 19, 20 and 21 as follows:
15. It is also the customary law of Ogbomoso that any person to whom land has been granted by one Shoun cannot be expropriated by a Shoun's successor in office.
16. The second defendant avers that Ogbomoso customary law of land tenure has been recognised and acknowledged by the courts of this country and will rely on Appeal No. SC.274/1967 Ajao v. Ikolaba decided by the Supreme Court of Nigeria on 5th May, 1972.
17. In 1974, on becoming the Shoun of Ogbomoso, the second defendant commissioned a survey of a parcel of land at Sabo along Ilorin Road, Ogbomoso. The survey was made by O. Bamgbose, Esquire, Licensed Surveyor who produced Plan No.OB.1205 dated 31st August, 1974 and the Surveyor-General issued a receipt No.109 dated 2nd November, 1974 for N200.00 for payment made to him for the survey.
19. The 2nd defendant and his predecessors in office have made absolute and limited grants of land in the area of the land in dispute and other parts of Ogbomoso in exercise of their customary rights and traditional rights over every inch of land in Ogbomoso as herein before stated and in proof, the second defendant will rely on any or all of the under-mentioned papers and documents, that is to say -
20. With further reference to paragraphs 18, 19,20, 21, 22,23,24, 25, 26, 27, 29 and 30 of the statement of claim, the second defendant avers that Ogbomoso land which was owned and controlled by the first Shoun of Ogbomoso was never partitioned nor was it distributed among the descendants of the said Shoun, but was held by successive Shouns in trust for the community as aforesaid.
21. One result of the averment in paragraph 20 hereof is that the office of Shoun is held in rotation by the five chieftaincy families of Ogbomoso.
The pleadings therefore projected two main issues which pose the questions:
(1) Whether the Shoun is entitled under Ogbomoso customary law to all vacant lands in Ogbomoso and vested with power to alienate them
(2) Whether all land in Ogbomoso is stool land which only the Shoun of Ogbomoso can alienate.
The learned trial Judge, Ademakinwa, J., considered these issues and expressed the following opinions and findings:
I believe the determination of the validity of the 2nd defendant's contention should be made first before any of the other issues raised herein, since if it is established that all lands in Ogbomoso are by native law and custom vested in the 2nd defendant then it would follow that the Layode family would have no title to pass onto the plaintiff and it may be necessary to go much further into the matter.
It is a cardinal rule of the law of evidence that native law and custom is a question of fact to be proved by the party asserting it. (See Giwa Abiodun v. Erinmilokun (1961) All NLR. 294).
Although the second defendant was very categorical in his assertion that all lands in Ogbomoso are by custom vested in him as the Shoun and that no family owns land in Ogbomoso, his evidence was in essence contradicted by the 2nd d.w. Alhaji Mustafa Buari, who, under cross-examination, disclosed that his own family land is at Sene village - about 8 kilometres from Ogbomoso township and that it was only his family that can grant land to any body on the area ..
It is remarkable that on a crucial point as this, the second defendant could not get any of his chiefs to testify for him as to the existence of such a custom
I do not believe that the custom claimed by the 2nd defendant could, on the basis of two or three documents, be said to have been sufficiently tested to be accorded recognition by the court.
In contradiction of the 2nd defendant's contention as to the custom regarding land in Ogbomoso, the plaintiff apart from oral evidence of himself and his witnesses, has tendered the true copies of fourteen (14) Deeds of Conveyance (Exhibits D-D3, D5-D7, E-E1, F, G, J, K and N some dating back to 1958 to prove that the plaintiffs vendors, the Odunaro Layode Ruling House, as well as the defendant's Ruling House and other families in Ogbomoso have been selling lands in Ogbomoso as their respective family property significantly Exhibits 'E' and 'E1' show that the 2nd defendant when he was still a Prince had in 1966 and 1969 respectively bought land from the plaintiffs vendors. Similarly, Exhibit F shows that the same 2nd defendant, before he became the Shoun bought land from his own family, the Gbagun or Lobanika family in 1971. He had however attempted to explain off the transactions by saying that he was then resident in Jos and was not then familiar with the custom he is now asserting. I must say that I find this explanation hardly credible. That notwithstanding, the conclusion appears inescapable that a custom that was so recondite that the 2nd defendant as a future traditional ruler and at the same time a successful businessman did not get to know about it to the extent that he invested his money in the purchase of land in his home town on three different occasions could hardly be said to be generally accepted in the community.
Furthermore, even if the 2nd defendant could explain off the transactions covered during the period he was a businessman in Jos, it would appear that such an explanation would not avail him as regards the transactions in land which have taken place since he became the Shoun of Ogbomoso as exemplified by Exhibit D4 and H
In Exhibit 'H' dated 4th September, 1976, the 2nd defendant together with seven other persons as 'Head and Principal and accredited representative of Gbagun Ruling House of Shoun of Ogbomoso family" conveyed a parcel of land along Ilorin Road, to J.O. Oyewunmi & Company Limited, a company which the 2nd defendant admitted being the Managing Director. The recital in the Deed stated that the Gbagun Ruling House of Shoun of Ogbomoso Family was seised and possessed of the land 'by settlement and occupation under native law and custom from time immemorial" .
The plaintiff in further proof of his own contention that there was no such custom as claimed by the 2nd defendant tendered Exhibit 'M' which is an indenture dated the 1st of November, 1965 by which a previous Shoun, His Highness Olatunji Elepo II disclaimed any right over a parcel of land at Ojaigbe which he had earlier erroneously granted to one Jacob Ayoola Oyewunmi but later discovered to belong to the Oyewunmi Ruling House.
The plaintiff maintained that the only parcel of land jointly owned by the five Ruling Houses in Ogbomoso is 'Igbo lgbale' on which the Ogbomoso Central Local Government Secretariat now stands. In proof of this fact, the plaintiff tendered Exhi bit 'L' a Deed of Conveyance dated 1st March, 1973, by which the then reigning Shoun Oba Salami Ajiboye Itabiyi II and the Mogajis of the five Ruling Houses jointly conveyed the land to the Ogbomoso District Council. One could safely infer from Exhibits 'L' and M' that the previous Shouns did not subscribe to the view of the 2nd defendant.
After considering the acts of possession by the parties and in particular Exhibits D, D2, D3, D5, D6, D7, and K, the learned trial Judge observed as follows:
Of particular note is Exhibit 'K' which relates to the Deed of Conveyance dated 31st day of December, 1958, by which the Odunaro Layode family granted land to the late ChiefS. L. Akintola, a legal practitioner and former Premier of Western Region of Nigeria. Certainly if the title of the Odunaro Layode family to the parcels of land covered by the above mentioned Exhibits was not generally recognised in Ogbomoso, a person of the calibre of the late Chief S.L. Akintola would not have patronised the family and of course the defendants in the present case would have been able to show instances where the family title has been successfully challenged. I am therefore satisfied that the Odunaro Layode family was in possession of the parcels of land covered by the above-mentioned Exhibits. There is evidence which I accept that the parcels of land covered by the above-mentioned Exhibits are adjoining to the land in dispute. It is the presumption of law that acts of possession exercised in respect of an area may be evidence of ownership in respect of adjoining land (see section 45 of the Evidence Act; Okechukwu and others V. Okafor and others (1961) All NLR. 685). 1 would therefore hold on the foregoing principle that the land now in dispute belongs to the Odunaro Layode family before it was sold to the plaintiff
The above findings and conclusions and judgment were affirmed by the Court of Appeal.
In this court, learned counsel for the appellant concentrated his criticism of the judgment of the court below on two areas, viz;
(1) where the Court of Appeal failed to uphold his submission that the case of Samuel Ajao v. Ikolaba(1972) 1 All NLR. (Part 2) 46 settled the customary law governing the acquisition of title to land and
(2) the discrepancy in the size of the land claimed by the respondent in his statement of claim and the dimensions stated in the purchase receipt Exhibit B, and the dimensions stated in the plan attached to the Deed of Conveyance Exhibit C.
Learned counsel for the respondent in reply submitted that the generality of the decisions of the superior court support the contention of the respondent that it is not the correct state of the customary law of land tenure of Ogbomoso to state that the reigning Shoun is in sole control of all Ogbomoso land and has the sole right (to the exclusion of all others) of making grants of portions of land in Ogbomoso to individual members of the community. He further contended that it is also not correct to say that under Ogbomoso customary law all vacant land in Ogbomoso (in Sabo and elsewhere) are under the control of the Shoun to be dealt with as the Shoun wishes. It is also not correct to say that the Shoun has the sole right of making grants of portions of all Ogbomoso land to purchasers, lessees or transferees. Ajao v. Ikolaba (supra) correctly states the law in respect of stool property only. In Ajao v. Ikolaba (supra), the customary law applicable to the land in dispute was not in issue. This is clear from page 47 of the report, which reads:
The facts are not in dispute. Both sides are agreed that all land in Ogbomoso belongs to the Shoun of Ogbomoso the head chief of Ogbomoso who holds the land in trust for his people. He has under him a few senior chiefs occupying different parts of Ogbomoso whom in the olden days he put in charge of different areas for the benefit of Ogbomoso. 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 anyone 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 a portion and left the portion at the back of his building undeveloped. This undeveloped area, which is his backyard 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 Ogbomoso Grade C1 customary court claiming declaration of ownership and title to the land.
He lost in the customary court. His appeal to the Magistrate Court was dismissed. From there, he appealed to the High Court and lost. From the High Court, he appealed to the Western State Court of Appeal and won. The defendant being dissatisfied then appealed to the Supreme Court and won.
Commenting on the rights and interests of Chief Ikolaba, the Supreme Court, per Sowemimo, J.S.C. (as he then was) said:
The evidence of Oyerinde (plaintiff's fourth witness) who is the Otun of the Shoun of Ogbomoso is clear on the point. He is the President of Ogbomoso 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 consuIt 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 the 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 the land so given .
Undoubtedly, the position of Chief Ikolaha 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 clear. Land belongs to all members of the community or village where everyone has a right. The head chief holds all 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 it. In a loose sense, he is called the owner as he has control over the whole land. See the case of Kuma v. Kuma 5 W.A.C.A. p.8. Also Kai Tongi v. Kalil 14 W.A.C.A. 331 Oshodi v. Dakolo and others (193O) AC.667 at 668. Adeyinka Oyekan v. Adele 14 W.A.C.A. 209 at p.214 .
The concept of ownership by the senior chief, who acts as the representative of the head 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 enunciated above should revert, the land goes back to the Shoun of Ogbomoso for re-allocation.
As this is the only question in this appeal, it disposes of the matter before us.
I have set out the facts, the comments and decision of the Supreme Court above in detail so as to elicit and project the real question for determination before the Supreme Court. Chief Ikolaba was an agent of the Shoun in making a grant of the land in dispute to the great ancestor of the appellant but the descendants of Ikolaba believed that he was owner of the land and proceeded to claim a declaration of ownership or title to the land. The binding force of this authority is determined by the only question for determination in the appeal which was deliberated upon. The authority of the Shoun of Ogbomoso to make a grant of the land in dispute was never in issue neither was all the land in Ogbomoso the subject-matter of the claim. The value of this case as authority in support of the contention of the appellant is therefore limited in scope and created avenues for the courts below to distinguish it from the instant appeal.
What is the evidence against the appellants' contention? It is to be found in the declarations in Exhibits D to D3, D5 to D7, E to El, F. 6, H, J, K and M. N. The statement of claim concedes that the Shoun has control of stool land and has the sole right in association with the Mogajis of the Ruling House of making grants of parcels of stool land to members of the community. The contention of the respondent therefore, is that not all land in Ogbomoso is stool land and the land falling outside the area of stool land is owned by persons and families other than the Shoun. This is what the above exhibits, admitted in evidence, have tended to show and clearly established.
The 2nd appellant (the Shoun) featured as a party to the transaction in Exhibits D4 and II since he became the Shoun of Ogbomoso.
Since traditional rulers including the 2nd appellant, are the repository of the custom of their people or communities, the evidential value of these instruments is enormous and I would say fatal to the contention of the appellants. Under our law, customary law is a question of fact (see Taiwo v. Dosunmu (1966) NMLR 94 to be proved by evidence. (See Ologbolu v. Okeluwa (l96l) 6-7 SC. 99 or judicial notice if it has been established as required by section 14(2) and section 73 Evidence Act or Law as the case may be in decisions of the superior courts of law. Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and imports justice to the lives of all those subject to it.
The main thrust of the respondent's documentary evidence Exhibits D to N is to establish before the court that not all land in Ogbomoso is stool land and that the Shoun himself, the 2nd appellant and his predecessor are not only aware of it but have actively demonstrated this by joining others in making grants of land in Ogbomoso. The 2nd appellant has been shown to have taken conveyance of title of land in Ogbomoso from persons other than the Shoun both before and after his installation as the Shoun. Most importantly, Exhibit P4 presides in eloquent testimony. It is a Deed of Grant made between Laoye and Aburumaku sections of Shoun of Ogbomoso in respect of about 12.5 acres of land for a stadium in Ogbomoso.
The names of the grantors are:-
(1) Kabiyesi Oba Jimoh Oladunni Oyewunmi Ajagungbade III the Shoun of Ogbomoso
(2) Alhaji Oladipupo Akorede Laoye (Mogaji of Laoye section of Shoun of Ogbomoso) family
(3) Gabriel Olayanju (Mogaji of Aburumaku section of Shoun of Ogbomoso family)
(as head of Shoun of Ogbomoso family and Mogajis of the Ruling Houses and for themselves and on behalf of members of Laoye and Aburumaku sections of Shoun of Ogbomoso family (hereinafter called the Grantors)
It is observed that the present Shoun and 2nd appellant herein is the 1st named representative of the Grantors. The 2nd and 3rd recitals in the Deed are noteworthy. The 2nd recital reads:
Whereas the Ogbomoso Investment Club (Nigeria) Limited has donated on behalf of the Ogbomoso community 12.27 acres of the said 12.5 acres of land required for the said stadium.
and the 3rd recital went on to state that
whereas the Laoye and Aburumaku sections of Shoun of Ogbomoso family is seised and possessed of a piece or parcel of land situate, lying and being at General Hospital Area, Ogbomoso, Oshun North West Division, Oyo State of Nigeria, by settlement and occupation under Native Law and Custom from time immemorial.
The body of the deed then proceeded as follows:
Now this Deed of Grant Witnesseth that in pursuance of the said agreement and consideration of the natural love and affection the grantors have for the Ogbomoso community the Grantors as Beneficial owners and as heads of the family hereby Grant, Transfer, Convey and Assure unto the Grantee all that piece or parcel of land, situate, lying and being at the General Hospital Area, Ogbomoso, Oshun North-West Division of Oyo State of Nigeria measuring an area of 12.27 acres to hold the same unto the use of the grantee in fee simple absolute free from all incumberances and freed and discharged from all incidents of customary land Tenure.
The words speak for themselves. That Deed was executed on the 7th day of October, 1976.
In Exhibit H which is a Deed of Conveyance of Land contained in survey Plan No. 0B231 of 29/8/1970, the named vendors are:
(1) Alayeluwa Oba Jimoh Oladunni Oyewunmi, Ajagungbade III, Shoun of Ogbomoso;
(2) Dawudu Olaleye Oyewumi (Magaji) of Akata, Ogbomoso
(3) Jimoh Ladosu
(4) Lawuyi Adamu
(5) Salami Jokodoye
(6) Shittu Oyelami
(7) Raji Oyewumi; and
(8) Aminu Oyewumi (Principal and accredited representatives of the Gbagun Ruling House of Ogbomoso family (hereinafter called the Vendor).
The Purchaser is
J. Oyewumi & Company Ltd. a limited liability company founded by the 2nd appellant.
The 1st recital to the Deed is totally contrary to the contention of the appellants in the instant appeal. It reads:
Whereas the Gbagun Ruling House of Shoun of Ogbomoso family is seized and possessed of vast area of land situate, lying and being at along Ilorin Road near the Public Cemetry, Ogbomoso, Oshun North-West Division, Oyo State of Nigeria by settlement and occupation under native law and custom from time immemorial.
This Deed was executed on the 17th day of September, 1976. Exhibit Dl an indenture of Disclaimer executed by His Highness Olatunji Elepo II the Bale of Ogbomoso is of particular significance. The significance lies in the fact that the predecessor in office acknowledged in writing that he had no right to alienate or dispose of land belonging to a Ruling House in Ogbomoso of which he was not the head. This is vividly brought out by the recitals which read:
Whereas by a deed executed on the first day of April, 1963 between the said Grantor/Disclaimant and Mr. Jacob Ayoola Oyewumi (hereinafter referred to as the Grantee) before Senior Magistrate T. S. Gomes at the Magistrates Court, Ogbomoso, the said Grantor purported to have granted a piece and parcel of land being the property of Oyewumi Ruling Family land situate and being at Ojaigbo, (next to the present Town Hall) Ogbomoso, to the said Grantee, and
Whereas in the said grant the said grantor/disclaimant represented himself as Head of Oyewumi Ruling Family of Ogbomoso and as such that he according to native law and custom in effect had the right to dispose of Oyewumi family land and Whereas the said grantor/disclaimant has now discovered and acknowledged that the said land is the sole property of Oyewumi Ruling House of which he is not the head and as such has no right so to have disposed of the family land and
Whereas this purported grant has since been registered at page 25 No.25 Volume 696 of the Lands Registry, Ibadan and
Now this Deed Witnesseth that He the said grantor(disclaimant His Highness Olatunji Elepo II, the Bale of Ogbomoso hereby by this DISCLAIMER doth disclaim any purported right over the said Oyewumi Ruling House Family land and hereby further denounces and withdraws from any purported grant of this said land as above to the said Jacob Ayoola Oyewumi.
The said grantor/disclaimant further acknowledges that the only persons having right to dispose of the said Oyewumi Ruling House family land are the accredited members or representatives of which he the said grantor/disclaimant is not one.
This Indenture of Disclaimer was executed on the 1st day of November, 1965.
With all these documentary exhibits and oral evidence before the court, the High Court and the Court of Appeal were justified in rejecting the contention of the appellants that the Shoun is in control of all lands in Ogbomoso and that only he can transfer title to land in Ogbomoso.
The issue of judicial notice of previous decisions on the customary law on land tenure in Ogbomoso engaged the attention of counsel and the two courts below more than all the other issues for determination in the appeal. The reason is not far to find. Ajao v. Ikolaba (supra) was a decision of the Supreme Court where the statement of the customary law on land tenure in Ogbomoso which the appellants relied on was made. The High Court decisions on the customary law of Ogbomoso are in
1. Okanlawon & Ors. v. Olayanju & Ors. Oshogho High Court Suit No.HOS/89/76 delivered on 24/8/78.
2. Bankole v. Bala & Ors. Oshogbo High Court Suit No.HOSIIO4I 76 delivered on 10/6180;
There is also the Court of Appeal decision in
3. Bala & Ors. v. Bankole FCA/1/139/86 delivered on 6/5/86.
Whereas the issue of applicable customary law in the instant appeal was in contest in case Nos. (1), (2) and (3) above, it was not in contest in Ajao v. Ikolaba (supra). The respondent has conceded that the customary law as advocated by the appellant applies to stool land with slight modification. The only real issue therefore is whether persons or families other than the Shoun of Ogbomoso have title to land in Ogbomoso under Ogbomoso Customary Law which they can transfer to grantees or purchasers.
The appellants overlooked the only question for determination in Ajao v. Ikolaba which is whether Chief Ikolaba who acted as agent for the Shoun in the allocation of land to the ancestors of the plaintiff can turn round and claim title to the land he has allocated in his capacity as agent when title to the land allocated was vested with the Shoun as trustee for the community. That was the sole question. There never was any issue between the Shoun and another person on the issue of applicable customary law or the ownership of the land. That issue arose in the instant appeal and led the High Court to the adoption of the procedure in section 14(3) of the Evidence Act which reads:
Where a custom cannot be judicially established as one judicially noticed, it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or class of persons concerned in a particular area regard the alleged custom as binding on them.
Counsel have addressed the court on the interpretation of section 14(2) of the Evidence Act. It was contended that in Cole of Akinyele (1960)5 FSC.84 at 86;  SCNLR 192 per Brett, F.J. (where Brett, F.J., took judicial notice of the custom of acknowledging parternity by a man in his life time to give legitimacy to his issue established only in a single case of Alake v. Pratt (1955)15 W.A.C.A. 20 was the only decision in support of the appellants' contention that the custom declared in the solitary case of Ajao v. Ikolaba (supra) qualified for judicial notice to support the appellants' case. The cases of Angu v. Attah Gold Coast Reports PC.1874-1926; Larinde v. Afiko 6 WACA. 108; Odufuye v. Fatoke (1977) 4 SC. 11 at 17 per Sir Udo Udoma, J.S.C., and Giwa v. Erinmilokun (1961)1 All NLR. 294 at 296 per Taylor, F.J. all require frequent proof of a custom to entitle the custom to judicial notice by the law courts.
Having regard to what I have said above as to the real issue in Ajao V. Jkolaba (supra), the issue of not according Ajao v. Ikolaba judicial notice assumes less importance fades into the background and disappears.
The final issue raised is as to the High Court considering evidence of recent acts of possession and ownership when traditional evidence proves inconclusive. Traditional grants, it must be admitted, can only be proved by traditional evidence. They cannot be proved by evidence of writing. The evidence must consist of oral history handed down by word of mouth from generation to generation and so a distinction must be drawn from modern grants which have to be evidenced by writing. Proof of such grants cannot be elevated from traditional evidence to primary and secondary evidence necessary for modern grants.
Therefore, recent acts of possession and ownership is indispensable in such cases. See Kojo v. Bonsie (1957)1 W.L.R. 1223.
The lower court was perfectly justified in falling back on recent acts of ownership to determine the person with a better title. There have been concurrent findings of fact by the two courts below and as such, an examination of and an excursion into the facts of this case to ascertain the justice of the case is unnecessary.
Judgment delivered by
I have read in advance the judgment just delivered by my learned brother, Obaseki, J.S.C. For the reasons stated therein, I also dismiss the appeal and confirm the decision of the Court of Appeal. I endorse the order as to costs.
Judgment delivered by
I had before now had a preview of the judgment just delivered by my learned brother. Obaseki, J.S.C., and I entirely agree with his reasoning and conclusions.
There is no doubt that the main issue in the appeal is as indicated by the respondent in his brief of argument i.e. is the customary law on land in Ogbomoso that all land belongs to the Shoun to hold in trust for the Community, or is it that apart from the Stool lands held by the Shoun, the Ruling Houses own their own land which they can convey to persons as they wish.
The lead judgment has exhaustively dealt with all the issues raised in both briefs of argument. As regards the case of Ajao v. Ikolaba (1972) 1 A.N.L.R. (Part 2) 46, a decision of this Court, the Court of Appeal could not have ignored it if it had been a proper binding authority. Having myself A examined the case, lam of the view that it was correctly distinguished by that Court. The question of the customary law of Ogbomosho was not the question for determination in that case. Both sides in the case appear to have accepted that all land belong to the Shoun. The question was rather whether Chief Ikolabo as agent of the Shoun can turn round to claim land which his ancestors had granted to the ancestors of the defendant in that case. This Court said he could not: It would seem to me that with Ajao's case out of the way, the custom as projected by the plaintiff/respondent had to be accepted in so far as one was relying on judicial notice of such custom through several decisions of the Superior Courts (See Sections 14 and 73 of the Evidence Act).
In respect of proof of the custom by oral evidence the documentary evidence Exhibits D-D3, D5-D7, E-E1 F, G, H, J, K, M and N were conclusive. Not only do they show land conveyed by several Ruling Houses to several persons; land conveyed by a Ruling House to the 2nd defendant/appellant before he became the Shoun, but more importantly, they show one instance in which a Shoun joined heads of Ruling Houses to convey land for stadium and an instance in which a reigning Shoun disclaimed title to convey land belonging to a Ruling House.
In this last case i.e. Exhibit DI, His Highness Olatunji Elepo II the Bale of Oghomosho disclaimed title to convey land belonging to the Oyewunmi Ruling House. One of the recitals in the deed of disclaimer reads,
Whereas the said grantor/disclaimant has now discovered and acknowledged that the said land is the sole property of Oyewunmi Ruling House of which he is not the Head and as such has no right so to have disposed of the family land.
These documents conclusively show, in my view too, that the custom being projected by the 2nd defendant/appellant could not have been generally accepted in Ogbomosho for he did not know of it before he became the Shoun and Exhibit Dl has shown that a predecessor Shoun did not acknowledge it either.
It was for these reasons, and the more detailed reasons in the lead judgment that I also dismissed this appeal. I endorse all the orders in the lead judgment.
Judgment delivered by
I have had the opportunity of reading in draft the judgment read by my learned brother, Obaseki, J.S.C. I entirely agree with the judgment.
Judgment delivered by
The decision in this appeal is hinged on the determination of the rival contentions between the parties, relating to the customary law as to the ownership of land in Ogbomosho in Oyo State of Nigeria; which on its part is tied to the accepted proof of this law in our Courts. It was the contention of the appellants that in Ogbomoso Customary law the ownership of all land in Oghomosho. except those already granted or transferred by the Shoun are vested in the Shoun to the exclusion of all other persons. The Shoun is the title of the traditional ruler of all Ogbomoso, the original founder and settler of the area. The second appellant is the Shoun. The first appellant is his niece. The 2nd appellant claims to have granted the land , subject-matter of the dispute to the 1st appellant.
The respondent in this appeal has rejected the above claims of the appellants. It is his contention that each of the five ruling houses in Ogbomoso own and control large tracts of land, which are not subject to the ownership or control of the Shoun. The respondent contended that each of the five ruling houses derive their title from the Shoun who is their ancestor; are entitled by rotation to occupy the position of the traditional ruler of Ogbomoso as Shoun when it is their turn to do so. The land in dispute, it was claimed, was the portion granted to their ancestor several hundreds of years ago, and which they have continued to occupy without interference.
The issue has arisen because of the approach of the Courts to the ascertainment of customary law in civil proceedings. We are here concerned with the ascertainment of the customary law relating to the holding of land in Ogbomoso. There is the decision of this Court in Ajao v. Ikolaba (1972) 1 All NLR (Pt.2) 46, claimed by the appellants as having decided that all land in Ogbomoso is vested in the Shoun and to the exclusion of all others, which they contend support their claim.
There are also subsequent cases of Prince Okanlawon & Ors. v. Olatunji & Ors. HOS/89/76 unreported decision of the High Court of Oyo State, decided by Sijuade, J., on 24.8.78; (ii) Bankole v. Bala & Ors. HOS/104/76 Oshogbo High Court 10.6.80 decided by Ibidapo-Obe, J., and (ii) The Court of Appeal, Bala & Ors. v. Bankole FCA/1/139/86 delivered on 6.5.86, each and all of which have decided that it is not the customary law of Ogbomoso, that all Ogbomoso land is vested in the Shoun, and that customary law is that each of the five Ruling Houses of Ogbomoso own the distinct and separate tracts of land allotted them.
Learned Senior Counsel, Chief Olisa Chukura, S.A.N., has submitted that the Courts are bound by the decision of this Court in Ajao v. Ikolaba which according to his interpretation supports the contention of the appellants that at customary law, the title to all Ogbomoso land are vested in the Shoun. There is no doubt that by the common law tradition the doctrine of judicial precedent dictates that all subordinates Courts are bound to follow the decision of a superior Court where the ratio decideudi of the latter govern the determination of the matter before them. Thus the submission of Chief Chukwura will have considerable force and consequently mandatory effect if it can be shown that the ratio decidendi of Ajao v. Ikolaba (sup ra) governs the subject matter of the claim before the Courts in Okanlawon v. Olayanju (supra) and Bala v. Bankole (supra)
In addition, Chief Chukura will be required also to show that Ajao v. Ikolaba (supra) has established the Customary law relating to land in Ogbomoso.
As I intend to deal with the narrow issue of the judicial ascertainment of Ogbomoso Customary law relating to land and the application of the doctrine of judicial precedent, more particularly stare decisis, I will confine my consideration of the issues to the facts giving rise to them.
Since I agree with the judgment of my learned brother, Obaseki J S. C. in all the issues litigated and his recapitulation of the facts, I am content to say that I could not have improved on his analysis of the issues and consequent decision. I agree entirely.
Now to the facts.
The 2nd defendant who is the Shoun of Ogbomoso in his own pleading and oral evidence at the trial claimed that under the native law and custom of Ogbomoso he has the power as the Shoun to grant the land in dispute to the 1st defendant as he has done. He claimed that the Shoun of Ogbomoso is the custodian of all lands in Ogbomoso for himself and the Ogbomoso community. According to him all land in Ogbomoso is stool land. the Chiefs and Mogajis in Ogbomoso have no authority in respect of lands. They can only act and do act as agents of the Shoun as the Shoun directs. - See paragraphs 6, 7, 8, 9,10, 11 of the 2nd defendants statement of defence. It is pertinent to mention that judgment was given against the appellants who were the defendants in the High Court. The judgment of the High Court was affirmed on appeal to the Court of Appeal.
The crux of, the, matter has always been and still is the question whether the ownership and control of the lands in Ogbomoso was vested absolutely in the Shoun alone as claimed and contended by the appellants or whether the five Ruling Chieftaincy houses on their own separate and distinct tracts of land which they control absolutely without interference from any other Chieftaincy family or the Shoun, as contended by the respondents.
Learned senior Counsel on either side have formulated the questions for determination differently, although in substance they resolve the same issues. Chief Olisa Chukwura. S,A.N., consistent with his submission relying on Ajao v. Ikolaba (supra) has formulated his questions 2.1,2.2 based on his grounds of appeal 1 and 3 on the bindingness of that decision. On the other hand, Chief Williams, S.A.N., rejecting that contention has based his formulation of the question on the ascertainment of the Customary law relating to land in Ogbomoso.
Learned Counsel for the appellant's formulated question for determination thus:-
2.1 Was the Court of Appeal (as also the High Court) not bound by the Supreme Court decision in Ajao v. Ikolaba (1972) 1 All NLR. (Part 2) 46 on Ogbomoso customary law relating to land tenure and does refusal of the Courts to follow and give effect to the principles laid down therein (and in the Evidence Act) in a matter of all fours, not vitiate the decision of the Court of Appeal?
2.2 Where the incidents of a customary land tenure have been established by evidence in a suit supported by a decision of the Supreme Court, is the Court of Appeal entitled to shy away from giving effect to that custom, without evidence that the custom has been changed by the Community - in other words, can the Court indirectly change the Custom?
On his part learned Counsel to the respondent's formulation of the issue is as follows -
(i) whether by the customary law prevailing in Ogbomoso, all land in that area of Oyo State belongs to the Shoun of Ogbomoso so that any one claiming to sell land can only validly do so by tracing his title directly or indirectly to the Shoun?"
It seems to me obvious that the issues resolve themselves to the fact that the appellants are working on the assumption that the Shoun is at customary law owner of all land in Ogbomoso, and that has by the decision in Ajao v. Iko1aba, been accepted by the Courts as the law, and is now subject matter for judicial notice requiring no further proof. The respondents reject that contention and therefore rely on other judgments of the Court to the contrary, in Prince Okanlawon v.Olayanju (supra) and Bankole v. Ba/a & Ors.(supra).
Hence the real issue is whether Ajao v. Iko1aba supports the contention of the appellants? If it does, is that single decision sufficient for the purpose of establishing judicial notice of the customary law claimed? It seems to me beyond any argument that if Ajao v. Iko1aba (supra) does not support the proposition of law contended for, then quaesito cadit. The consideration of the question whether it constitutes judicial notice does not therefore arise,
Judicial Notice of customary law at Common Law
The locus classicus case for the ascertainment of customary law and subsequently of judicial notice is the Judicial Committee of the Privy Council decision of Kobina Angu v. Attah P.C. '74-'28,43. There, the formula for the ascertainment of native law and custom was stated to be as follows -
As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs, by frequent proof in the Courts, have become so notorious that the Courts will take judicial notice of them
According to Angu v. Attah, the two tests are in the alternative. They are -
(a) Calling witnesses acquainted with the custom in the Courts,
(b) when by frequent proof in the Courts the particular custom becomes notorious.
In respect of (a) proof of the customary law will depend on the witnesses called. But in (b) by frequent proof in other cases the Court will take judicial notice of the custom as having been established where it arises for proof. in the case before, it, and no more proof will be required.
This rule which originated from the English Common law governing the proof of local customs now enjoys a statutory backing. For quite sometime after the formulation, our Courts construed them in Amissah v. Krabah 2 WACA.30, and in Buraimo v. Gbamgboye (1940) 15 NLR 139. In Larinde V. Afiko (1940)6 WACA 108, where the trial Judge relied on one decision of Odu of Ikeja V Akitoye of Ikeja, tried in 1892. in which the Awori custom forbidding a stranger to the community who had received a grant of land from collecting palm fruits (this right being reserved to natives), to take judicial notice of that custom. the West African Court of Appeal reversed the decision on the ground that "The decision of one case in 1892 cannot be said to be frequent proof in the courts enabling the courts to take judicial notice of the particular Awori custom. It therefore had to be proved and it was not."
The decision of Yusufu Kugbuyi v. Odunjo (1926) 7 NLR 51, could have been the earliest case on the application of the rule but for the view of the West African Court of Appeal in Larinde V. Afiko (supra) that it was wrongly decided. The decision was accepted as res judicata as between the parties, but not for establishing the custom forbidding strangers collecting palm fruits on land granted to them and preserving that privilege for indigenes.
Provisions of the Evidence Act, I 945
Section 14 of the Evidence Ordinance (now Act), which together with the Act came into force on 1st June. 1945 would seem from its words to have enacted the rules as could be deduced from the decided cases at the time. Section 14(1)(2) provides -
(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.
(2) A custom may be judicially noticed if it has been acted upon by a Court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of person or the class of persons concerned in the area upon the same as binding in relation to the circumstances similar to those under consideration.
A construction of the above recited subsections of section 14 is to the effect that customary law may be established either (a) by the Court taking judicial notice of its existence or (b) by leading evidence in the particular case Sub-section 2 of section 14 prescribes the circumstances for the taking of the judicial notice in sub-section (1). This is where the particular alleged customary law has been acted upon by court of superior or co-ordinate jurisdiction in the same area and (ii) to an extent which justifies the court asked to apply it in assuming that the persons or the class of person subject to it regard the customary law as binding.
This is no doubt an amplification of the tests for the ascertainment of customary law laid down in Angu v. Atthi (supra) adopted and approved in Larinde v. Afiko (supra). This test will seem to me to have been followed by our courts.
In the instant case Counsel to the appellants will appear to have followed the second test of ascertainment of customary law by judicial notice by frequent proof in the Courts. Learned Counsel therefore has relied on Ajao V. Ikolaba (supra) as his authority. Learned Counsel's contention is that Ajao v. Iko/aba is binding on all other courts and must be followed. I have already observed in this judgment that the bindingness of Ajao v. Ikolaba (supra) will depend upon what the case actually decided.
The claim by the plaintiff Chief Ikolaba. agent for the Shoun in Ajao V. Ikolaba is for a declaration of ownership and title at Okeke Area, Oke Otta Quarters, Ogbomoso. The case originated from the Grade Cl Customary Court, Ogbomoso. His claim was dismissed in the Customary Court, Ogbomoso. His claim was dismissed in the Customary Court, Magistrate Court and the High Court. In the western State Court of Appeal, their Lordships allowing the appeal declared.
The order of this Court is 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 on behalf of Shoun of Ogbomoso for the use of the people.
The defendant appealed to this Court. The facts are not in dispute that the land in dispute was granted to the ancestor of the defendant by the ancestor of the plaintiff. The portion now under litigation, which is undeveloped is part of the land granted to the ancestor of the defendant by the ancestor of the plaintiff. The plaintiff. a descendant of Chief Ikolaba now claimed this undeveloped portion, sold it to another who attempted to build on it. The defendant resisted the claim on the ground that it was land allotted to his ancestors over 120 years ago. Plaintiff has now brought this action claiming as above
The following statements appear from the judgment.
The facts are not in dispute. Both sides are agreed on the facts. It was stated that all land in Ogbomosho belongs to the Shoun of Ogbomosho, who holds all the land in trust for his people. He has under him a few Senior Chiefs occupying different posts 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 to build on would approach any of these Senior Chief where the land is situated; he would allot portion of the land in his care to him, in the name of Shoun (See p.47).
Again, the following statement of the Custom as stated by the Customary Court Grade CI in dismissing plaintiffs claim has not been contradicted.
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. The 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 ba gbin, omo ki tu.' The customary tenancy cannot allow the plaintiff to recover the land in the suit
Any more 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 plaintiff's family as usual.
In the Magistrate's Court, dismissing plaintiff's appeal the Magistrate agreeing with the Customary Court said,
In the circumstances, I see no reason for disturbing the judgment of the lower Court. The appellant's family are trustees of the land, not owners. The respondent's family are their tenants. (see p.49)
The Judge of the High Court on appeal agreed with the Courts below and dismissed the appeal.
This Court on its own observed that the customary law that land granted which remains unutilised reverts to the grantor did not apply in the case since there was abundant evidence that defendants' ancestor had built on the land allotted to him and merely left the portion now in dispute.
The Western State Court of Appeal set aside the judgments of the Courts below on the ground that since the claim was one for declaration of ownership and title, and it was not disputed that ownership was in the Chief Ikolaba family, there was the end of the dispute.
The defendant then appealed to this Court ,which ,reversed that decision on the ground that the Customary Court had found that the ownership of the land in dispute is in the Shoun of Ogbomosho and he holds all land in trust for the Ogbomoso people. Relying on the evidence of the plaintiff's 4th witness, the Otun of the Shoun of Ogbomosho who is also the President of the Grade B1 Customary Court Ogbomosho. it was stated that it was the custom for any one who wanted land to build, to consult Chief Ikolaba who would take the request to the Shoun. With the approval of the Shoun, Chief Ikolaba would make a grant. It was held in the circumstances Chief lkolaba could not claim to be the owner or trustee of the land so given.
This is important in view of the action before the Court claiming for a declaration of ownership or title in the plaintiff, Chief Ikolaba. The Court pointed out that "the position of Chief Ikolaba and such Senior Chiefs who were authorised to make grants is no more than that of an agent." The Court then discussed the general principle relating to the position of the head-chief of a Community and observed that the Shoun is the head-chief of the Ogbomosho Community. It was held that the concept of native land law and custom is that Land belongs to all members of the Community or village where every one has a right. The head-chief holds the land in trust for the community. He is in a loose sense referred to as the owner as he has control of the whole land, - see Kuma V. Kuma 5 WACA 8; Tongi v. Kalil 14 WACA, 331; Oshodi v. Dakolo (1930) A.C. 667, 668 Oyekan v. Adele 14 W.A.C.A. 209,214.
This Court came to the conclusion, which in my opinion is the real issue before the Court, that "The concept of ownership by the Senior Chief who acts as the representative of the head-chief is unknown to our customary law. In the instant case 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."
This was the only question in this appeal and on which this Court disposed of the appeal. Thus, the question whether Ogbomosho land is vested in the Shoun of Ogbomosho has not the question in issue in this appeal; although the Court expressed its opinion on the issue. The question in issue and which was decided was whether the concept of ownership by the Senior Chief who acts as representative of head-chief was known in Ogbomosho customary law. Pointedly whether Chief Ikolaba and his family had any right in the land in dispute. This was decided against the plaintiff/respondent.
It cannot be denied of course that there was evidence of the customary law as to the ownership of all land in Ogbomosho by the Shoun. But this case is not an authority for the establishment of such a proposition as it was not the ratio decidendi of the case.
The ratio decidendi is that the concept that the Senior Chief who acts as representative of the head-chief is owner of the land is unknown in Ogbomoshocustomary law accordingly Cchief Ikolaba and his family has no scintilla of right to the land in dispute.
It was the contention of Chief Olisa Chukwura, S.A.N., that 1st appellant has pleaded that all Ogbomosho land was stool land and vested in the Shoun who holds them in trust for the Ogbomosho Community. The exclusive right of the Shoun to make grants was also pleaded.
The question whether Ajao v. Iko/aba (supra) should bind the courts in Okanlawon & ors. v. Olayanju (supra) and Bankole v. Bala & Ors. (supra) Ogunesan v. Oyewunmi can only be determined by the issue which fell to be decided in these cases.
Although the determination of the position of the Shoun of Ogbomosho with respect to Oghomosho land arose as an issue in Ajao v. Ikolaba, (supra); it was not an issue which fell for decision of the claim. It is however, the real issue in each of the subsequent cases.
In Okanlawon & Ors. v. Olayanju & Ors. (supra) the action was for a declaration that a piece or parcel of land in Ogbomosho was the property of the Aburumaku family; one of the five Ruling Families in Oghomosho. The defendants were seven individuals of the Aburumaku family, including their Mogaji. The Shoun of Ogbomosho was not a party to the case but gave evidence for the defendants as the 4th defence witness. It was the contention of the defence that the reigning Shoun has in Ogbomosho customary law, control over all land in Ogbomosho including the land in dispute; and there can be no valid transaction in respect of land in Ogbomosho without consultation with the Shoun. In his evidence, the Shoun stated that no Ruling House in Ogbomosho had any land of their own except farmland granted for farming purposes, and that all land is in the absolute control of the reigning Shoun.
In rejecting this evidence of Ogbomosho customary law claimed, Sijuwade, J., said,
I have no doubt that the 4th D.W. has given a distorted version of the traditional history and embellished the custom of land tenure in Ogbomosho presumably to suit his own purpose particularly now that he is the reigning Shoun
The learned trial Judge observed that most of the documentary evidence produced by the plaintiffs were those in which the 4th D.W., as a Prince was a purchaser or grantee of the Ogbomosho lands described therein. After making other observations on the credibility of the witness, the learned Judge concluded;
The issue involved is not what should be the custom as it obtains in other Yoruba land on land tenure or what the Shoun feels should be the land tenure in Ogbomosho but rather what the people in Oghomosho have accepted and practised as their custom for sometime. In the circumstance very little reliance can be placed on the evidence of this traditional ruler of Ogbomosho.
The Court decided that the Aburumaka Family, one of the five Ruling Houses in Oghomosho, had its own land over which it can exercise ownership rights, without the control of the Shoun.
Sijuwade, J., concluded that
in truth and infact, the five Ruling Houses in Ogbomosho have their own distinct and separate family one or other ancestors long ago, and over which the members of each of those Ruling Houses, through their accredited representatives deal with the land without the concurrence or consent of the reigning Shoun except when and where it involves the Stool. e.g as in Exhibit B11
On appeal to the Court of Appeal. in Bala & Ors. v. Bankole (supra) the Court dismissed the appeal. Uche Omo. J.C.A. referring to the judgment of Sijuwade, J.. in Okanlawon v. Olayanju (supra) declared.
I have quoted at length from this judgment of Sijuwade because the issues being canvassed by the defendant/appellants counsel in this case were fully canvassed and care fully considered by him. I am persuaded that his findings and conclusion therein represent the true customary law of Ogbomosho.
Bankole v. Bala & Ors. (supra) is another decision of the High Court where the issue of the position of the Shoun of Oghornosho was decided.
In this case, as in the appeal before us, the action was for damages for trespass to a piece of land along Oghomosho/Ilorin Road in Oghomosho. Plaintiff, a member of the Odunaro/Layode Family, traced her title to another purchaser from the family. The defendants denied the plaintiff's title and relied and pleaded a grant from the Shoun. The issue was therefore whether the Odunaro/Layode faniily can hold land in their own right or whether only the Shoun can make a grant of Oghornosho land. The Shoun gave evidence for the defendants contending that only the Shoun can make valid grants of land in Ogbomosho. In rejecting the contention of the defendants and the evidence of the Shoun. the learned Judge. Ibidapo-Obe, commented as follows-
In effect, the evidence of His Highness that the Shoun of Ogbomosho owns all the land in Ogbomosho and but the particular one in dispute was his property, held in trust for him by Oba Sabo, cannot be supported by history (see the judgment of Sijuwade, J. (unreported) in Suit No.HES189176. Prince Okanlawon & Ors. V. Olayanju & 6 Ors.). I am therefore of the view that the five ruling houses in Ogbomosho have their own distinct and separate family land over which members of their respective families, through their accredited representatives, can deal with the land without concurrence or consent of the reigning Shoun.
The learned Judge granted the claim of the plaintiff which was affirmed on appeal to the Court of Appeal.
The position as at the time this case came before this Court and of now is that Ajao v. 1ko/aba, a decision of this Court decided that in Ogbomosho customary law a representative of the head chief in ogbomosho cannot be owner of the land over which he acts as agent on behalf of the Shoun. Specifically Chief Ikolaba and his family has no scintilla of right to the land in dispute in the case.
The question of the claim of the Shoun as owner of all Ogbomosho land not being an issue before the court was not decided.
In Okanlawon v. Olayanju (supra): and Bala v. Bankole the issue which fell to be decided were direct issue in the appeal before us: name/y whether each of the five Ruling Houses of Ogbomosho own its distinct and separate tract of land subject to control by no other house or the Shoun or that all land in Ogbomosho is owned and subject to control by the Shoun. In both cases, it was decided that each of the ruling houses has its own tract of land which they control exclusively and deal with without seeking the consent or concurrence of the Shoun.
The question now is whether the Courts are bound by Ajao V. Ikolaba (supra). Of course, where the ratio decidendi is applicable. the judgment in Ajao v. Ikolaba is binding.
The facts of the case before us are in all material respects identical with those of Ba/a v. Bankole. The issues litigated are the same. It is a conflict between the Odunaro/Layode Ruling House and the exercise of their exclusive right to deal with their distinct and separate tract of land, and the claim of the Shoun to the ownership of all land in Ogbomosho.
On the facts of the case, and the issue which fell to be decided, Ajao V. Ikolaba having been decided on a different issue cannot constitute authority in respect of this case, and is not binding. The question whether Judicial notice could be taken of the issue decided in that case is what we shall now consider.
I have already stated the tests enunciated in Angu v. Attah and in Section 14(2) of the Evidence Act, 1945 in respect of the Judicial notice of customary law.
The requirement of frequent proof is an important factor in the judicial notice of customary law. Apart from the case of Ajao V. Ikolaba, no other decision was cited to us by learned Cousel in support of the contention that the customary law claimed by the appellant was proved. The case of Cole V. Akinyele (1950)5 F.S.C. 84; [l960] SCNLR 192 decided by the Federal Supreme Court, cited by counsel will seem to have relied on the earlier decision of Alake v. Pratt (~955) 15 W.A.C.A.20 where the issue of acknowledgement of paternity resulting in the legitimation of a child born outside a valid marriage was decided.
In the recent case of this Court in Cole v. Folami (1990) 2 NWLR (Pt.~33) 445, this Court decided that the fact that only a single decision of Court exists in support of a principle of law does not deprive it of the weight of authority where the law is clear and accepted. This was a case where the only decision in support of a female being automatically recognised as the head of a family was Lewis v. Bankole 1 NLR. 80. The learned trial Judge relied on the decision and found in favour of the plaintiff She was the eldest. and all the surviving children were females. But this is a case like Alake v. Pratt (supra) where the ratio decidendi of the case is the customary law con-tended; unlike Ajao v. Ikolaba. It may be in support of a single decision that where it is a decision of this Court and the customary law relied upon is its ratio decidendi, the doctrine of judicial precedent will re-enforce the question of judicial notice. Otherwise, considerable caution is required where it is only a decision of the High Court which had not been acted upon for a long period.
In contrast Okanlawon v. Olayanju (supra) and Bala v. Bankole (supra) have satisfied the tests of frequent proof prescribed in section 14(2) of the Evidence Act.
The rationale for the requirement of frequent proof is because customary law is still in our jurisprudence regarded as a matter of evidence to be established on the facts presented before the Court in each particular case. Thus, by frequent proof in litigation of the customary law, those affected will look upon the law as binding in relation to circumstances similar to those litigated. Such frequent proof will enable courts to take judicial notice of the customary law without the necessity for further evidence in proof - See
Giwa: Abiodun v. Erinmilokun (1961) All NLR. at p.297-8. (1961) 1 SCNLR377. Nosiru Jegede & Ors. v Eyinogun & 2 Ors. 4 F.S.C.270,  SCNLR.670.
There is no doubt in my mind that from all the decided cases cited and relied upon in this case that there has been proof that customary law of Ogbomosho does not vest in the Shoun the rights in the respect of land in Ogbomosho which he claims. The onus of proof of the customary law claimed rest on the appellant. This appellant has failed to discharge - See Giwa v. Erinmilokun (supra). R. V. Ozogula 11. Exp. Lewis Fkpenga (1962)1 All NLR. 265.
Rather there has been frequent proof establishing the customary law that each of the five Ruling Houses in Ogbomosho owns its distinct and separate tract of land which it controls exclusively and without interference by the Shoun or any other Ruling House.
The Court of Appeal therefore was right in rejecting the claims of the appellants. The claims of the plaintiffs are clearly not governed by the ratio decidendi of Ajao v. Ikolaba. From the above considerations. the Court cannot take judicial notice of the customary law claimed by the defendants/appellants which has been rejected in all the Courts in the cases where it was made an issue. On the other hand it will be consistent with the cases to take judicial notice that in Ogbomosho customary law the Shoun of Ogbomosho has no right and cannot exercise any control over the distinct and separate tracts of land owned by the five Ruling Houses. Each Ruling House exercises absolute control in respect of its own land without interference from any other Ruling House or the Shoun.
In my opinion this appeal can be and is decided on the issue of the rival claims between the Odunaro/Layode family to the ownership and control of their separate and distinct tracts of land and the Shoun as owner of all Ogbomosho land except farm land. The land in dispute is not a farm land and therefore falls within the claims of the Shoun.
to the 1st
Judgment delivered by
I have had the privilege of reading in draft the lead judgment of my learned brother, Obaseki. J.S.C., which has just been delivered. I entirely agree with his reasoning and his conclusion that there is no merit in this appeal and it ought to be dismissed.
The respondent - as plaintiff. brought an action against the 1st defendant, and in his amended writ of summons, claimed as follows:
The plaintiff's claims are as follows below:
The sum of
Pleadings were ordered and filed. After the 1st defendant had filed her statement of defence and a counterclaim. Oba Oladunni Oyewumi Ajagungbade III applied to be joined as a co-defendant and the application was granted by the trial Judge. Ademakinwa, J., on the 2nd day of November, 1981. Subsequently, the 1st defendant filed an amended statement of defence and a counter claim and the 2nd defendant filed a statement of defence.
The substance of the plaintiff's claim is that the land in dispute forms part of a large tract of land which originally belonged to the Layode Family, that it was sold to him by the family in 1959, that he was put in possession immediately after the transaction; that in 1974, the Ogbomoso Local Government trespassed on the land by attempting to construct an incinerator on it, and that on being challenged, the Local Government removed the part already constructed; that by Deed of Conveyance dated 2nd day of October, 1975, the land in dispute was conveyed to him by the Layode Family; that after he had deposited some sand and stones on the land in 1979 with intention of erecting a building on it, the 2nd defendant informed him that his vendors had no title to the land and that he should repurchase same from him; that on or about 7th day of June, 1980, the 1st defendant's agents or servants committed trespass on the land by demolishing his wooden fence and removing the survey pillars which he had erected on it.
The 1st defendant's case is that the land in dispute forms part of Ogbomoso land, that all land in Oghomoso belongs to whoever is the reigning Soun in accordance with native law and custom; that the Layode Family, the plaintiff's vendor had no interest or title in land in Ogbomoso and that accordingly the purported sale of the land to the plaintiff by the Layode Family was invalid in law; and that it was the Soun of Ogbomoso, the 2nd defendant, in exercise of his customary rights over all Ogbomoso land that granted the land in dispute to her in November, 1974
The defence of the second defendant is pleaded in paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of his statement of defence as follows:
6 With reference to paragraph 7 of the Amended Statement of Claim, the second defendant admits that he granted the land on which the first defendant is erecting a building at Sabo to the first defendant, but makes no other admission of the said paragraph.
7. With reference to paragraph 19 of the Amended Statement of Claim, the second defendant admits ONLY that all land in Ogbomoso is STOOL LAND and is vested in Shoun of Ogbomoso who holds the same in trust for the community. The second defendant denies that the Mogajis, who are merely agents of the Shoun in procedures relating to the grant of land to members of the Oghomoso community, have any rights to land in Ogbomoso.
8. Specifically, the Layode Family (alias Odunaro family) has no right, interest or title in land in Ogbomoso as stated in paragraphs 29 and 30 of the Amended Statement of Claim or at all; and accordingly, the alleged transactions referred to in paragraphs 29 and 30 of the Statement of Claim are contrary to Ogbomoso Customary Law.
9 For ease of administration, the Shoun from time immemorial appointed certain family heads, called Mogajis, as agents to process and bring before the Shoun for the purpose of making grants any requests for land within the area of jurisdiction of respective Mogajis.
10 The reigning Shoun is in sole control of all Oghomoso land and has the sole right (to the exclusion of all others) of making grants of portions of land in Ogbomoso to individual members of the community.
11. In exercise of his customary rights over Oghomoso land as the reigning Shoun of Ogbomoso, the second defendant, the uncle of the first defendant, made a grant of land on which she is being challenged by the plaintiff (hereinafter called 'the Land" (free of charge) to the first defendant under customary law in November, 1974 and thereafter by a paper writing under his hand dated 19th November, 1974 made a memorial of the same.
12 Upon the said grant, the first defendant went into possession performing and exercising maximum acts of ownership and possession over the land which is in the urban area of Ogbomoso and has remained in possession to this day.
13. Sabo area is situate in the urban portion of Ogbomoso and was granted to the Hausa Community for occupation many years ago by the late Oba Oyewumi, father of the present Shoun of Ogbomoso and the Hausa Community render tribute for their holding.
14. All vacant land in Ogbomoso (in Sabo and elsewhere) and all land which under Ogbomoso customary law had reverted to the Shoun could be dealt with as stated in paragraph 10 thereof by the Shoun.
At the trial the plaintiff gave evidence and called five witnesses in support of his claim and also filed 14 documents in an effort to counter the claim of the 2nd defendant that all land in Ogbomoso belongs to him.
Both defendants also testified and called three witnesses in support of their claims.
At the end of the case the learned trial Judge considered all the evidence adduced and came to the conclusion that the 2nd defendant's contention that all land in Ogbomoso belongs to the reigning Soun was not substantiated on the evidence adduced. In particular he found that there was no truth in the defence of the 2nd defendant that the Layode Family, the plain-tiff's vendors or any other family for that matter in Ogbomoso, had no land which they could validly sell. In this regard he referred to Exhibits 'E' and 'E1' which clearly showed that the 2nd defendant, when he was a prince, purchased some land from the same Layode family in 1966 and 1969 respectively, which family he now claimed had no land to sell. His explanation that the transactions entered into by him in Exhibits 'E' and 'E1' took place when he was away in Jos as a businessman and when he was at the time not familiar with the principles of Ogbomoso land tenure did not impress the learned trial Judge. Reference was made to two other transactions which took place in Exhibits 'D4' and H' to which I will refer later in this judgment. In conclusion the learned trial Judge found that the plaintiff had made out his case and judgment was given in his favour and damages awarded against the defendants. The counterclaim of the 1st defendant was accordingly dismissed.
There was an appeal to the Court of Appeal which was dismissed. The appeal before this court is from the decision of the Court of Appeal.
As stated earlier in this judgment, the defence of the 2nd defendant at the trial was that the whole of Ogbomoso land belongs to whoever happens to be the reigning Soun at a given time and that no family in Ogbomoso could validly dispose of any land without the knowledge and consent of the Soun. In order to contradict this assertion, the plaintiff tendered a number of documentary exhibits, including Exhibits 'D4' and 'H' whose contents. in my view completely demolished the 2nd defendant's assertion that all land in Ogbomoso belongs to Soun and that the plaintiff's vendors had no land which they could validly sell to him.
Exhibit 'D4' reads as follows:-
This Deed of Gran is made The 7th Day Of October, 1976 between
(1) Kabiyesi Oba Jimoh Oladunni Oyewunmi Ajagungbade III Soun of Ogbomoso Care Of The Palace. Oja'gbo, Ogbomoso, Oyo State
(2) Alhaji Oladipupo Akorede Laoye (Mogaji of Laoye Section of Soun of Ogbomoso Family) Of Aremo Compound. Isale Aremu. Ogbomoso. Oyo State of Nigeria, And
(3) Gabriel Olayanju (Mogaji Of Aburumaku section of Soun of Ogbomoso family) of Mogaji's House, Oja'gbo. Ogbomoso, Oyo State of Nigeria, as head of Soun of Ogbomoso familv and Mogajis of the ruling houses and for themselves and on behalf of members of Laoye and Aburumaku sections of Soun Ogbomoso family- (hereinafter called the Grantors which expression shall where the context so admits include their heirs. successors. executors. administrators personal representatives and assigns) of the one part; and Government of Oyo State C/o Secretariat. Ibadan (hereinafter called the Grantee which expression shall the context admits include its successors and assigns) of the other part
Whereas the Government of Oyo State of Nigeria is desirous of constructing a Stadium at Ogbomoso for public purposes and has requested for land of about 25 acres from the Ogbomoso Community for the purpose.
Whereas the Ogbomoso Investment Club (Nigeria) Limited has donated on behalf of the Oghomoso Community 12.27 acres of the said 25 acres of land required for the said Stadium.
Whereas the Laoye and Aburumaku section of Soun of Ogbomoso family is seised and possessed of piece or parcel of land situate lying and being at General Hospital area. Ogbomoso. Osun North West Division. Oyo State of Nigeria by settlement and occupation under native law and custom from time immemorial.
Whereas the Soun of Ogbomoso Oba Jimoh Oladunni Oyewumi Ajagungbade III as head of the Ogbomosho Community and the respective Laoye and Aburumaku Sections of Soun of Ogbomoso family are willing and ready to provide the remaining land required for the said stadium in consideration of natural love and affection they have for the Ogbomoso Community.
And Whereas the said Soun of Ogbomoso as head of the entire family members of Soun of Ogbomoso family and the other grantors as head of Laoye and Aburumaku Sections of the said Soun of Ogbomoso family have agreed to make an absolute grant of land to the Government of Oyo State for the sole purpose of building a stadium for the Ogbomoso Community which piece or parcel of land is hereinafter described in more details.
Now This Deed of Grant Witnesseth that in pursuance of the said agreement and in consideration of the natural love and affection the Grantors have for the Ogbomoso Community the Grantors as Beneficial Owners and as heads of the family here Grant, Transfer, Convey and Assure Unto The Grantee All That piece or parcel of land situate, lying and being at the General Hospital Area, Ogbomoso, Osun North West Division of Oyo State of Nigeria measuring an area of 12.27 acres which piece or parcel of land is described, contained, delineated and edged Red on Survey Plan No. OB 2371 of 2/9/76 drawn by O. Bamgbose, Esq. Licensed Surveyor which plan is herewith attached and the said piece or parcel of land demarcated on the said survey plan by survey pillars Nos. BP 1129, BP 1130, BP 1131, BP 1132, XV4142, XV4145, XV4144, XV4143, BP1126, BP1 127, and BP 1 L28 to Hold the same unto and to the Use of The Grantee in Fee Simple Absolute Free From All Incumberances and Freed And Discharged of All Incidents of Customary Land Tenure.
The Grantors covenant that they shall from time to time and at all times hereafter well and effectually safe harmless and keep indemnified the Grantee against all losses, claims, damages and or costs whatsoever, arising from, by reason and or in consequence of the grant and conveyance of the aforementioned piece or parcel of land.
In Witness Whereof The Grantors hereto have hereunto set their hands and sealed the day and year first above written.
Signed And Sealed And Delivered by the within - named Grantors
1. Kabiyesi Oba Jimoh Oladunni Oyewumi Ajagungbade III
Oba Oladunni Oyewumi Ajagungbade
(Sgd) O. O. Ajagungbade (L.S.)
Sohun of Ogbomoso
2. Alhaji Oladipupo Akorede Laoye (Sgd) O.A. Laoye (L.S.) (Magaji Laoye).
3. Gabriel Olayanju (Sgd) Gabriel Olayanju (L.S.) (Magaji Aburumaku)
The foregoing having been first read over and explained to the second and third grantors in Yoruba Language by me (Sgd)??????? when they seemed perfectly well to understand the Sworn Interpreter same before signing or affixing their signatures thereto.
Osun North West Grade 'B'.
Now Exh. 'D4' of which the 2nd defendant was a party, shows clearly that the Laoye family, the plaintiffs vendors "is seized and possessed of a piece or parcel of land situate, lying and being at General Hospital area by settlement and occupation under native law and custom from time immemorial" (italics mine). It also shows that that family granted a large parcel of land to the Government of Oyo State for the purpose of constructing a stadium. The grant was made in October 1976 during the reign of the 2nd defendant as Soun. Yet it is the same man who claimed that the Laoye family had no land which it could validly sell to the plaintiff. In my view Exhibit 'D4' completely knocks the bottom off the 2nd defendant's contention that all lands belongs to the reigning Soun because the document shows that the Laoye family has its own family land which the 2nd defendant acknowledged in Exh. 'D4' that the family granted to the Government of Oyo State.
Exhibit 'H' is a conveyance dated 14th September, 1976 between the 2nd defendant and some principal members of the Gbogun Ruling House executed in favour of J.O. Oyewumi and Company Limited, a company owned by the 2nd defendant. If it is true that all land in Ogbomoso belongs to the Soun, why should the Soun involve some other members of Gbogun Family in conveying the land to his company? I think Exhs. 'D4' and 'H' conclusively prove that there is no merit in the contention of the 2nd defendant that all land in Ogbomosho belongs to the Soun.
It is therefore my view that the learned trial Judge was right when on the evidence before him, he gave judgment in favour of the respondent and that the Court of Appeal was also right in upholding his decision. I do not, in my judgment, see any justification in interfering with the concurrent findings of facts of the two lower courts in this case.
Judgment delivered by
I have had the privilege of reading the lead judgment of my learned brother, Obaseki, J.S.C. I entirely agree with the reasoning and the conclusions in the lead judgment which I hereby adopt as mine.
The judgment of the trial court, confirmed on appeal by the Court of Appeal is hereby affirmed.