Alhaja Oladoja Sanusi V. Oreitan Ishola Ameyogun (1992)
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NNAEMEKA-AGU, J.S.C
This appeal by the defendant raises in the main the vexed issue of how a Court of trial should approach the important, but sometimes underrated, problem of how to write its judgment as well as the consequences of failure to pursue the problem correctly. The facts from which this problem has arisen are straightforward. In 1985, the plaintiff, in an Ibadan High Court presided over by Sijuade, J., for himself and as a representative of Ope-Agbe family, commenced an action against (he defendant, for himself and as a representative of Ameyogun Family, claiming foul’ different reliefs, The reliefs were as follows:
“(1) A declaration that the plaintiffs are the proper persons entitled to the grant of statutory/customary right of occupancy in respect of a large piece or parcel of land, situate lying and being at Olomi area Ibadan.
(2) That the purported sale or alienation of the land or any part thereof by the Defendants are null and void and of no effect.
(3) That the Defendants, their Agents, Privies and or anybody who bought or claim through them be perpetually restrained from any further act of trespass or alienation of the land.
(4) N5,000.00 (Five Thousand Naira) damages for trespass committed on the said land by the Defendants.”
In his amended statement of claim the plaintiff relied on the traditional history of the land in dispute including how it was acquired over 200 years ago after “Gbanamu War.” He also pleaded numerous acts of possession and ownership, ancient and recent, including granting permission to one Atere, defendant’s predecessor – in – title to farm on the land on condition of payment of traditional tribute, “ishakole.” It was defendant’s refusal to pay “ishakole” and his purported sale of portions of the land in dispute that led to friction and to this suit.
The defendant in his statement of defence denied and joined issues with the plaintiff on all the material averments in the statement of claim. He also pleaded how the land in dispute was acquired and settled upon by Oni Ameyogun, a hunter from Oshogbo, and traced how it descended on him as well as numerous acts of possession and ownership which he and his predecessors- in – title exercised over the land in dispute. According to the defendant Ope-Agbe and Oni Ameyogun were friends who had their respective pieces or parcels of land, adjacent to each other. They enjoyed their respective lands in peace. It was only about three years before the action that one Lamidi lyanda from Onibuke’s family who had a quarrel with Laniyi Ameyogun instigated the plaintiff to make trouble with the defendant and to institute this action.
After trial and listening to the addresses of counsel on both sides the learned trial Judge found the plaintiff’s case proved, granted to him the declaration he sought, awarded to him N1,000.00 damages for trespass against the defendant, declared the sales of the land by the defendant null and void and made an order of injunction against him and all those claiming through him. Dissatisfied with the judgment, the defendant appealed to the Court of Appeal, Ibadan Division, upon eight grounds of appeal, out of which his counsel formulated six issues for determination. However, the Court of Appeal, coram: Kutigi, J.C.A. (as he then was), Omololu Thomas and Sulu-Gambari, J.J.C.A .. considered the appeal only on ground 7 and issue No.5. Because of the thrust of the arguments in this appeal, I shall set out ground 7 and issue No.5 in the Court of Appeal. Ground 7 reads as follows:
“The learned trial Judge erred in law and misdirected himself to have rejected the case of the Defendant before any consideration of the case for the Plaintiff thereby shifting the onus and burden of proof on the Defendant.
PARTICULARS
(1) Having rejected the case of the Defendant first and foremost the Court is duty bound to accept the case of the Plaintiff.
(2) The cases for both the Plaintiff and the Defendant have not been put on the imaginary scale for balancing.”
Issue No.5 which was formulated out of ground 7 runs thus:-
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