Ayinde Adeyemo V. Okunola Arokopo (1988)

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O. OBASEKI, J.S.C. 

I dismissed this appeal on the 15th day of March, 1988 after hearing counsel’s submissions and ordered the case to be remitted to the High Court of Oyo State, Ibadan for hearing de novo. I then reserved my reasons for the judgment till today and I now proceed to give them.

The appellant in this matter initiated proceedings in this matter by filing a claim in the Ibadan City No. 1 Grade A Customary Court in May, 1972.

The claim was for:

“1. Declaration of title to a piece or parcel of land situate at Poponla heyond Molete, Ibadan in Western State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed, later in the action.

2. 50.00 being general damages for trespass committed by the defendant, his servants/or agents on the said land on or about July, 1969 and still continuing;
3. Injunction to restrain the defendants, his servants/or agents from entering or committing further trespass on the said land. The value of the land is 50.00.”

After hearing evidence from the witnesses called by the plaintiff and the witnesses called by the defendant, the learned Chief Customary Court President dismissed the claim in the following words:

“From the evidence before me, it is quite clear that the plaintiff is not an exclusive owner. Claim for a decree of declaration of title is therefore dismissed. Claim for damages and injunction therefore fail and is dismissed.”

The plaintiff was not satisfied with the judgment and so he appealed against the decision to the High Court.

Before the hearing of the appeal, the original defendant Oladoja Aropoko, died. The appellant then sought and obtained an order to substitute Okunola Aropoko for the deceased from the High Court. Kayode Eso, C.J. (as he then was) made the order on the 13th day of November, 1976. The High Court [Kayode Eso, C.J. (as he then was)] heard the appeal and gave its judgment on the 27th day of October, 1977. Before the High Court, Chief Adisa, learned counsel for the plaintiff/appellant submitted that all the evidence before the court was not considered and proceeded to point out the pieces of evidence not considered.

Mr. Adekola, learned counsel for the respondent conceded this point for as the learned Chief Judge in his judgment said: (referring to the submission of counsel):

“He concluded by saying that the President made a mistake by not considering the evidence before him and the case was one for rehearing.”

Chief Adisa disagreed with the submission that the case should be reheard and asked for judgment for the plaintiff. The learned Chief Judge considered the issue of the proper order to be made – whether an order of non-suit or an order of retrial. He therefore decided on an order of retrial saying:

“However, there was so many points in the evidence of the plaintiff which were never considered by the trial president and he (sic) has not made use of the opportunity he had in seeing the witnesses and there should be a retrial.

The appeal is therefore allowed. The judgment of Olagbaju dated 28th June, 1974is hereby set aside and retrial is ordered before another customary court Grade A.”