Chief Karimu Ajagunjeun v. Sobo Osho of Yeku Village & Ors. (1977)
LawGlobal-Hub Lead Judgment Report
IDIGBE, J.S.C.
In these proceedings which commenced in the Ake Grade ‘A’ Customary Court, holden at Abeokuta, the appellants, as plaintiffs, claimed from the respondents, as defendants,
“(1) Possession of the portion or portions of the farmland occupied by the defendants on the plaintiffs’ farmland at Orile Kesi as per judgment in suit No. 139/58 Ake Grade ‘A’ Court confirmed in suit No. AB 40A/60 High Court Abeokuta on appeal.
(2) Injunction to restrain the defendants from further occupation of the portion or portions of the farmland.
The Ake Grade ‘A’ Customary Court (hereinafter referred to as the ‘Ake Customary Court’) presided over by His Honour, Samuel Ayodele Olukoya, Esquire on the 19th day of August, 1971, in its judgment in favour of the appellants ordered as follows:
“There will be judgment in favour of the plaintiffs for possession and injunction as per the Writ of Summons as against the defendants.”
The appellants unsuccessfully appealed to the Western State Court of Appeal (hereinafter called ‘the Court of Appeal’) from the judgment of the High Court of Western State, holden at Abeokuta (Ganiyu Agbaje, J.), which reversed the decision of the Ake Customary Court, following an appeal by the respondents from the judgment of the said Customary Court. This appeal is from the judgment of the Court of Appeal.
The facts which form the background to these proceedings may be summarized thus; In 1958 the present appellants brought an action, (Suit 139/58 against the present respondents in the Ake Customary Court and claimed:
as representatives of Kesi people ‘………
(1) Declaration that the plaintiffs (i.e the appellants), are the owners of the two pieces of land known as Kesi homestead or Igbonla and Itele Ile respectively via Bagbon on which the defendants (i.e. the respondents) had committed trespass by entering, clearing and planting Cocoa, Kola, Cotton etc. about two years ago.
(2) 250pounds damages for trespass committed by the defendants on the said plaintiffs’ land by entering, clearing, cultivating and planting Cocoa, Kola, Cotton etc about two years ago”.
(Brackets and underlining supplied).
The respondents appealed unsuccessfully from the judgment of the Ake Customary Court (Presided over by His Honour, Chief Ilori) in the above action (Suit 139/58) (and which we set out in detail in the next paragraph) to the High Court of Western State (in Suit AB 40A/60) and later to the Federal Supreme Court (in Suit SC 174/64), which delivered its judgment on the 31st of October, 1966. Shortly after the judgment in the Federal Supreme Court the appellants, alleging that the respondents had extended the several areas of their several farm holding without first obtaining their permission to do so, commenced the present proceedings.
We think, it is necessary, in order to appreciate the reason for the present proceedings to set out in detail some of the relevant passages in the judgment of Chief Ilori in suit 139/58 and these read:-
“From the evidence of the witnesses of the defendants, it is clear beyond any shadow of doubt that these two forests belong to Kesi people. It has however been neglected for many years ago and the Kesi descendants of which the defendants are among seized the opportunity by cultivating it and planting there life trees. When there was a need for agriculture development in the Region, the chiefs and elders wanted to hand this forest over for such a scheme. The defendants who are descendants of Kesi and who have planted life trees in part of the forest did not want to be displaced; this accordingly brought about this action.
According to the plaintiffs, this forest belongs to the Kesi community of which the defendants are members and the plaintiffs admitted that any descendant of Kesi can farm in the forest but had no right to sell any part of it; that power is vested in the chiefs who hold the land in trust for the Kesi community.
Since the defendants are from Kesi and have entered and planted economic plants in this forest for over twenty-five years without any resistance from the chiefs, I see no reason why they should be asked to pay 250pounds for trespass; the claim for trespass therefore fails.
With regard to the first claim for declaration, I have no hesitation whatsoever to declare the forest as that of Kesi people and (sic) that the plaintiffs as the Chiefs and accredited representatives of the Kesi Community holding community land in trust for the people. The defendants are only trying to claim these forests because the plaintiffs as I have stated above neglected these forests until there was need for it. The plaintiffs are granted the declaration sought for by them with the condition, that those who have got farms in the land who are natives of Kesi should not be disturbed, but that no other new farming in the land without the authority of the Kesi Chiefs should be allowed ……….
(Underlining supplied)
The above judgment was apparently tied to a survey plan, and the record of proceedings in Suit 139/58 (Exibits ‘A’ and ‘A1’ in these proceedings) show that such a plan was admitted in evidence in that suit (139/58) as Exhibit ‘X’. In these proceedings, therefore, it is the case of the appellants that the respondents extended their several 1958 holdings (i.e. their several holdings at the time of the judgment in Suit 139/58) and made new farms without the authority of the Kesi Chiefs. In the main, the evidence in support of the appellants’ case is to be found in the testimony of Chief Karimu Ajagunjeun (who, although in fact the 2nd plaintiff on record, was, in the course of hearing-in the Ake Customary Court, recorded as the first plaintiff); and the material portions of the evidence of this witness read:-
“I know all the defendants in this case and they are all from Kesi township. I remember that on this same land ‘ ” Itele and Igbonla” there are three previous cases in which we obtained judgment on each of them in our favour. Here I tender the certified true copy of the proceedings and judgment, ……….Documents, tendered and marked Exhibits ‘A’ and ‘A1′
I went to court against the defendants at that time because they went on a portion of our communal land which they claim “as belonging to their father’ …After the judgment (i.e. judgment in suit 139/58) I went on the land. Getting there I discovered that the defendants had proceeded further on the communal land beyond that on which we got judgment against them. As a Kesi chief I tried to find out if they did so with permission, but all the other chiefs replied in the negative… I sue for possession and injunction in respect of the areas removed to after judgment in the former case between us”.
Under cross examination, Chief Karimu said:
‘… I know the area occupied by the defendants in the 1958 case ‘ The cocoa and kola trees planted on the land by the defendants would not be up to fifteen years old now. The land in dispute then was a complete bush containing no Cocoa and Kola trees. It was during the continuance of the case in court that the defendants continued to cultivate the land. We have now on the land economic trees e. g. cocoa, kolanut and orange trees planted by the defendants’
It is the area covered by cocoa, kola and oranges we want back from the defendants as it is not their own. It is the area on which we now claim injunction “and possession ..” The defendants have exceeded the area previously occupied by them for planting cocoa, kola, orange, cassava; yam etc. thereon. These were planted after the judgment of Chief Ilori; (i.e. Suit 139/58) ‘….”
(Brackets and underlining supplied).
In the main, the defence of the respondents is that they are still farming within the several holdings occupied severally by them as at the time of the judgment in the 1958 action; they deny the allegation that they have extended the 1958 “boundary” or limits of their several farms. Some of the defendants, however, not only claimed personal ownership of the area of land in their occupation but also maintained, even if erroneously, that they neither recognise nor accept the decisions of the courts in Suits 139/58; AB 40A/60 and SC.174/64 (referred to earlier on). According to them, those areas in their several occupation and farming by them were inherited from their several fathers who owned the areas aforesaid in their several rights, the judgments in Suits 139/58, AB 40A/60 and SC.174/64 notwithstanding.
In the course of the hearing in these proceedings in the Ake Customary Court, the appellants put in evidence two plans Exhibits ‘B’ and ‘C’. Exhibit ‘C’ is a plan made by one Mr. Adeoti ‘ a licensed surveyor ‘ who thereon indicated the various areas concerned in the claim in these proceedings, and Exhibit ‘B’ – a plan made by another surveyor (Mr. Aiyede) was handed to Mr. Adeoti merely to assist him in the preparation of Exihibit ‘C’; no attempt whatsoever was made either to identify this plan (Exhibit B) with Suit 139/58 or to relate it with the plan Exhibit ‘X’, (i.e. the plan to which the judgment in suit 139/58 was tied). As already stated the Ake Grade ‘A’ Customary Court found, on the evidence referred to earlier on, (1) that the respondents extended their farms beyond the several areas held by them in 1958 and (2) granted the plaintiffs possession and injunction ‘as per their Writ of Summons against the defendants’ ”
The defendants, the respondents herein, successfully appealed from the judgment of the Ake Customary Court to the High Court of Western State holden at Abeokuta. The basis on which their appeal was allowed in the High Court is to be found in the passages in its judgment which we set out hereunder, and they read:-
“The dispute between the appellants and the respondents in the case now on appeal resolved itself in the final analysis into this:- whether the parcel or parcels of land now in dispute are outside the area of land the possession of which was preserved for the appellants by the judgment in Suit 139/58 or not. I think the first thing one must need do before one can resolve this issue one way or the other is to find out the identity of the land which the judgment in Suit 139/58 says the appellants are entitled to occupy
The learned President, Mr. Ilori, who decided Suit No. 139/58 did not in his judgment particularly specify the land in the occupation of which the present appellants should remain. There is no doubt that the present appellants fall within the category of persons whose holdings are preserved by the judgment and who are also restrained from acquiring new farmland without the authority of the Kesi chiefs ………..”
The learned Judge who heard the appeal in the High Court then made reference to the principle of law under which, in this country, proceedings in Native Courts (i.e., courts which are not amenable to the Common Law of England. English Rules of Evidence and the Statutory Laws of Evidence), are to be given broader interpretation devoid of adherence to strict interpretations to which proceedings in the Magistrates or High Courts are usually subject and, thereafter, took the view that the precise nature and subject matter of the controversy in these proceedings are to be discovered from the entire evidence (i.e. the detailed evidence on both sides) in the Ake Customary Court.
He then went on to say:-
“Relying on (the principle of law referred to above) I discovered from the evidence before the Customary Court in suit 139/58 that a plan of the land in dispute before it was in evidence and marked Exhibit ‘X’. It is the contention of the respondents to this appeal that this plan delineates the portions of land occupied by the appellants as at the date of the judgment in suit 139/58. And indeed in Exhibit ‘C’ a plan prepared for the purpose of this case, the plaintiffs show these areas of land as, they claim, were shown on Exhibit ‘X’ Exhibit ‘X’ (in Suit 139/58 was not put in evidence in this case”. (Brackets and underlining supplied)
After setting out the arguments and submissions urged on him by learned counsel on both sides, the learned Judge continued his judgment thus:-
“It appears to me that the respondents in basing their claim in this case on the decision in suit 139/58 are relying on estoppel per rem judicatam. And one of the things decided in the case is the portion of land within a larger area of land owned by the respondents, which the appellants are allowed to occupy. Counsel for the respondents concedes it, and I agree with him, that the onus was on the respondents to satisfy the court as to the extent of the land which the appellants can occupy by virtue of .. Suit 139/58. It is right to say that in considering a plea of estoppel per rem judicatam the subject matter of the dispute between the parties must be looked for in the proceedings of the case itself and secondary evidence is not admissible to “prove this. In my view having regard to the nature of the claim in this action, the best evidence to prove the areas of land occupied by the appellants before the decision in Suit 139/58 is the plan, I am at a loss to see how the learned President can form a rational view as to whether or not they, the appellants, have since the decision in the case (i.e. 139/58), taken up new farm lands. Neither Exhibit ‘B’ nor Exhibit ‘C’ can, in my view, make up for the absence of the plan … There is no evidence before the lower court that Exhibit B is similar to the plan used in Suit 139/58
(Brackets and underlining supplied).
From the foregoing passage it is clear that the High Court was of the view that in the absence of Exhibit’X’ it was impossible to determine the question whether or not the respondents (the appellants in the High Court) exceeded the areas of their several holdings reserved to them by the decision in suit 139/58; and as it is the appellants (the respondents in the High Court) who alleged that the respondents had gone beyond the said areas, the Ake Customary Court should have held that the appellants (the respondents in the High Court) failed to establish their case, and dismissed the claim in these proceedings.
From the above decision of the High Court the appellants unsuccessfully appealed to the Court of Appeal. That court applying a rather strict interpretation of the proceedings in the Customary Court took the view that by the “wording of the claim” a plea of estoppel per rem judicatam which was raised by the appellants was never established by them; the relevant passage of the judgment of that court reads:-
“Now, Mr. Sijuade, learned counsel for the appellants, has submitted in pursuance of the two grounds of appeal that res judicata is a special plea and that the plea was not relied upon in the court of first instance. Parties he submitted were not litigating in respect of the same parcel of land and it would be unnecessary to produce the actual plan tendered in the previous suit … Mr. Kolawole, learned counsel for the respondents, submitted for his part, that in the claim that was filed by the appellants, they relied on the previous judgment. Having regard to the wording of the claim, it was essential to tender the plan that was used in the previous case so as to identify the land that was litigated upon in that case … We have carefully considered the submissions of both learned counsel. We are in no doubt that having regard to the wording of the claim … the appellants relied on suit 139/58 and were thereby raising a plea of res judicata. To sustain the plea it would be essential to tender the plan that was actually used in that case or give reasons why it was not possible so to do .. We agree entirely with the reasoning of the learned Judge and his conclusions that the claim of appellants should be dismissed…..
(underlining supplied).
From the above decision of the Court of Appeal, the appellants appeal to this court upon the following grounds:-
“(1) The Western State Court of Appeal misdirected itself in law and on the facts when it held that ‘having regard to the wording of the claim of the plaintiffs/appellants, the appellants relied on suit 139/58 and were thereby raising a plea of res judicata’ in that :-
(a) upon the evidence before the court, the appellants relied on suit 139/58 only in support of their claim, and
(b) could not rely on it as res judicata since the land in dispute is not the same as the subject matter of suit 139/58.
(2) That the Western State Court of Appeal misdirected itself in law and on the facts in dismissing the appellants appeal on the ground that the exact plan in Suit No 139/58 was not in evidence when there was other evidence accepted by the trial court in support of the plaintiffs’ claim”.
The arguments and submissions in support of the above grounds of appeal which were urged upon us were substantially in keeping with the exact wording of the said grounds of appeal. We pause here, to draw attention to (1) the fact that these proceedings were initiated and tried in a Customary Court and, (2) the observations of the learned Judge on appeal in the High
Court (and which we have earlier on set out in detail in this judgment and) with which we entirely agree to the effect that Customary Courts being a survival of the former Native Courts, the High Court in dealing with proceedings from these courts (i.e. Customary Courts), is entitled and expected to go beyond the claim as framed on the writ and ascertain from the entire evidence before that court what, precisely, are the nature and subject matter of the dispute between the parties to the action. This principle of law by which special treatment and/or consideration is to be accorded to native court proceedings is settled by a long line of decisions in this country, and one of the most satisfactory statements on the said principle is to be found in a judgment of Francis, J., in which he made the following observations:-
“As regards Mr. Lambrou’s argument that the action in the Native Court being trespass does not bar these proceedings (in which the claim is for declaration of title). I am unable to agree. It is perhaps true that in a British Court where legal precedents and forms are adhered to an action for trespass would not be a bar to a later action between the same parties, (and in respect of the same subject matter) for a declaration of title, but it must be obvious that in the case of proceedings in a Native Court in which members of the legal profession as such have no audience great latitude must be given and a broad interpretation placed, on the proceedings and judgment so that in a case of this kind it is necessary in my view, to look at the whole of the proceedings, i.e. the evidence of the parties and the judgment, in order to arrive at a correct conclusion as to what the case was about. Having done so nothing can be clearer than that although the plaintiffs’ claim was set out as being the return of the plaintiff’s farmland’ the whole “conception and result of the proceedings were equivalent to what would be called in this court a declaration of title to land”.
(Brackets and underlining supplied).
(see Francis, J., in Ajayi (substituted for Saliu), the Balogun of Ijanna v. Aina, the Oba of Ibese (1942)16 NLR 67 at 71)
Applying to the above principle of law to the current proceedings, we are firmly of the view that both the High Court and the Court of Appeal placed a rather unduly rigid interpretation on the “wording of the claim”and the proceedings. Although when Francis, J., wrote the judgment of which the foregoing quotation forms a material portion, lawyers or members of the legal profession neither had audience nor presided in the Native Courts they now have audience and do preside in certain (but not all) grades of Customary Courts (among which may be numbered or included the Ake Customary Courts), the position has not altered materially. As with the Native Courts, the Customary Courts are not expected to apply the Common law of England, nor do the rules of pleadings and practice which obtain in the High Courts, as such, apply in these courts (i.e. Customary Courts); and although lawyers and members of the legal profession are permitted to appear in some (but not all) of these courts they are expected to base their submissions and arguments on the customary laws and practice prevalent in the areas of jurisdiction of these courts (i.e. the customary courts). Therefore, as with the Native Court proceedings, “great latitude” still has to be given and “broad interpretation placed” on proceedings and judgments of these courts which are but a survival of the old or former Native Courts. A Customary Court does not lose its character as such because it is presided over by a member of the legal profession or because members of that profession are today granted audience herein; and after all, the law to be administered in that court is limited (in so far as the former Western State is concerned) to that provided in Section 20 of the Customary Courts Law, Cap. 31, in Volume II of 1959 edition of the Laws of Western Region).
There is no doubt that had the claim (as worded and framed in these proceedings) been initiated in the High Court, that court would be right to take the view – and, it seems to us, that is the only correct view it could take of the claim – that not only were the appellants relying on Suit 139/58 to prop up their claim, they were also thereby raising a specific plea of estoppel per rem judicatam. As, however, this is an action initiated and tried in the Customary Court, we are of the opinion that it is wrong to take such an extreme view of the claim in the face of the overall evidence (from both parties), in these proceedings as did both the High Court and the Court of Appeal. Looking at the proceedings as a whole there can be no doubt that notwithstanding the form of the claim, the plaintiffs, the appellants herein, were merely asking for possession and injunction in respect of several areas of Igbonla and Itele Ile – lands of the people of Kesi – now being occupied by the respondents, in excess of the areas severally reserved to them by virtue of the decision in Exhibits ‘A’ and ‘A1’ (i.e. suit 139/58), without the authority of the Kesi Chiefs (i.e. the accredited representatives of the Kesi community). Such a claim even if and when initiated in the High Court (where statutory enactments relating to the Evidence Law and the practice and rules of the Common Law of England are applied by lawyers and members of the legal profession) does not eo ipso raise an issue of estoppel per rem judicatam save in so far as the defendants, the respondents herein, may (as, indeed, some of them in these proceedings have done) deny that portions of land in their occupation (i.e the area so occupied at the time of the decision in Suit 139/58) do belong to the Kesi community. But even in such circumstances the claim of the appellants cannot be determined (as the decision of the Court of Appeal in these proceedings suggests) merely or solely by a resolution of the issue of the plea of res judicata founded on Suit 139/58. There is no doubt that in order to arrive at a just decision in these proceedings, it is necessary for the court (whether it be the Customary or the High Court) to have before it, the plan Exhibit ‘X’) so that it can firstly, identify the area occupied by the respondents at the time of the 1958 decision and, secondly, the area by which the original, or 1958, holdings were severally exceeded by the respondents. While we accept that in approaching the problems raised in these proceedings, both the High Court and the Court of Appeal adverted to the principles of law relating to the interpretation of Native Courts proceedings as earlier on stated, these courts, however, gave too much prominence and laid undue emphasis on the issue of estoppel arising from the decision in the 1958 case (Exhibits ‘A’ and ‘A1’) which issue is, in our view, merely incidental to the principal point or question for decision in these proceedings; and which question whether the respondents went outside the areas reserved for their lawful occupation and possession by the 1958 decisions (Exhibits ‘A’ and ‘A1’ refer). There is no question that the onus of establishing the issue raised by this question is squarely on the appellants and that it is extremely difficult, albeit not impossible, for them to do so without producing Exhibit ‘X’ before the trial court. They tried unsuccessfully to do so in these proceedings; and this brings us to the next question which is whether, in the circumstances of these proceedings, the proper order is one of dismissal, of their claims. Such an order, undoubtedly, will have the effect of perpetually barring the appellants from relitigating the claim in these proceedings and the issues therein. By Exhibits ‘A’ and ‘A1’ the appellants established that title to the lands in the occupation of the respondents is, the assertion of some of the respondents to the contrary notwithstanding, in the Kesi Community and there is some evidence (even if inconclusive or insufficient in so far as the respondents are severally affected) which the trial court accepted, that the respondents have established new farms; and these farms may well be outside the areas reserved for the several occupation of the several respondents by the decision in suit 139/58. The tendency of the respondents to refuse to be bound by the decisions in Exhibits ‘A’ and ‘A1’ while they continue to establish new farms is, indeed, a dangerous trend, and in the circumstances, we hardly think that an order which has the effect of barring the appellants from having a just decision on their claims is justifiable or such as is envisaged in rule (1) of Order XI of the Customary Courts Rules (Cap. 31 in Vol II of the 1959 edition of the Laws of Western Region of Nigeria), applicable in the Ake Customary Court at the time of the trial in these proceedings.
That rule reads:-
A court (i.e. the Customary Court) may in its discretion make any order within its powers and jurisdiction which it considers the justice of the case demands whether or not the order has been asked for by the party who is entitled to the benefit thereof
We consider that under the provisions of the above rule a Customary Court can, in appropriate cases, nonsuit a plaintiff although he has not made any application for the order. However, learned counsel for both parties when invited to address this court on the issue, indicated that an order which has not the effect of perpetually barring the parties from re-litigating the issues raised by the claim on these proceedings is acceptable to them; both sides gave indication that an order nonsuiting the plaintiffs, the appellants herein, would be welcome at this stage. Once again, we pause to draw attention to the terms of the order in the penultimate paragraph of the judgment of the Ake Customary Court in these proceedings, which read:-
“There will therefore be judgment in favour of the plaintiffs for possession and injunction as per the Writ of Summons as against the defendants
The effect of this order when set against the claim on the Writ of Summons (which is for “possession of the portion or portions of the farmland occupied by the defendants on the plaintiffs farmland at Orile Kesi as per (the judgment in Suit 139/58 Ake ‘A’ Court ..”) is not only staggering but, indeed, contrary to the order which, as appears clearly from the overall evidence in these proceedings, the appellants seek. The order sought by the appellants as all the evidence indicate the wording of the claim notwithstanding is, indeed, one which should curb the excesses to the respondents by restraining each and every one of them from opening no new farms outside the areas occupied by them as at the date of the 1958 decision (i.e., the judgments in Suits 139/58, AB 40A/60 and SC 174/64), while at the same time reserving the right of the respondents to continue occupation of the areas already in their possession at the time of the litigation in 1958. Another reason why it is necessary to make an order which should give parties the chance of properly re-litigating the claims in these proceedings is this; although in his evidence the principal witness for the appellants – Chief Karimu – would have the court believe that at the time of the litigation in suit 139/58 the appellants had not planted any economic trees such as kola, cocoa, etc, the wording of the claim in the 1958 statement belies that portion of Chief Karimu’s evidence. The first part of the claim in that case (Suit 139/58) reads:-
a declaration that plaintiffs are the owners of the two pieces of land known as Kesi homestead or Igbonla and Itele Ile on which the defendants have committed trespass by entering, clearing and planting cocoa, kola, cotton about two years ago’..”
The claim came up for mention, for the first time before Chief Ilori, the President of Ake Customary Court, as appears from Exhibit ‘A’ on 13th January, 1959 and, if, as the claim on the writ alleges, these cocoa and kola trees were planted by defendants “about two years ago” then the economic trees, the evidence of Chief Karimu to the contrary notwithstanding, must have been planted as far back as 1957 (possibly 1956). An order (such as that made by the Ake Customary Court in these proceedings) which manifestly seeks to oust the respondents from the area firmly in their possession before and since the 1958 case, quite apart from being inconsistent with the overall evidence in that court is, indeed, not such as the justice of this case demands. Section 53(b) of the Customary Courts Law (Cap. 1 in Vol. II of the 1958 Edition of the Laws of Western Region) applicable in the Ake Customary Court at the time of the hearing in these proceedings invests both the High Court and the Court of Appeal (which heard the intermediate appeals in these proceedings) with powers in appropriate cases to:
‘”(a) quash any proceedings and thereupon where it is considered desirable, order any such cause or matter to be re-heard de novo before the court of first instance or before any other Customary Court or before any Magistrate’s Court.” It is our view that by virtue of the provisions in Section 22 of the Supreme Court Act No. 12 of 1960, it is within the competence of this court ” the reservation in Section 53 which appears to invest the powers in that section only in courts other than the Supreme Court, notwithstanding – to quash these proceedings and order the claims of the appellants to be re-tried in another court, or to make such directions as may deem to this court to do substantial justice between the parties.
Accordingly, this appeal will be and is hereby allowed; and the judgment of the Western State Court of Appeal in Suit CAW/58/73 dated the 1st day of March, 1974, and that of the High Court in suit A5/20A/71 dated the 23rd day of March, 1971, in these proceedings are hereby set aside. In substitution therefor, it is hereby ordered that the entire proceedings, together with the judgment and all orders thereof, of the Ake Grade ‘A’ Customary Court in Suit 420/63 dated the 19th day of August, 1971, be and are hereby quashed and set aside.
(2) It is further ordered that the claims of the appellants against the respondents in Suit 429/63 are hereby sent back to the Ake Grade ‘A’ Customary Court for purposes of re-trial by that court, and that:
(3) Parties be at liberty to file amended claims and/or cross-claims in the course of such re-trial. The appellants will have costs of this appeal in this court which we fix at N154.00 and in the intermediate courts of appeal which we fix at N228.00. Payment of costs, if any, already made by either party to the other pursuant to the several orders of the Court of Appeal, the High Court and the Ake Customary Court in these proceedings shall forthwith be refunded to the party who made payment.
Other Citation: (1977) LCN/1898(SC)
