Ibrahim Kano Vs Gbadamosi Oyelakin (1993)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C. 

The plaintiff, Chief Amuda Olorunkosebi the Ashipa of Oyo, for and on behalf of himself and the Ashipa family sued the defendant (who is now the appellant before us ) for and on behalf of himself and the Hausa Community, claiming forfeiture of the defendant’s tenancy in respect of a piece of land situate and being at Saba market Isale-Oyo quarters in Oyo town, arrears of rent and mesne profits until possession is yielded up. Pleadings having been filed and exchanged and amended by the defence, and the plaintiff having filed a reply to the statement of defence, the case proceeded to trial at the conclusion of which the learned trial Judge of the High Court of Oyo State (Oyo Judicial Division) found for the plaintiff and entered judgment in his favour “for an order of forfeiture of the land let by the plaintiff’s predecessor to the defendant in 1970 for use by the defendant as cattle enclosure.” The learned trial Judge further ordered –

“However, in view of the nature of the use to which the land is being put and perhaps the possibility of a settlement of the dispute between the parties in the near future, the order of forfeiture hereby granted is suspended for a period of six months.”

He also granted the plaintiff’s claim for N315.00 arrears of rent but said nothing on the claim for mesne profits.

The defendant was displeased with this judgment and appealed to the Court of Appeal. The latter court dismissed the appeal and upheld the judgment of the trial court. It is against the dismissal of the appeal and affirmation of the judgment of the trial court that the defendant has further appealed to this Court upon the following four grounds of appeal.

“GROUNDS OF APPEAL

1. The learned Justices of the Court of Appeal erred in law when they held that they ‘agreed with the finding of the learned trial Judge that the transaction was one of native law and custom and not intended to be governed by English law’, and thereby reached a wrong decision.

PARTICULARS OF ERROR

(1) When in the transaction, none of the incidents of customary grant was present nor complied with, namely, when there was no pleading nor printed evidence to the effect that the grant was made in the presence of witnesses contrary to the decision in Folami v. Cole (1956) SCNLR: (1956) 1 F.S.C 66.

(2) When the agreement of the learned trial Judge and the learned Justices of Appeal could NOT transfer NOR convert transaction that was clearly intended and carried out in accordance with rules of English Law into one under native laws and customs.

(3) When the agreement itself that is, the lease was the transaction relied upon by the plaintiff and which transaction was executed very many years before the respondent acceded to the title of the Ashipa of Oyo.

(4) When the lease, that is the document containing the agreement was not before the learned trial Judge.

(5) When on the pleadings the document was the LEASE relied upon by the plaintiff and not just a record of transaction under native laws and customs.

GROUND 2:

The learned Justices of the Court of Appeal erred in law by holding that the lease on which the plaintiff’s case rested in the Court of first instance was only a record of transaction under native law and custom when the lease was not before the High Court nor the Court of Appeal and when the respondent did not seek leave of the Court of Appeal to tender additional evidence in order to make the lease part of the records and yet reached a conclusion that the transaction is one under native law and custom.