Ologunde Atanda & Anor. v. Akanmi (1974)
LawGlobal-Hub Lead Judgment Report
SOWEMIMO, J.S.C.
In suit HOS/18/66, the respondent is the plaintiff and the appellants are the defendants. The case was first tried at the Oshogbo High Court and judgment was entered for the plaintiff. The defendants appealed to the Western State Court of Appeal and on the conclusion of hearing in suit CAW /49/68 the Court on Thursday 26th September, 1968, made the following orders:
“UPON READING the Record of Appeal herein and after hearing Mr. Adenekan Ademola of Counsel for the PlaintifflRespondent and Mr. Y.A. Agbaje of Counsel for the Defendants/Appellants, both counsel agreeing that this case be sent back for retrial by another judge:
“IT IS ORDERED:
(1) That this appeal be allowed.
(2) That the judgment of the High Court, Oshogbo delivered on the 20th day of December, 1967, including the order as to costs be set aside.
(3) That this case be sent back for retrial before another judge.
(4) That the order for the appointment of Receivers made by the learned trial judge on the 3rd day of June, 1966 shall remain in force pending the retrial and determination of the case provided that either party shall be at liberty to apply to the Court below for the variation of the Order, and
(5) That the Appellants be awarded costs assessed at 70 guineas.” The claim before the High Court reads:
‘The plaintiff’s claim against the defendants:
(a) A declaration that he being the Oye of IFON in the Oshun Division is entitled against the Defendants to the exclusive right to reap the palm fruits and nuts growing on the farmland known as ELEPOISEKI Farmland the property of the person who is the present holder of the OYE Chieftaincy in IFON.
(b) An injunction to restrain the Defendants, their agents, Servants from interfering with the Plaintiff’s rights over the farmland. Dated at Oshogbo this 11 th day of March, 1966.”
Pleadings were duly filed and delivered. At the resumed hearing of the case before Odunlami J. on 2nd May, 1969, the previous pleadings were not amended and the hearing proceeded on the issues joined. The plaintiff based his claim as the OYE and IFON and the defendants defended same as ‘Head of Opeyi and Modola Families’ .
The relevant portions of the pleadings on which issues were joined read as follows:
“STATEMENT OF CLAIM”
“6. The late Oye of Ifon one Ojo Oruboka who was approved and installed by the Olufon of Ifon was from Oyeyi family house to which house the 1st and 2nd defendants belong.
“7. The said farmland ELEPO- ISEKI from time immemorial belongs customarily to any holder for the time being of the Chieftaincy title of OYE of Ifon, and not the exclusive property of any of the Chieftaincy families.
“8. That the farmland known and described as ELEPO- ISEKI inclusive of the palm fruits and nuts and all other sundry economic crops now on the land is the property of the person who for the time being is the holder of the OYE chieftaincy title in Ifon.
“9. That since the appointment of the plaintiff as the OYE of Ifon, the plaintiff has continuously been exercising the right to reap palm fruits, nuts and other crops on the farmland without any interference from anybody.
“11. That the 1st and 2nd defendants and their agents, taking of the Military take over of the Government of the Region and the unrest thereafter have gone on the said farmland to disturb the tenants, reaped the palm fruits and other crops as well, and thereby causing unrest and challenging plaintiff’s authority over the farmland.”
“STATEMENT OF DEFENCE”
“1. As to paragraph 6 of the Plaintiff’s Statement of Claim the defendants say that the late Oye of Ifon, Ojo Orunbokamole came from Madola Ruling House of Oye of Ifon Chieftaincy Family.
“2. As to paragraph 8 of the Plaintiff’s Statement of Claim the defendants say that the farmland known as Elepo-lseki the subject matter of this action originally belonged to the defendant’s ancestor, Ojo Ibikoye, who acquired it by settling upon it after having been driven from his home town Iwoye near Erin-Ile about 200 years ago during the Fulani war.
“8. After the death of Oye Ojo-Ibiloye his children inherited the said farmland.
“12. Later some Chiefs from neighbouring towns came to settle with Oye and he also conferred subordinate Chieftaincy titles upon them among whom was Ajayi Layide who came from Ara and was appointed Akogun Oye by Bamgboye the then Oye of Ifon, and the Oye also gave him land upon which he established his Compound which later became known as Akogun Compound.
“13. The Plaintiff is one of the descendants of the said Ajayi Layide.”
The learned trial judge, after a careful review of the evidence given by both sides, gave judgment in favour of plaintiff. He stated inter alia in his judgment thus:
“In my view the defendants are resisting the plaintiff’s claim merely because the 1st defendant lost his claim to the Oye Chieftaincy title. I am satisfied with the evidence before me that the plaintiff and the defendants are of common ancestor and that he was entitled to be appointed Oye and that in fact, had been so appointed. I am also satisfied that by virtue of his title as Oye the plaintiff to the use of the land in dispute. I disbelieve all evidence to the contrary and I hold as a fact that the defendants and their witnesses have come deliberately to mislead the court. I disbelieve and reject their evidence when they told the court that the land in dispute is not a stool land attached to Oye chieftaincy title.
It is the defendants case that the whole area is Oye family land and this they have failed to prove. They are claiming through Ibiloye whom they alleged was the first Oye but evidence of plaintiff, the 2nd p.w. and the 3rd p.w. which I believe, shows that Ojo Ibiloye was never an Oye and that he died in Ara whilst fighting for the title. Apart from the defendants and their relation, the 4th defence witness, there is no other evidence to show that Ojo Ibiloye was ever an Oye.
“I therefore find for the plaintiff and I declare that the plaintiff being the Oye IFON is entitled as against the defendants to the exclusive right to reap the palm fruits and nuts from the ELEPO/ISEKI farmland, the stool property of the reigning OYE. The defendants, their agents and/or servant are hereby restrained from interfering with the plaintiff’s right over the farmland.”
The defendants, being dissatisfied with the High Court judgment,appealed to the Western State Court of Appeal. The Western State Court of Appeal stated in its judgment that all the sixteen grounds of appeal filed by the defendants were argued together. Its judgment however, only related to ground 14, which had not been argued at the stage when surprisingly, Counsel for appellant was stopped by the Court, the ground reads:
“The Learned Trial Judge erred in law and misdirected himself in giving declaration and injunction against the Defendants when the Plaintiff has failed to prove his case and when the identity of the area known as stool land is not clearly ascenainable.”
It might be convenient at this stage to point out that the relief sought from the Western State Court of Appeal reads:
“The judgment of the Oyo High Court be set aside and that Plaintiff’s claim be dismissed.”
The irregular procedure adopted in stopping learned Counsel for appellants from canvassing his grounds of appeal and the confusion and the misconception subsequently created by the Western State Court of Appeal are aptly demonstrated in the proceedings before that Court which read:
“Y. Agbaje:- The grounds of appeal will be argued together. The question is whether the land is stool land or chieftaincy family land’s. I submit it is chieftaincy family land upon which the plaintiff had no exclusive rights. Refers to page 15 lines 15-32 Page 16 line 26. This shows every member has right to reap palm fruit but with the permission of the family head. Refers to page 23 lines 1 and 2 Page 22 line 24. The land in dispute is family land according to the plaintiff. Plaintiff says he farms at Onigbongbo within the land in dispute.
Ajoyeba is in the land in dispute. The Oye takes Ajoyeba exclusively, members of the family reap palm fruits in the land in dispute. Page 15 line 22 Page 16 line 21 describes Elepo farm. At this stage Court calls on Mr. Somolu to relate the Plan Exhibit C to the evidence. Page 12 lines 35 et seq. The stool lands are called Elepo and Iseki page 13 lines 25-30. Court to Somolu:-You call land in dispute Elepo-Iseki but on page 16 line 21 there is evidence that there are other forms in Elepo-Awesi, Akinsaun, Onigbongbo and Pamo. Are all these stool land
Agbaje:-I notice it is difficult to understand the case from the record. ”
The judgment of the Western State Court of Appeal which was based on a point raised by that Court suo motu and which point was neither canvassed by learned Counsel for the appellant nor was any chance of argument allowed to the learned Counsel for the respondent, reads inter-alia:
“The Respondent tendered a plan marked Exhibit “C” which he said represented the land in dispute. However, in his evidence he said that Awesi, Akinsaun, Onigbongbo and Pamo are in Elepo fann land. He had stated in his claim that the land in dispute is known as Elepo-Iseki. Yet he stated that many families farm in Awesi.
His witness Bamiduro Jagun said that Elepo land is called Ajoyeba which the Oye takes to himself, yet 2nd defendant, he said, has his own land in Awesi while Elepo is the property of the Plaintiff by virtue of his being the Oye.
It is not clear on the plan Exhibit C, whether these lands Awesi, Akinsaun, Onigbongbo and Pamo are within the area shown as the land in dispute or they are outside it. If 2nd Defendant, has land in Awesi, is this Awesi within the land now being claimed as stool land
Yet in granting the declaration sought the learned trial Judge relied on the evidence of the Plaintiff and his witnesses, without resolving whether the area shown in Exhibit C encompassed what the witnesses described as the land of the Oye or as the other farms specified in their evidence. His conclusion was that if the land was family land, the family would not allow other family to go on the land.
“We think the learned trial judge had left out the important issue he had to determine and that is to relate the plan tendered before him to the evidence given. It is only then he could determine whether Exhibit C encompasses stool land or it includes other family land.
In the circumstances therefore we think that we would have to send this case back for retrial before another judge.”
At this stage, we wish to refer to the address of the learned Counsel for the respondent in the High Court, Oyo. He had this to say:
“The appellant admits that he and others farm on the land in dispute. He admitted reaping palm fruits on the land in dispute with Oye’s permission. Mr. Agbaje says that Oye says that he must reap palm fruits on the land for five years. Says plaintiff has land for five years. Says plaintiff has disproved exclusvie right. He refers to Exhibit “c” and says Elepo or Isheki is not known on it. Plaintiff gave the boundaries of the land. ”
In reply, Mr. Ademola, who was the Counsel for the plaintiff, is recorded as saying as follows:
“Urges Court to believe that it is stool land and Court should find for plaintiff. The trouble sparked off because another family is made Oye. Defendants’ house have made several attempts and challenged plaintiff’s appointment in vain, hence they don’t want him to enjoy the “property attached to his title. Defendant’s pleading does not show that only a small conclave Ajayeba is the one which plaintiff is entitled. The plaintiff is claiming the whole area hence no conclave. The evidence of Ishakile been made to Oye. Says plaintiff has proved the case.”
The learned trial Judge in his judgment dealt with the area of land, which is the subject-matter in dispute, and said:
“Mr. Agbaje next contended that the area in dispute is not clear, to my mind, Ex. “c” shows the whole area which the plaintiff is claiming ….
On the whole, I have no doubt at all in my mind that the land in dispute is stool land as it satisfies all the instance, there is no evidence that the family knew the amount of rent the reigning Oye used to collect on the land, no evidence as to the amount that the Oye was entitled to out of the whole amount he collected and the amount he gave to the other members of the family and thus if the Oye gave the members of the family anything at all, it would be merely ex gratis and not of right whereas if it were family property all these issues would have been settled and given in evidence.” (Already cited earlier in this judgment).
Three grounds of appeal were filed before us but ground 2 was abandoned, and only ground 1 and 3 were canvassed. The two grounds read:
“1. The learned trial Justices of the Western State Court of Appeal erred in law and acted on wrong principles in the exercise of their discretion to Order a retrial of the case the secopd time instead of dismissing or non-suiting the Plaintiff when the Plaintiff has failed to prove his case.
- The order of retrial is Oppresive and not a proper exercise of judicial discretion having regard to all the circumstances of the case and accordingly wrong in law.”
Under the item “Relief Sought from the Supreme Court”, the appellants asked that the “judgment of the Western State Court of Appeal should be set aside and an order dismissing the plaintiff’s claim or non-suiting the claim should be made instead.”
Learned counsel for the appellants submitted that the order made by the Court of Appeal for a second retrial of the case is arbitrary, because, before it was made, the parties were not given an opportunity of being heard and further that such an order had no relation to the relief sought before it on appeal from the High Court. Section 18 of the Western State Court of Appeal Edict W.M. No. 15 of 1967 reads:
“The Court of Appeal may from time to time make any order necessary for determing the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and “certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any Injunction which the court below is authorised to make or grant and my direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the High Court in its appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”
We are of the view that if a Court of Appeal intends to make an order other than that set out in the relief sought by the appellants in a case, then both sides ought to be asked to address the Court of Appeal on such relief. In the circumstances of this case, the Court of Appeal in its judgment pointed out that, on the evidence before the learned trial judge, it was not clear in respect of which area of land he made his declaration, nor did he make or resolve the different versions made by some witnesses of the appellants as well as that of the defendants. These versions related to areas of farming land and the reaping of palm fruits without any authority from the respondent.
The case before the lower Court was to determine whether the plaintiff had established title to all the land claimed by him, or only to some of it. In the former case, the claim would be dismissed if he failed in the latter case, if only a portion of the land had been proved to be that of plaintiff, judgment would be given for that portion only and the claim to the remainder dismissed. If there is doubt as to the extent of the land proved by the plaintiff, then an appeal court may, depending on the circumstances, order a court below to determine the extent established, and direct that judgment be given accordingly. Thus in exercising its powers under Section 18 of Edict No. 15 of 1967, the court of appeal will not order a trial of the whole case all over again. By doing otherwise in the circumstances of this case, the Court of Appeal would seem not to have made a correct judicial exercise of its discretionary power.
We have in the recent past had occasion to draw attention to the irregularity of procedure in not allowing Counsel to argue their appeal, but on the contrary, the Western State Court of Appeal would take over an appeal and decide it on the basis of ground or grounds raised suo motu. Such an exercise does not come within the purview of Section 18 of the Edict. The contention of both Counsel against this irregular procedure is valid. We do not, however, agree with the contention of the respondent’s Court counsel that the plaintiff’s claim should be granted. The judgment on appeal before us is that of the Western State Court of Appeal and the manner of its reaching its decision is, as agreed by Counsel for both sides an irregular exercise of a judicial discretion. That judgment must be set aside.
As this is an appeal against the judgment of the Western State Court of Appeal, we will allow it on the two grounds canvassed before us. We do not think the circumstances of the case justify a dismissal of the plaintiff’s claim in view of the admission of the defendants that a portion of the land, known as Ajayeba, is admittedly Oye’s stool land. We will therefore non suit the plaintiff’s claim.
The appeal, therefore, succeeds to the extent that the order for a re-trial by the Western State Court of Appeal was wrongful and is hereby set aside. We will, therefore, make an order of non-suit of the plaintiff’s claim. We think that, in the peculiar circumstances of this case, the orders for costs made in the Western State Court of Appeal should be and are hereby set aside.
We do not consider that costs should be awarded in this court because the Western State Court of Appeal had made an order which was not sought for by either party and which did not decide the appeal before it.
The appellants, however, having incurred some expenses in filing the notice of appeal and paying for the records, should be reimbursed to a total amount of N74,40 to be paid by the respondent to the appellants. And this shall be the judgment of this Court.
Other Citation: (1974) LCN/1807(SC)
