Ashiru Noibi V. R. J. Fikolati & Anor.(1987)

BELGORE, J.S.C.

The matter subsequently leading to final appeal to this Court originated in Ekiti South Customary Court Grade 1. It went on appeal to the High Court of Ondo State, Ekiti Judicial Division sitting at Ado-Ekiti. The Plaintiffs’ claim in the Customary Court is as follows:-

1. Declaration of title to a piece of land which is at Odo- Idemo Street, Okerere quarters, Ikere-Ekiti.
2. 50pounds or N100 general damages for trespass committed and still being committed on the said land.
3. Injunction to restrain the defendant and his agents and servants from committing further acts of trespass on the said land. The said land is about 50 feet by 30 feet and is bounded as follows:

(a) On one side by the tarred Ikere-Ado road.

(b) On the second side by Amos Onikeko Egbake’s house

(c) On the third side by Omotoso’s shop

(d) on the fourth side by Agbanigo’s Storey House.

The value of the land is about 50pounds or N100. Dated at Ado-Ekiti this 19th day of June, 1971.

After a full trial an appeal was lodged in the High Court before Ogundare J (as he then was), who after listening to counsel on both sides in allowing the appeal on one issue concerning want of fair trial, ordered as follows:

“AND AFTER HEARING Mr. Adedeji, counsel for the defendant/appellant and Mr. O.A. Akanle, counsel for the plaintiffs/respondents, the court adjudged and gave judgment as follows:-

It is therefore my view that the exercise of the power to examine a witness or put questions to a witness was wrongly done by the trial court in this case. For that reason, therefore its judgment cannot be allowed to stand. This appeal therefore is hereby allowed. The judgment of Ekiti South Grade “I” Customary Court given on 5/11/79 is hereby set aside. I do not consider it necessary to deal with the other ground of appeal argued.

I shall now consider what consequential order to make. This case has had a chequered history as both counsel informed the court. I do not think that the ends of justice will be met by my ordering a new trial before the Ekiti South Grade “I” Customary Court. By virtue of section 45(a) of the Customary Court Edict, 1978 I hereby order that this case be tried de novo before the High Court, Ado-Ekiti. The costs of this appeal and the costs of the trial below shall abide by the result of the retrial.”

The case therefore by virtue of the above order went before Adeloye J (as he then was) at Ikere Ekiti for hearing de novo. Counsel appeared for both parties, and the case proceeded immediately to hearing. The Plaintiffs’ claims concerning declaration of title to land, injunction to restrain the defendant from trespassing on the same land and the evidence led on both sides never at any stage of the hearing raised any doubt as to the identity of the disputed land and the issue at stake. After a meticulous review of the whole evidence, the learned trial judge entered judgment for the plaintiffs as on the claim before the Court, i.e, the claim as originally filed in the Customary Court for trial de novo. There was no objection to the mode of trial in the High Court by the present appellant nor did any party request for pleadings. Against the decision an appeal was filed in the Court of Appeal, Benin Branch. In the original grounds, there was no mention of purported procedural failure of not initiating the trial de novo with a writ of summons and not filing pleadings. It came up in the additional grounds of appeal filed with leave of Court of Appeal, and it was the ninth ground of appeal at the hearing. It is remarkable that this ground was the one pursued vigorously before the Court of Appeal and is the only one pursued in this Court with any emphasis.

Section 45 Customary Courts Law (Ondo State Cap 33 of 1978) states:

“On the hearing of the appeal the High Court may draw any inference of fact and either

(a) order a new trial on such terms as the Court thinks just;