Isaac Oladele Ogunyemi V. Fisayo Abiola & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Osun State, holden at Ilesa sitting in its appellate jurisdiction delivered on 12/7/06 dismissing the appeal filed by the appellant against the decision of the Grade C Customary Court, Epe in the Atakumosa West Local Government Area of Osun – State on 6/5/99.

The appellant sought the following relief before the Customary Court:

1. Declaration that the Plaintiffs Family, Ogunyemi Family of Oke-Ogbe are owners and therefore entitled to a grant of Customary Rights of Occupancy in respect of the farmlands situate, lying and being at Oke-Ogbe via Ibodi in Atakunmosa West Local Government Area of Osun State which said farmland measures about 250 acres. It is bounded as follows:

(a) On the first side by Daramola of Ile Oke Farmland;

(b) On the second side by Sadiku of Ibodi’s Farmland;

(c) On the third side by Eriperi Stream and;

(d) On the fourth side by Oda-Aro’s Farmland.

2. N2,000.00 general damages for trespass on the said farmland.
3. Perpetual injunction restraining the Defendants, their agents, privies and any other person or persons claiming title from further trespassing upon the said farmland.

The Customary Court dismissed the appellant’s claims. After judgment was delivered, the appellant through his solicitors by a letter dated 4/6/99 applied to the court for a certified true copy of the proceedings and judgment. In the letter it was alleged that the President and members of the Court were making moves to suppress the evidence of PW4, Loja of Ibodi, Chief Adetoye Ajibike, whose evidence was allegedly taken in camera. (see page 38 of the record). Replying on the Court’s behalf the Principal Chief Registrar of the Court stated that the said Oloja of Ibodi was not called as a witness by either of the parties in the case but was interviewed by the court in chambers “to give the court light as an Oba and custodian of the customs of Ibodi area.”

He appealed against the decision to the High Court. He filed six original grounds of appeal and subsequently filed an additional ground bringing the grounds of appeal to seven. The additional ground of appeal was in respect of the proceedings held in chambers. At the hearing of the appeal on 1/6/06 learned counsel for the appellant withdrew some of the grounds of appeal. His reasons are stated at page 23 lines 29 – 36 and page 24 lines 1 – 14 of the record thus:

“I wish to say with due respect that a critical appraisal of the appellant’s claim before the lower court and evidence as contained in the record of proceedings shows that the Appellant family are tenants of Oloja Ibodi and to that extent, I concede that the Appellant family is not entitled to a grant of declaration of title notwithstanding the length of their usage of the farmland, they cannot graduate to become owners of the farmland, for that reason I seek the leave of the court to withdraw Ground 2 of the grounds of appeal which deals with ownership. By extension and for the same reason, I apply to withdraw grounds 1 and 3 because we are not contending ownership. I intend to argue grounds 4 and 7 in support of the contention that judgment ought to be given by the lower court in favour of the appellant and against the respondent for trespass, damages and injunction. I also intend to argue grounds 5 and 6 in the alternative and with the view of urging the court to set aside the judgment of the lower court. The additional ground of appeal is challenging the entire proceedings and in arguing the ground we urge the court to declare the entire proceeding a nullity because part of the proceedings were conducted in chambers.”

After careful consideration of the submissions of learned counsel on either side, the lower court dismissed the appeal. Being dissatisfied with the part of the judgment relating to the conduct of proceedings in chambers, the appellant filed a notice of appeal before this Court containing a single ground of appeal. The said ground is as follows:

‘The learned trial Judge erred in law when he held that the interview of the Loja of Ibodi in Chambers will only affect itself and not vitiate the entire proceedings before the trial Customary Court.

Particulars

(1) The learned trial Judge misdirected himself when he failed to consider the position of the Law to the effect that court proceedings must be conducted in the open and that the said right of public hearing or conduct of proceedings is a public right which cannot be waived.