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Ayinde Adeyemo V. Okunola Arokopo (1988) LLJR-SC

Ayinde Adeyemo V. Okunola Arokopo (1988)

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I dismissed this appeal on the 15th day of March, 1988 after hearing counsel’s submissions and ordered the case to be remitted to the High Court of Oyo State, Ibadan for hearing de novo. I then reserved my reasons for the judgment till today and I now proceed to give them.

The appellant in this matter initiated proceedings in this matter by filing a claim in the Ibadan City No. 1 Grade A Customary Court in May, 1972.

The claim was for:

“1. Declaration of title to a piece or parcel of land situate at Poponla heyond Molete, Ibadan in Western State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed, later in the action.

  1. 50.00 being general damages for trespass committed by the defendant, his servants/or agents on the said land on or about July, 1969 and still continuing;
  2. Injunction to restrain the defendants, his servants/or agents from entering or committing further trespass on the said land. The value of the land is 50.00.”

After hearing evidence from the witnesses called by the plaintiff and the witnesses called by the defendant, the learned Chief Customary Court President dismissed the claim in the following words:

“From the evidence before me, it is quite clear that the plaintiff is not an exclusive owner. Claim for a decree of declaration of title is therefore dismissed. Claim for damages and injunction therefore fail and is dismissed.”

The plaintiff was not satisfied with the judgment and so he appealed against the decision to the High Court.

Before the hearing of the appeal, the original defendant Oladoja Aropoko, died. The appellant then sought and obtained an order to substitute Okunola Aropoko for the deceased from the High Court. Kayode Eso, C.J. (as he then was) made the order on the 13th day of November, 1976. The High Court [Kayode Eso, C.J. (as he then was)] heard the appeal and gave its judgment on the 27th day of October, 1977. Before the High Court, Chief Adisa, learned counsel for the plaintiff/appellant submitted that all the evidence before the court was not considered and proceeded to point out the pieces of evidence not considered.

Mr. Adekola, learned counsel for the respondent conceded this point for as the learned Chief Judge in his judgment said: (referring to the submission of counsel):

“He concluded by saying that the President made a mistake by not considering the evidence before him and the case was one for rehearing.”

Chief Adisa disagreed with the submission that the case should be reheard and asked for judgment for the plaintiff. The learned Chief Judge considered the issue of the proper order to be made – whether an order of non-suit or an order of retrial. He therefore decided on an order of retrial saying:

“However, there was so many points in the evidence of the plaintiff which were never considered by the trial president and he (sic) has not made use of the opportunity he had in seeing the witnesses and there should be a retrial.

The appeal is therefore allowed. The judgment of Olagbaju dated 28th June, 1974is hereby set aside and retrial is ordered before another customary court Grade A.”

This was on the 27th day of October, 1977.The plaintiff was still not satisfied and then appealed to the Federal Court of Appeal (now Court of Appeal) against the order of retrial.

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The relief he sought from the Court of Appeal was for “judgment for the plaintiff in terms of the writ for

(a) declaration of title;

(b) injunction; and

(c) assessment of general damages for trespass.”

The Court of Appeal (coram: Dosunmu, Omololu-Thomas and Sulu-Gambari, JJ.C.A.) heard the appeal, found that it was devoid of merit and dismissed it. Dosunmu, J.C.A. in his judgment (concurred in by Omololu Thomas and Sulu-Gambari, JJ.C.A.) observed

“There is no particular formula in writing a judgment in so far as the evidence on both sides was dispassionately considered before coming to a decision. Even if counsel to the appellant is correct in his argument, all he can get is a retrial and not judgment for his client. This was what was done in Odofin v. Mogaji (1978) 4 S.C. 91 where the principle was laid down……..”what is more The appellant’s counsel did not contend that all the many points in the evidence of the plaintiff which he argued were not considered by the court and which the learned Chief Judge adverted to in his judgment could not have affected his client’s case in any way. And without saying so, it is difficult to appreciate how he can validly challenge an order of retrial made by the learned Chief Judge in the circumstance.”

The plaintiff was again not satisfied with the judgment of the Court of Appeal. He then filed a notice of appeal to this Court challenging the decision on three grounds. Without the particulars, the grounds are:

  1. The learned Justices of the Court of Appeal erred in law as to the onus of proof of a better title in respect of the claims for trespass and injunction when the court held that it is the plaintiff who has to show a better title to the land in dispute in this appeal and not the defendant.
  2. The learned justices of the Court of Appeal erred in law in confirming the order of retrial made by the High Court without comparing the plaintiff’s root of title with that of the defendant so as to ascertain which of them has the better title and therefore the legal right to possession of the land in dispute before ordering a retrial;
  3. The learned Justices of the Court of Appeal erred and misdirected themselves in law when they held that the decision in Adejumo & Ors. v. Olagoke (1975) N.M.L.R. 38 does not apply in this appeal on the ground that the respondent here did not seek any declaration of title. The court does not give the same consideration to a plaintiff who seeks a declaration of title and the defendant who is only defending. The former has to succeed on his own and therefore the evidence he must put forward whether traditional or otherwise must be cogent.

The appellant filed a brief running to 34 pages in support of the above grounds. The respondent filed a reply brief running to 11 pages in reply to the arguments set out in the appellant’s brief.

The issues or questions for determination in this appeal formulated by the appellant are five in number and read:

“1. where the plaintiff claims to be in possession of land as owner and the evidence led for the defence is to the effect that he was put in possession by the defendant’s vendor for over 50 years as tenant, can the issue of possession be said to be in question to warrant a specific and express finding of possession by the trial court to ground the claim in trespass and injunction

  1. in the particular circumstances and on the facts of this case on whom lies the burden of proof of a better title on the issue of
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(a) declaration of title

(b) trespass and injunction

  1. is the standard of proof of title by grant different as between the plaintiff and the defendant when the onus of proof shifts on a defendant to prove that he is the owner and he has a better title than the plaintiff

can a contradictory, inconsistent and irreconcilable evidence as to the names of grantors and grantees on one side, and roots of title as well on the other side be validly accepted to prove title by grant to ancestor of the defendant’s vendor as the trial court has accepted

  1. is an appellate court inhibited from the exercise of considering and comparing the roots of title of both parties to test which party has proved a better title and therefore the legal right to possession of the land having regard to the particular circumstances of this case before ordering a retrial”

I think that the main question for determination in this appeal is:

whether having regard to the complaints against the judgment of the trial court in the first instance, the order of retrial made by the High Court and affirmed by the Court of Appeal is justified in law.

Learned counsel for the appellant called into play all his forensic ability in advocacy to persuade the court to hold that there is sufficient evidence on record to entitle him to judgment. His effort was not attended with any success as the trial court’s failure to consider many pieces of evidence identified in the High Court by the then learned Chief Judge (Eso, C.J. as he then was) can only be corrected by a retrial. The duty of the trial court or president is to consider all the evidence adduced carefully and make findings on them before coming to his judgment. He had the advantage of seeing the witnesses testify and forming an impression about their demeanour so as to come to a decision about their credibility. A court of appeal is deprived of the opportunity of seeing and hearing the witnesses testify. Even if the Court of Appeal judges may have come to a different decision if they were sitting as trial judges, having been deprived of the opportunity of seeing the witnesses and judging their credibility, the Court of Appeal’s duty as an appellate court is to send the case back to the trial Court or the High Court for either the same judge or another judge to rehear the case. See

Mogaji v. Odofin (1978) 4 S.C. 91

Okoye v. Kpajie (1973) N.M.L.R. 84

Fashanu v. Adekoya (1974) 6 S.C. 83

Woluchem v. Gudi (1981) 5 S.C. 291

Onyema Oke v. Amos Eke (1982) 12 S.C. 218

If nothing can be gained by an order for a new trial, an appeal court will retrain from making the order.

Taiwo Okeowo and 2 Ors. v. Mrs. D.A. Migliori & 3 Ors. (1979) 11 S.C. 138 at 201.

An order of retrial is not necessary if an appeal court can, in exercise of its appellate jurisdiction, do justice in the case and bring the litigation to an end. The duty of making findings of fact is essentially the preserve of the trial court.

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Egri v. Ukperi (1974) 1 N.M.L.R. 22

An order of retrial is also proper where the trial court failed to resolve vital conflicting evidence on important issues. See Onyema Oke v. Amos Eke & Ors. (1982) 12 S.C. 218 at 237. An order of retrial has the added advantage of giving the parties a second chance to prove their case and get the judge alerted about the loopholes and failings in the previous trial. The judgment and evidence in the previous trial are all swept away. The judgment does not operate as estoppel per rem judicatam and the road to justice is reopened. See Fadiora v. Gbadebo (1978) 3 S.C. 219 at 236.The main reason why the High Court ordered a new trial was because vital pieces of evidence favourable to the plaintiff were not considered.

Summarising the arguments of counsel before him, the learned Chief Judge, Kayode Eso, C.J. (as he then was), said inter alia:

“Chief Adisa said that all the evidence was not considered. He also submitted that the evidence of the 4th plaintiffs witness to wit:

‘the defendant built on the land of the plaintiff I told her that she built on the land of the plaintiff. She was driven but she refused to leave. She said the plaintiff could sue her’

was also not considered. Also not considered, Chief Adisa submitted, was the evidence given under cross-examination by the first witness of the defence to wit:

‘I reported 4th plaintiffs witness for destroying (sic) of the defendant’

Nor the evidence of the 5th d. w. under cross-examination to wit:

‘It is about 10 years since Salawu and the plaintiff started dispute on the land’

Nor finally the evidence of the 6th defence witness also under cross-examination to wit:

‘the defendant said it was Salawu who granted her the land and if he is not pleased, he can institute legal action’

Mr. Adekola conceded that the President did not write down most of the findings of fact apparent on the record. He concluded by saying that the President made a mistake by not considering the evidence before him and the case was one for rehearing.

Chief Adisa disagreed.”

In view of these submissions, no reasonable appeal tribunal will proceed to assume the role of a trial court or engage in assessing and evaluating the evidence of witnesses it has not seen and the learned Chief Judge was justified in ordering a retrial. The Court of Appeal was equally justified in affirming the decision of the High Court.

It was for the above reasons that I dismissed the appeal and affirmed the decision of the Court of Appeal. As there is no Grade A Customary Court functioning at Ibadan, Oyo State, I ordered that the hearing de novo be conducted by the High Court of Oyo State, Ibadan as the court of competent jurisdiction with liberty to the parties to file pleadings.


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