Chief Amodu Tijani Dada & Ors. V. Mr. Jacob Bankole & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The original plaintiff at the trial court was Alhaji Bisiriyu Sule, He died whilst the matter was before the court below on appeal. The present appellants were substituted for him by the court below, similarly the original defendants were three, The 2nd and 3rd of them died whilst the case was pending at the trial .court, The subsisting 1st defendant prosecuted the case to conclusion at the High Court. He also died whilst the matter was before the court below. The present respondents were accordingly substituted for him.

The appellants, as the representatives of Ikotun and Matori families of Iyesi Otta, Ogun State brought their suit against the respondent (as defendant) as the representative of Isidana Family of Iyesi, Otta, Ogun State. In their 3rd Further Amended Statement of Claim, the appellants claimed against the respondents the following reliefs:

“1. A declaration that the plaintiff is entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being at Iyesi village, Otta, Ogun State which is clearly delineated blue on the survey Plan No. SEW/W/2496/4 dated 8th May, 1984. Annual rent of the said land being N100.00.

2. A declaration that by refusing to pay customary tribute and by claiming ownership of the piece of land which the defendants hold of the plaintiff as customary tenants of the plaintiff, the defendant have (sic) thereby forfeited their interest as customary tenants to the Plaintiff. Annual rent of said land being N100.00
3. Possession of the said parcel of land in dispute.
4. Perpetual injunction to restrain the defendants, their agents or assigns from encroaching on the said parcel of land.”

The parties filed and exchanged pleadings which they amended a number of times. The suit was tried by Oduntan J. of the Ogun State High Court. The Plaintiffs called six witnesses. The defendants called seven witnesses. On 19-12-94, the trial judge in his judgment granted all the four reliefs sought by the plaintiff. The defendant was dissatisfied with the said judgment. He brought an appeal before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’). On 5-7-2007, the Court below in its judgment allowed the appeal. The judgment of the trial court was set aside. Although the court below did not specifically say so, but the implication of the judgment was that the plaintiffs’ claims in their entirely were dismissed.

On 26-11-2001, the court below substituted the present appellants for the original plaintiff who was dead. Similarly, the court on 21-2-02 substituted the present respondents for the original defendant who was also reported dead. The appellants were dissatisfied with the judgment of the court below. They have brought this appeal. In their amended Notice of Appeal dated 22-03-05, they raised fifteen grounds of appeal. From these grounds of appeal, the appellants distilled two issues for determination. The issues are:

“1. Whether having regard to the manner in which the respondents/appellants in the lower courts formulated their 2nd issue for determination and the Court of Appeal having held that their argument on inordinate delay was unmeritorious, the Court of Appeal was right in proceeding to re-evaluate the evidence of both parties at the trial court, set aside findings of fact and make findings of facts thereon and come to the conclusion that the Respondents/appellants in the lower court had failed to discharge the burden of proof on it on the basis that the 2nd issue for determination had a second limb and it covetailed into whether the learned trial judge was right in giving judgment based on evidence adduced before him.

2. Whether the learned trial judge wrongly made use of evidence in previous proceeding and if so whether this was gross enough to vitiate the proceedings and overturn be judgment; whether the failure of the Court of appeal to make a pronouncement on whether or not the purported error of the trial judge is making use of evidence in a previous proceedings is gross enough to vitiate the judgment of the trial court is fatal to the judgment of the Court of Appeal.”

The respondents in the appeal have also formulated two issues for determination. The respondents’ would appear to be a better presentation of the matter in contention between parties. The issues read:

“i. Whether the second issue formulated by the appellants (now respondents) at the Lower court did not dovetail into a complaint against evaluation of evidence by the trial court thus empowering the learned Justices of the Court of Appeal to proceed to re-evaluate the evidence of both parties and make appropriate findings after their Lordships had discerned from the record of appeal that the trial judge had failed to avail himself of the opportunity to conduct a proper evaluation of the facts presented by parties at trial.

ii ‘Whether the learned Justices of the Court of Appeal were not right in holding that the leaned trial judge had m ade a wrong use of evidence in previous proceedings in a gross manner which engendered a miscarriage of justice and thus vitiated the judgment of the learned trial judge.”

I intend to consider together the two issues for determination because both are closely inter-related. But it is helpful to expose briefly the nature of the dispute which was submitted to the trial court for adjudication. The case made by the plaintiff in his 3rd Further Amended Statement of Claim may be summarized thus:

The land in dispute was first settled upon by the Plaintiff s great grandfather by name OLAKORU a hunter who migrated from Ile-Ife. Olakoru named the land lkotun. Following the death of Olakoru, his descendants known as lkotun and Matori families have continuously exercised rights of ownership over his land. In exercise of such right, a portion of the land was given to one Akilodi. The said land was known as Isidana compound. At Akilodi’s death, his land was inherited by his son Owolola. Owolola later brought on the land other persons including the defendant’s predecessor-in-interest as customary tenants. The defendant paid customary tributes in the form of yam and oil to Ikotun and Matori families. When the defendant felled trees on the land, he gave portions thereof to plaintiff’s families. The defendant has since been felling trees without paying the due tributes to the plaintiff s families. He has also laid a claim of ownership to the said Isidana land. The plaintiff therefore brought this suit claiming as earlier stated in this judgment.

The defendant raised his own traditional history which contradicted the plaintiffs. The defendant pleaded that the land was first settled upon by his ancestor named Osidana who migrated from Ile-Ife over two hundred years ago. Osidana was :l hunter. He also cultivated the land. He brought a shrine thereon which was worshipped as a deity. The shrine, known as ‘Amoola” was still regularly worshipped. The descendants of Osidana have through the years exercised acts of ownership over the land and granted portions thereof to diverse persons. The defendant denied that he and his forbears were plaintiffs’ customary tenants.

It was on this state of pleadings that the suit was tried by Oduntan J. at the Ogun State High Court. At the trial, the plaintiff tendered as exhibit ‘A’, a transcript of evidence given by one Isaac Bankole in suit No. OTB/172. CV.71 between Alhaji Bisiriyu Sule (the present plaintiff) and Michael Aina at Ota Grade B Customary Court. The said Isaac Bankole did not testify before the trial court in the current proceedings. Regrettably however, the trial judge, as I shall shortly demonstrate, erroneously made extensive use of the testimony of Isaac Bankole in the earlier case. Indeed the testimony of Isaac Bankole in exhibit’ A’ was used as a benchmark :’or assessing the veracity of the evidence given by other defence witnesses in the current case.