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: