Yesufu Oyediran & Family V. Tafa Amaoo & Ors (1970)

LawGlobal-Hub Lead Judgment Report

LEWIS JSC

In suit HOS/8/66 in the High Court Oshogbo, the plaintiff writ of summons read-

“The plaintiffs’ claim against the defendants is for declaration of title according to native law and custom to a piece of parcel of land situate, lying and being at Ekuro, Ede District, Oshun Division and will be shown on the plan to be filed with statement of claim.

The boundary of the land claimed is as follows:-Bounded on the North by Oye and Iwoye people’s land, on the East by Onisanyindo and Elemila people’s land, in the South by Adoo and Idoo people’s land and on the West by Aro River and Oloshuntedo’s land respectively. (2) An injunction to restrain the defendants, their agents or servants from entering into the land in dispute. (3) The annual rental value of the land is £20-5s-0d (Twenty pounds and five shillings).”

PAGE| 2  On the 29th of June, Fakayode, J. gave judgement and made the following orders- “(a) That the defendant on behalf of himself and the other members of his family shall within 60 days from today enter into a written tenancy agreement with the plaintiff in respect of the land in dispute, which is edged green on plan No. CK64K/66 admitted as exhibit E.

(b) That the said tenancy agreement shall contain a term that defendant’s family shall pay annual Ishakole not exceeding £5 in value to plaintiff’s family starting from January, 1966.

(c) That the members of the defendant’s family farming on the land in dispute shall be restrained from going or living on the land in dispute if the defendant fails to carry out the orders in (a) and (b) above.

(d) That without the consent of the plaintiff’s family no new tenant shall be allowed to farm on the land in dispute and no person now farming thereon shall extend his holdings.” together with an award of 120 guineas costs to the plaintiffs.

The defendants filed and argued a number of grounds of appeal in the Court of Appeal of the Western State but that Court dealt only with one, namely, that the judgement made no order in respect of the claim but did soon other matters. The judgement of the Court of Appeal delivered by Kester, P concluded with the words- “From the conclusion of the learned trial judge’s judgement it is clear that he made no order in respect of the claim before him.

A declaration of title is a discretionary relief. The fact that the Court accepted the story of the plaintiff does not mean that the Court must necessarily grant declaration of title as claimed.

As it is in the instant case there is no order by the learned trial judge granting declaration of title to the plaintiff in accordance with his writ of summons.

On the contrary he made an order not sought by the plaintiff. In our view the learned judge was clearly in error and we hold that the appeal should be allowed on this ground. We do not intend to make any observation in regard to the other grounds of appeal argued before us having regard to the order we intend to make, i.e. retrial before another judge, as this might prejudice the retrial.

The appeal is allowed and the judgement of the High Court, Oshogbo in suit No. HOS/8/66 including the order for costs is hereby set aside. The case is remitted to the High Court for retrial by another judge. The defendant/appellant is entitled to his costs of this appeal which we assess at 72 guineas against the plaintiff/respondent. He is also awarded 25 guineas costs in the High Court.”

PAGE| 3 Before us the defendants filed a number of grounds of appeal, which Mr. Akinjide argued, the substance of which were that the Court of Appeal of the Western State was right to set aside the judgement of the High Court but was wrong to order a retrial as the plaintiff had failed to prove his claim so that in Mr. Akinjide’s submission the Court of Appeal should have entered a dismissal of the claim. Now the plaintiffs claim for a declaration of title was based upon an original title by settlement of the plaintiff’s grandfather as in paragraphs 4 and 5 of the statement of claim it was pleaded-