Yesufu Oyediran & Family V. Tafa Amaoo & Ors (1970)
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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-
“4. The land in dispute is part of Ekuro town which is the property of the plaintiff from time immemorial.
5. The land in dispute originally belonged to Agberu plaintiff’s grand-father who settled on it over 200 years ago.” In his evidence, however, the plaintiff said- “The Timi of Ede called Agbonran gave the land in dispute to my ancestor, Agberu. The grant was about 200 years. …My family pays ishakole of yams and money to the Timi of Ede ever since Agbonran gave the land to Agberu and up till this day.” The second witness for the plaintiff was the Timi of Ede and he supported the plaintiff’s evidence as he said- “The Timi called Agbonran gave the land to Agberu at Ekuro many years ago. Since then the land had been in the possession of Elekuro.”, though doubt on his actual knowledge was cast when under cross-examination he said- “I ordered inspection to ascertain the real owner of the land.” In his judgement Fakayode, J. said as to this- “I think the evidence of plaintiff’s traditional history is more likely to be true than defendant’s. In the first place plaintiff is one of the 4 traditional minor chiefs having their grants direct from the Timi of Ede, i.e. the Alawo, the Oniwoye, the Adoo and the Elekuro.
All these chiefs pay annual ishakole to the Timi for their holdings. …From the facts in the case I accept plaintiff’s story that plaintiff holds all his land (including the one in dispute) directly from the Timi of Ede and that the defendant’s family are in turn the tenants of the
PAGE| 4 plaintiff’s family in respect of the land now in dispute which is edged green on plan No. CK64A/66 tendered as exhibit E in this case.” It is clear therefore that the learned trial judge was finding for the plaintiff on his traditional evidence that his ancestor got the land by grant from the Timi of Ede. However, that was not how the plaintiff pleaded his case as his statement of claim which we have quoted was based on original settlement. In Adedibu v. Olofa (1968) NMLR 462 at 464 we said- “The defendants submit that as the plaintiff had rested his family’s claim on the allegation that their ancestor was an original settler in his own right, and not by virtue of a grant from a superior, the judgement itself show that he failed to establish the claim as pleaded, since the judge merely regarded this as one of two possible origins of the family’s title… .`The distinction between a settler as of right and the holder of a grant is no mere technicality……’ To sum up, on the judge’s own view of the facts we do not consider that he ought to have granted a declaration, since the plaintiff had not satisfied him of the truth of his claim as pleaded.
We are not prepared to make a more favourable finding than he did, and the consequence is, as has often been held in cases of this kind, that the claim ought to have been dismissed altogether.”
We think the plaintiff’s case as pleaded, and no amendment was ever sought, failed in toto and accordingly should have been dismissed. Mr. Latinwo for the plaintiffs argued before us that as the Western State Court of Appeal dealt only with one ground of appeal we also should only deal with that.
We see no substance in that submission when the way the appeal was argued before us appears from the record to be exactly how it was argued before the Court of Appeal so that there is no reason why we should not deal with it in the way that the Court of Appeal ought to have dealt with it rather than remitting the matter for reconsideration as Mr. Latinwo asked us to do. Counsel then submitted that this Court had a discretion whether or not to order a retrial and can do so if there are irregularities and he relied in particular on Akaighe v. Idama  1 All NLR 322 at 326, but that case pertained to whether there was power to order a retrial in a court which did not of itself have jurisdiction to deal with the case and it was held there was none so that it has nothing to do with the situation such as the present one.
In any case we do not see that there was any irregularity here that warranted a retrial. The learned trial judge clearly made orders that were not asked for and he was in error in so doing (see Illo v. Lawani SC.224/68 of the 4th of July, 1969 when we said- “It seems clear to us beyond any argument that the orders contained in the judgement do not pertain to either of the reliefs asked for by the plaintiff in his writ. We are consequently
PAGE| 5 in no doubt that the learned judge was in error in that he failed to adjudicate on the claims. The 1st ground of appeal must therefore succeed.”), but he also made findings that the plaintiffs’ title was derived for a grant from the Timi of Ede. As the plaintiffs had not pleaded a grant and had made no attempt to amend their pleadings to do so, they are bound by their pleadings and should not have been found to have established title by way of grant when they pleaded title by settlement.
If the Court of Appeal of the Western State had considered the matter more carefully it should in our view have come to that conclusion on the record before it and we accordingly set aside the judgement and order of the Court of Appeal only in so far as it ordered a retrial and we order that in place of that an order dismissing the plaintiffs’ claim be substituted.
The other orders of the Western State Court of Appeal, together with the orders as to costs that it made, remain. The defendants are entitled to their costs of this appeal in this Court which we assess at 73 guineas.
Other Citation: (1970) LCN/1754(SC)