3PLR – CHIEF EBENEZER AWOTE AND OTHERS V. SUNMOLA KADIRI OWODUNNI AND ANOTHER

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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CHIEF EBENEZER AWOTE AND OTHERS

V.

SUNMOLA KADIRI OWODUNNI AND ANOTHER

SUPREME COURT OF NIGERIA

8TH MAY, 1987.

  SUIT NO. SC 186/1984

3PLR/1988/19  (SC)

 

OTHER CITATIONS

(1987) NWLR (Pt. 57) 366

 

BEFORE THEIR LORDSHIPS

BELLO; C.J.N.

OBASEKI, J.S.C.

NNAMANI, J.S.C.

KARIBI-WHYTE, J.S.C.

OPUTA, J.S.C.

 

REPRESENTATION

Mr. G.O.K. Ajayi, S.A.N. (with him Alex Adedipe and L. Adenekan) – for the Appellants

Professor Kasunmu, S.A.N. (with him Otunba Odedina and O. O. Adewunmi) – for the Respondents

MAIN ISSUES

Appeal – Attitude of Supreme Court where all lower courts were partly correct and partly wrong – Retrial suitable in such cases.

Land Law – Action for declaration of title – Effect of admission against interest through plans tendered by one of the parties in a previous suit – Whether other party can rely on such admission – Methods of proving identity of land claimed – Occasions when plaintiff can as an exception to the general rule rely on defence evidence to support his own case – Onus on plaintiff to prove identify of land claimed – Where parties have lands abutting each other – Necessity to show and prove precise boundary features along common boundary – Action for declaration of title – Where plans tendered are inaccurate – Attitude of court.

MAIN JUDGEMENT

OPUTA, J.S.C. (Delivering the Lead Judgment):

This case started from the Customary Court – from the Ijebu-Ode Grade “A” Customary Court. there the Plaintiffs claimed the following reliefs:

(1)     Declaration of title in accordance with customary law to all that piece of land situate lying and being along Ijebu- Ode/Ibadan Road, Ijebu-Ode at the back of Chief T. A. Odutola’s Compound, Ijebu-Ode as the property of the Plaintiffs’ family, to wit, the Oliwo Agbadagbodo Family (otherwise known as and called Olore Family of Ijasi quarter, Ijebu-Ode Western State of Nigeria).. The value of the land is £250.00 (Two hundred and fifty Pounds).

(2)     Two hundred and fifty Pounds being general damages for the trespass committed on the said land by the Defendant on or about the 24th day of June, 1968, and

(3)     Injunction restraining the Defendant, his agent, servants or assigns from any further act of trespass on the said land.

This being a case commenced in the Customary Court there was no order for pleading and plans to be filed and exchanged.

After hearing evidence from both sides the learned President of the Customary Court dismissed the Plaintiffs’ claim. This was on the 21st day of May 1973. The Plaintiffs then appealed from the Customary Court to the High Court Ijebu-Ode in its appellate capacity. Coker, J. (as he then was) allowed the Plaintiffs’ appeal and set aside the judgment of the Customary Court. The Defendants dissatisfied and aggrieved by the appeal judgment of the Ijebu-Ode High Court then appealed to the Western State Court of Appeal which allowed the appeal set aside the appeal judgment of Coker, J. (as he then was) and restored the original judgment of the Ijebu Ode Grade “A” Customary Court. The plaintiffs again dissatisfied and aggrieved have now appealed to the Supreme Court of Nigeria on four grounds of law and one of fact. The parties also filed and exchanged briefs of argument.

All the three Courts below reviewed the traditional histories of the parties and in obedience to the principle postulated in the now famous case of Kojo v. Bonsie (1957) 1 W.L.R. 1223/1227 they also considered the acts of possession of the parties on the land in dispute. An investigation into whether the 3 Courts below correctly assessed the traditional evidence of the parties and whether or not they related this evidence to the recent acts of possession of the parties will become necessary only when there is certainty as to the area in dispute.

Identity, Location and Extent of the Land in dispute

In this appeal I will confine myself to the identity, location, and extent of the land in dispute. I will therefore refrain from expressing any views on other aspects of this case. There is no doubt that the onus – (and a very heavy onus it is) is on a plaintiff/claimant asking for a decree or declaration of title to show clearly the area of land to which his claim relates. Baruwa v Ogunshola (1938) 4 W.A.C.A. 159 refers. The plaintiff can do this by such oral description of the land that any Surveyor acting on such description can produce a plan of the land he claims – see Kwadzo v. Adjei (1944) 10 W.A.C.A. 274. Another and perhaps better way of proving the identity and extent of the land claimed is by filing a plan reflecting all the features of the land and showing clearly the boundaries: Udofia AND anor v. Afia AND Ors. (1940) 6 W.A.C.A. 216. Udekwu Amara v. Udogu Modekwu (1954) 14 W.A.C.A. 580. Where the parties own land along a common boundary, it is necessary to show and prove the precise boundary features along that common boundary: Okorie v. Udom 7 ors. (1960) 5 F.S.C. 162.

In the case now on appeal, the following plans were tendered:

  1. Plan No. BK 7458 was tendered by the Plaintiffs as EX.A.
  2. Plan No. BK672 (Plaintiffs’ Plan) was tendered by the Plaintiffs as EX.B.
  3. Plan S.A. P/40/62 (Defendants’ plan) was tendered by the plaintiffs as EX.C.
  4. Plan S.A. F/122/63 (Defendants’ plan) was tendered by the Plaintiffs as EX.E.
  5. Plan No. 8699 (Defendants’ plan) was tendered by the Defendants as EX.F.
  6. Plan No. L AND L/A9009 (Defendants’ plan) was tendered by D.W.7 as EX.Z.

The interesting thing about the plans tendered in this case is that some of them were made ante motam litem while others like EX.C were plans used in previous proceedings in which the Defendants were parties. Any admission made by either side in any of those plans will now in this case be regarded as an admission against interest. Each party is therefore entitled to rely on such admission against interest in proof of his own case. Aduke AND anor. v. Aiyelabola (1942) 8 W.A.C.A. 43 at p.45; Akinola AND anor. v. Oluwo AND ors (1962) W.N.L.R. 133 at p.134.

I will now consider the description of the land in dispute by the parties and then relate that to their plans. The 4th Plaintiff, Majekodunmi Agunbiade from the Oliwo Agbadagbodo family testified that their family is also known as the Olore family. They own the land in dispute. His verbal description of the situs and extent of the land in dispute is an follows (see p.6 of the record of proceedings):

“I know the land in dispute, lying, being and situate along Awokoya Street near one Badaru’s boundary with Oliwo Agbadagbodo family land starts from the back of Chief T.A. Odutola’s Compound stretching up to Iwesi peoples land. Facing Ibadan direction and standing on the land in dispute the boundaries are:

Badaru family land          )

Jeje family land     )

Koku family and    )

Ibadan Road          )

On the right On the left

At the top by Iwesi people land and

At the bottom by defendant’s family land”.

I doubt whether on the above verbal description of the land a surveyor can pro-duce an accurate plan showing precisely the boundaries and the features of the land in dispute. The principle and rationale in cases like Ate Kwadzo v. Adjei supra will therefore not apply here.

One has then to look elsewhere, to the plans, tendered, to determine the size, the extent and the boundaries of the land in dispute. The Plaintiffs’ 1st. witness (P.W.1) was Akinyemi Togonu Bickesteth, Licensed Surveyor. In 1968 he carried out a survey of the land in dispute very probably for the purposes of this case. The Writ in this case was filed per Treasury Receipt No. 8291154 of 11/7/68 and P.W. 1’s plan No. B.K. 7458 dated 7th November 1968 was tendered as EX.A. On EX.A one sees very clearly marked Undisputed Area Belonging to Olore Family. Nowhere on Ex.A can one see equally clearly marked “Land in Dispute”. It is when the land in dispute is thus clearly identified that one can then proceed to investigate the boundaries and the features to determine whether or not these reflect and correspond with the verbal description of the land in dispute given by the 4th Plain-tiff. The Plaintiffs’ plan EX.A from this angle is a total failure.

Also EX.A is merely a reproduction of Plan No. BK. 627 made by P.W.1 on 5th June, 1950 tendered as EX.B which was made neither in contemplation nor in pursuance of the present dispute. Exhibit B did not therefore bother to show the precise boundary or boundaries separating the Plaintiffs’ land and the Defendants’ land especially around the vicinity of Odutola’s Compound. The Defendants used EX.C in Ijebu-Ode “Grade B” Customary Court Suit No. J.C.C. B/56/61. P.W.1 “married” EXS. B and C and produced EX.A. The evidence of P.W.1 is that “the area verged yellow on EX.A is undisputed” That area is indicated on EX.A as “Land of Omoba Ijasi People” the Defendants. If the area verged red in EX.A is undisputed and the area verged yellow in EX.A is also undisputed, one wonders what this whole case is then all about? When EX.B was “related” to EX.C to produce EX.A there was an overlap verged green. Who owns that area? From the evidence of P.W.1 and his “Notes” on EX.A the area verged green forms part of the “undisputed” area belonging to Olore family”. Then on the other hand and at the same time, the same area verged green forms part of the “Land of Omoba Ijasi People”. In other words both the Plaintiffs and the Defendants are “undisputed” owners of the area verged green, the area so the overlap. Two parties to a land dispute can-not conceivably be undisputed owners of the same piece of land within the area in dispute. This is another unsatisfactory feature of this case.

In an action for declaration of title the onus is on the claimant to show clear title. If for any reason he fails to do that – like failure to establish precise boundaries as in this case – his claim fails. In J. M. Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336 at pp. 337/338 the West African Court of Appeal held:

‘The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defend-ant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks and judgment must be entered for the (1987) defend-ant.

Hard luck for the plaintiff! Can one really say that a judgment for such a defendant as above described satisfies the dictates of justice between the parties? Although such a judgment decrees no title in the defendant, it will however allow him to remain in possession. I think that justice should demand something much more than this legal quibbling.

The Federal Supreme Court recognised that although a plaintiff seeking a declaration of title must succeed on the strength of his own case, yet there are occasions when the weakness of the defence tends to strengthen the plaintiff’s case. In such an instance the plaintiff can rely on any evidence of the defence tending to support his case: Akinola AND anor. v. Oluwo AND Ors. (1962) W.N.L.R. 133 at p.134. In Kodilinye’s case supra learned counsel for the Appellants referred the Court to Order 39 rule 1 supreme Court Rules permitting the Court suo motu ’Where satisfactory evidence shall not be given entitling either the plaintiff or defendant to judgment to enter a non-suit”. This, the West African Court of Appeal in that case refused to consider. This may be yet another example of law triumphant and justice prostrate.

Let me now consider the Defendants’ case as it relates to the “land in dispute” in order to determine whether there is any aspect of their case that supports the plaintiffs’ case. The Defendant Ramos Abdul Raimi Oshitade from the Omoba Ijasi family claimed ‘the land in dispute” as belonging to Omoba Ijasi family. He called Chief Josaiah Oladipo Laniyonu, Licenced Surveyor as D.W.7. D.W.7 prepared many plans for the Defendants. For the purposes of this appeal two of these plans are very important namely – Plan No. LANDU8699 made in 1968 and tendered as EX.Z. In EX.F (showing Omoba Ijasi family land) below an inscription Agbtinbirin Farm boldly appears Olore’s Farm. Olore is another name for the Plaintiffs’ family. This Olore’s Farm abuts Odutola’s Compound which the 4th Plaintiff in his evidence testified was the starting point of the Plaintiffs’ family land. Exhibit F therefore seems to confirm the Plaintiffs’ case. From Ex. A, and EX. F it will appear that they overlap, the area verged green in EX.A is also the area where Olore’s Farm is situ-ate. Then there is EX.Z made in 1969 when this case was pending and made presumably for the purposes of this case. Exhibit Z also shows “Olore’s Farm near Odutola’s Compound separated only by the breadth of Alhaji Kassim Road. Under cross-examination by Osinusi, learned counsel for the Plaintiffs, D.W.7 admitted at p.57 of the record:

“I agree that EXS F and Z are not marked land in dispute.”

And at p.58 he further admitted:

“EXS. F AND Z contain all the details shown to me by the Omoba Ijasi family.”

It is however revealing to note the question and answer in Re-examination:

“Re-examination by Odedina

Please explain details of Rosanwo, Korobiowu, Olore and other farms indicated on plan EX.Z.”

Answer:

“During my survey I saw a farm and I asked from my employers the names of those who farmed there and the names so supplied is that indicated on plan EX.Z”.

If in 1969 one year after this case started the Plaintiffs still had farms near Odutola’s Compound then EXS. F and Z are among the most eloquent evidence for the Plaintiffs/Appellants and the most damaging evidence against the Defend-ants/Respondents.

The plans used in this case, EXSA F and Z fall far short of what is required of plans in land cases. The plan in a land case should be properly orientated, drawn to scale, and accurate. Such a plan should reflect all the boundary features and show clearly the boundaries in dispute especially where the lands of the contesting parties but on one another. Where, as in this case, parties own land on either side of a common boundary, it is necessary to show very clearly where that boundary is and what it consists of otherwise (as also in the present case) such plans will be regarded as vague and inaccurate. The court cannot declare title in the Plaintiffs/Appellants on EX.A nor can it be oblivious of the admissions against interest made by the Defendants/Respondents in EXS. F and Z.

The Ijebu-Ode Grade ‘A’ Customary Court rightly in my view critized the inadequacy of the plans used by the Plaintiffs/Appellants and the inaccuracy of the oral evidence, vis-à-vis those plans, in support of the Plaintiffs/Appellants’ boundaries. For instance the evidence of the P.W.4, Abudu Jeje can only the tested if the Plan EX.A showed correct boundaries and the relative position of the Jeje family land. But the Customary Court was wrong in completely ignoring the evidence of the Defendants’ Surveyor Chief Josaiah Oladipo Laniyonu that in 1969 the Plaintiffs still had farms on the area of EX.Z clearly marked “Olore’s farm”. The Defendants’ admissions against interest in EXS. F and Z were completely overlooked by the Grade ‘A’ Customary Court.

Coker, J. (as he then was) was right in his castigation of the Grade ’A’ Customary Court in relation to the issue of boundaries and boundary features. But the learned appellate judge had no right to “draw a new plan” of the land in dispute for the parties.

To that extent the Court of Appeal was right in its comments against the judgment of Coker, J. (as he then was). But the Court of Appeal itself fell into the same error (as the Grade ‘A’ Customary Court) in not considering the devastating effect of the Defendants’ admission against interest in EXS. F and Z. Where all the Courts below were half right and half wrong, justice will demand a retrial of the case.

Therefore in the interest of justice, and acting on the general powers conferred on this Court by Section 22 of the Supreme Court Act No. 12 of 1960 and Order 8 Rule 13(1) of the Supreme Court Rules 1985, a new trial in the appropriate High Court where accurate plans and pleadings should be ordered will be the only just and equitable answer. To that end this appeal is allowed. The judgments and consequential orders of all the 3 Courts below are hereby set aside and in their place a new trial of this case in the Ijebu-Ode Judicial Division of the Ogun State High Court is hereby ordered. I will make no orders as to costs.

BELLO, C.J.N.: I have had a preview of the judgment just delivered by my learned brother, Oputa JSC. I concur that the judgments of the Court of Appeal, the High Court and the Customary Court should be set aside.

The evidence is overwhelming that the Appellants and the Respondents have their respective lands abutting one another. The only dispute is the boundary between the land of the Appellants and the land of the Respondents. Since the Appellants as plaintiffs have failed to prove the boundary, it will not be right to dismiss their claim. It is a proper case to order a retrial.

Accordingly, I agree the case shall be remitted to the High Court for a retrial. I will also make no order as to costs.

OBASEKI, J.S.C.: This appeal is in respect of a land matter the proceedings in which were commenced in Ijebu Ode Grade ‘A’ Customary Court on 11th July, 1968 and has made its journey to this Court through the High Court (Coker, J.), the Western State Court of Appeal and the Court of Appeal.

The plaintiffs lost in the Customary Court Grade ‘A’, won in the High Court in exercise of its appellate jurisdiction and lost in the Court of Appeal. The claim filed in the Ijebu Ode Customary Court Grade ‘A’ Ijebu Ode was for (1) Declaration of title: (2) £250.00 general damages and (3) Injunction.   More particularly, the claim reads:

‘The plaintiffs claim from the defendants as follows –

(1)     Declaration of title in accordance with customary law to all that piece or parcel of land situate, lying and being along Ijebu Ode/Ibadan Road, Ijebu Ode (at the back of Chief T. A. Odutola’s compound, Ijebu Ode) as the property of the plaintiffs’ family, to wit, the Oluwo Agbadagbodo family (otherwise known as and called Olori family) of Ijasi Quarter, Ijebu Ode, Western State of Nigeria.

The value of the said land is £250.00 (two hundred and fifty pounds)

(2)     £250.00 (two hundred and fifty pounds) being general damages for trespass committed on the said land by the defendants on or about the 21st day of June, 1968 and

(3)     Injunction restraining the defendants, their agents, servants or assigns from any further acts of trespass on the said land.”

The issues for determination formulated in the appellants’ brief are:

“(1)   Did the learned High Court Judge fix the boundary of the area claimed arbitrarily without evidence to support it? i.e. whether the High Court’s award of declaration in respect of area edged red in plaintiffs’ plan less the area edged green was arbitrary?”

On this issue, learned counsel for the appellants contended in their brief that: the learned trial Judge followed the only course open to him having regard to our abandonment of the claim to a larger area of land for a smaller defined one.

(2)     Did the plaintiffs not prove the eastern and western boundaries? i.e. whether the Court of Appeal was right In holding that the boundaries of the land in dispute on the east and the west were not proved because one witness gave evidence to the effect that the land belonged not to the plaintiffs but to the defendants”

On this issue, learned counsel for the appellants contended that the defend-ants/respondents have never contended that the boundaries shown on the plan do not represent the demarcation of the land in dispute between both parties.

(3)     The third question for determination is this:

‘Was the Court of Appeal right in holding that the High Court ought not to have interfered with the Customary Court’s findings?”

On this issue, learned counsel for the appellants contended that the Court of Appeal erroneously took the view that the High Court had been substituting its own views on credibility for those of the Customary Court President.

(4)     The fourth question formulated for determination reads:

‘Was not the Court of Appeal falling into the same error as the Customary Court President?”

On this issue, learned counsel for the appellants contended that the Court of Appeal took the view that a trial court is entitled to prefer one of two conflicting traditional stories without bothering to refer to present day facts and events. He further contended that the Court President that because the details of all structures and trees and crops on the land (measuring some 175 acres) were not shown on the plaintiffs’ plan, there was no proof of acts of farming. Learned counsel ended by submitting that the Court of Appeal failed to appreciate the evidence. He submitted that there was admission by the defendant that his family heard in 1930 that the plaintiffs’ family had been selling land in the area and that they had done nothing about it or sued. He complained that the learned President did not give credit to the plaintiffs for this.

Learned counsel for the respondents has raised the Issue of competence of appellants’ counsel to formulate questions 1 and 2 as the appeal against a refusal of application to amend the claim by fixing Awokoya Street on Exhibit A as southern boundary was abandoned in the High Court. He also contended that there was no appeal against the findings and conclusion of the President of Grade ‘A’ Customary Court that the evidence of boundary given was unsatisfactory. Learned counsel for the defendants/respondents dealt at length with the treatment of the traditional evidence by the Court of Appeal. He observed that most of the effort of the High Court on this aspect of the case was devoted to castigating the learned President for believing the evidence of the defendant and also in showing that the defence witness was not a witness of truth.

The issues for determination cannot be given adequate treatment without full straightforward supporting evidence. This I have found lacking and where not lacking, I have found it providing no proper solution. I have had the advantage of reading in draft, the judgment of my learned brother, Oputa, JSC. delivered a short while ago. There, my learned brother has also alluded to the unhelpful state of the evidence and their treatment in the 3 Courts below. I agree with him that the appeal be allowed and the case remitted for retrial. I agree with him that pleadings were not filed in the Customary Court Grade ‘A’. The Customary Court Rules make no provision for the filing and exchange of pleadings. In view of the long history behind this land matter and the complexity the acts of possession has created over the years, the real issues between the parties should be settled in pleadings duly filed right from the Court of trial of first instance. The elements of surprises should be eliminated so that the real issues in controversy can be deter-mined. Without pleadings in a matter of this nature, there can be no proper trial of all the issues in controversy.

On the issue of boundary, the oral evidence and the plans cannot be married and since the boundaries were not described to determine credibility. It is a matter for regret that after 19 years this land dispute is still with us in the courts and that trial has to start all over again. It is a settled principle of law that there can be no finality in adjudicatory process and litigation until justice is obtained and length of time does not constitute a barrier to justice once a matter is in court.

Where a court of trial fails to advert its mind to and treat all issues in controversy fully and there is insufficient material before the appeal court for the resolution of the matter, the proper order is one of retrial.

The principles which should guide the courts in making an order for retrial have been discussed and set out in many decisions of this Court in both criminal and civil matters. A few of them which may be mentioned are:

(1) Yesufu Abodundu AND ors. v. The Queen (1959) 4 F.S.C. 70 at 73

(2) Ayoola v. Adebayo (1969) 1 All N.L.R. 159 at 162

(3) Mane v. Commissioner of Police (1977) 6 S.C. 119

(4) Okpare v. The Republic (1977)4 S.C. 53

(5) Evorokoromo v. The State (1979) 6-9 S.C. 3

(6) Bamidele v. Adeyemi (1963) 1 All N.L.R. 146, 148

In Ayoola v. Adebayo (supra), Coker, J.S.C. delivering the judgment of the Supreme Court, warned:

“An order for retrial inevitably implies that one of the parties usually the certainly before deciding to make such an order, we think that the appellate tribunal should satisfy itself that the other party is not thereby wronged to such an ex-tent that there would be a miscarriage of justice. We do not propose, as the matter had not been fully argued before us, to lay down any hard and fast rule as to the circumstances that would justify the exercise of the power to order a retrial but we must do point out that an order for a retrial is not appropriate where it is manifest that the plaintiff’s case has failed in toto and that no irregularity of a substantial nature is apparent on the records or shown to the court.”

In Bamidele AND Anor. v. Adeyemi AND Ors. (supra), Bairamian, F. J., delivering the judgment of the Federal Supreme Court at 148 observed:

“Now the trial judge used that statement which was not proved to be a statement made by the 2nd defendant and which he denied, as a means of discrediting his evidence on a point which would have exonerated him. It has been argued for the plaintiffs that the trial judge would have disbelieved him any way even without the test of the statement, for other reasons for disbelieving him were also given in the judgment. We cannot say. We are faced with a flaw in the consideration of the vital issue of negligence and the only proper course is to have a fresh trial.

The parties should be at liberty to put in fresh pleadings and adduce whatever evidence may be needed on the issues raised.

In the instant appeal, the flaws which have been highlighted by my learned brother, Oputa, J.S.C. demand that the justice of the case can only be met by ordering a fresh trial.

I will and hereby allow the appeal, set aside the decision of the Court of appeal and remit the case to the High Court of Ogun State, Ijebu Ode, for retrial on pleadings to be filed on the order of the court.

I endorse the order for costs made by my learned brother, Oputa, J.S.C.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother Oputa, J.S.C. and I entirely agree with his reasoning and conclusions. When this appeal was taken before this Court, it was clear that although several plans had been filed by the parties, it was not clear at all what area was in dispute. It was not surprising that learned Senior Advocate for the Respondents, Professor Kasunmu concentrated his assault in the appeal on the failure of the Appellants who were plaintiffs to prove the boundaries of the land they claimed – a failure which could be fatal. See Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159. Also Ezeokeke and Ors. v. Uga and Ors. (1962) 1 All N.L.R. 482; Alade v. Dina (1943) 17 N.L.R. 32. As regards the Southern boundary of the land claimed by the appellants, they pleaded that their boundary was at the back of Odutola’s Com-pound. In Exhibit A, which is the Appellant’s Plan in this Suit, there is a street called Awokoya. The amendment of the Statement of Claim which the Plaintiff/Appellants sought but which we refused by the President of the Customary Court was to move that Southern Boundary to Awokoya Street higher up from Odutola’s Compound. One of the issues contested by the respondents in the Court of Appeal was the amendment of this same Southern boundary to include the area verged Green in Exhibit A, further compounding the issue. The eastern boundary of the land in dispute was allegedly not proved particularly due to the evidence of Ali Jeje P.W.4 at p.6 of the Record. His evidence was at variance with the evidence of P.W.1., the Surveyor. But in 1930 and 1963 the respondents had in their plans Exhibits E, F and Z indicated land belonging to Olore – the Appellants are entitled to take ad-vantage of.

I therefore agree that fresh proceeding be taken to enable both parties file fresh plans clearly indicting the area in dispute. It has been settled that if the Court is in a position, after considering the evidence to do complete justice between the parties an order for new trial should not be made See Idigbe, J.S.C. in Okeowo v. Megliore (1979) 11 S.C. 138. I do not think this Court can do complete justice between the parties on the state of the evidence in this case to which I have made reference.

I would therefore also allow the appeal and set aside the judgments of the Customary Court, High Court and the Court of Appeal. I also order a new trial by a Judge in the Ijebu Ode Judicial Division of Ogun State High Court. I adopt the order for costs made by Oputa, J.S.C.

KARIBI-WHYTE, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Oputa, J.S.C. in this appeal, I agree with the reasoning therein and the decision that in the circumstance the interest of justice demands that the appeal be allowed, and order for a new trial made. Accordingly the judgments and consequential orders of all the three courts below are hereby set aside. It is hereby therefore ordered that a new trial of this case with pleadings in the Ijebu-Ode Judicial Division of the Ogun State High Court can be had.

There is no order as to costs.

 

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