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SUIT NO. SC 539/1965.

3PLR/1967/19  (SC)








Yinka Ayoola, – for Appellant

  1. A. Faiemisin, – for Respondent



LAND LAW – Declaration of title – Need for plaintiff to show that plan corresponds with land claimed – Plan admitted without due proof – Other side not given opportunity to cross-examine.

PRACTICE AND PROCEDURE – Action in Customary Court – High Court on appeal setting aside judgment in plaintiffs favour in Customary Court dismissal substituted – Whether proper order is dismissal or non- suit – Plaintiff litigating same matter without success on two previous occasions – Whether enough to preclude order of retrial.



COKER, J.S.C. (Delivering the Judgment of the Court):

The appellant was the plaintiff and the respondent, the defendant in an action commenced in the Grade ‘B’ Customary Court of the Ilesha Northern District in Western Nigeria.

The Plaintiff had sued the Defendant for ’the ownership of a piece of farmland known and called Ereta”. The Grade ‘B’ Customary Court heard evidence from both parties and at the end of the hearing the President made an order that the plaintiff should prepare and submit a proper survey Plan of the land in. dispute within three months adding that “after the submission of which (i.e. the Plan) the Court shall fix a date for the decision of the case.” Judgment was thereafter given by the President awarding the plaintiff a declaration of title to the land claimed. The defendant appealed from this judgment to the Grade ‘A’ Customary Court of the Ilesha Division of Western Nigeria complaining, infer alia, that the plan was not formally tendered in evidence and so the defendant had no opportunity to cross-examine the plaintiff on it. In his judgment the learned President of the Grade ‘A’ Customary Court observed that the way in which the Plan had been produced and acted upon by the Grade ‘B’ Customary Court constituted an irregularity which is likely to lead to a miscarriage of justice. Apart from this observation he did not make any specific order on this finding but proceeded to point out that the plan filed did not agree with the evidence before the trial court as to the description of the land claimed. For this reasons, among others, he held that the plaintiff’s case should have been dismissed and he reversed the lower Court and ordered that the plaintiff’s case should be dismissed. The plaintiff then appealed to the High Court of Western Nigeria and Delumo, J., sitting in the Oshogbo Judicial Division, dismissed the appeal thereby affirming the judgment of the Grade ‘A’ Customary Court. The plaintiff then appealed to this Court.

At the hearing before us, learned Counsel for the plaintiff applied to amend his Notice of Appeal so that the relief sought might be one for a retrial of the whole case before a Court of competent jurisdiction. No doubt this court can so order in a proper case having regard to the provisions of Section 22 of the Supreme Court Act. Before us the point canvassed was that the learned President of the Grade ‘A’ Customary Court was requested to make an order sending back the case for a re-trial because no further evidence had been taken on the plan which was produced before the Grade ‘B’ Customary Court at the end of the hearing. Learned Counsel for the defendant before us argued that in-as- much as it was found (admittedly by the President of the Grade ‘A’ Customary Court) that the plan did not correspond with the oral evidence given about the description of the land, the proper order having regard to the authorities was one of dismissal of the plaintiff’s case. He submitted, and rightly so, that in a claim for declaration of title the plaintiff, where he produces a plan, must establish that the plan represents the area of land in respect of which he is seeking the declaration.

We must, however, observe that in this case the plan was produced before a Customary Court which did not advert to the necessity of getting the plan properly proved and less so of affording the other side the opportunity of cross-examining on it. We are not satisfied that the learned President of the Grade ‘A’ Court properly exercised his discretion in refusing to order a retrial as it is obvious from the record that no evidence was taken on which it could be safely said that the re-mark about the insufficiency of the plan could be justified. Counsel for the defendant had urged on us the fact that the plaintiff had had two opportunities of litigating the matter and had failed to establish his title to the land and that in those circumstances we should not order a re-trial. We do not know why the first re- trial was ordered and we are not convinced that this fact by itself alone is sufficient to preclude us from ordering a retrial. In similar circumstances the West African Court of Appeal had ordered a retrial, see Ate Kwadzo v. Robert Kwasi Adjei . We have come to the conclusion in this case that we ought to make an order for a re-trial. The appeal is therefore allowed.

The judgment of the High Court of the Oshogbo Judicial Division in Appeal No. HOS/14A/64 is hereby set aside as well as all other judgments on which it is based. It is ordered that the suit be tried, de novo before the High Court of Western State, the parties being at liberty to file fresh pleadings and produce proper plans If they be so advised.

Appeal allowed.

Retrial in the High Court ordered.


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