Plaintiff sued defendant in a representative capacity for a declaration that the defendant and his people were the customary tenants of the plaintiff’s people and owed annual customary tribute (Isakole) to the plaintiffs

The action was decided against the plaintiffs. The Native Court held that the defendants were not customary tenants of the plaintiffs and partitioned the land between them.

Both sides appealed to the District Officer who ultimately, affirmed the judgement of the Native Court.

Defendant appealed to the Resident’s court which set up an Arbitration Panel with the consent of the parties. The resident gave his judgement based on the findings of the Arbitration Commission in October 1950, ordering the Divisional Court to demarcate the boundary as defined by the Arbitration Commission. The plaintiff appealed against that judgement to the Court of the Governor (Western Provinces). The Chief Commissioner, giving the judgement of the Court of the Governor, Western Provinces set aside the judgment of the Resident’s Court and ordered a transfer of the case to the then Supreme Court (High Court), pursuant to his powers in that behalf under the Native Courts Ordinance, section 40(2).

At the Supreme Court, the defendant raised a preliminary objection as to the jurisdiction of that court on the ground that the original trial in the Native Court was a nullity and there was therefore nothing for the Chief Commissioner to transfer.

The trial Judge ruled that he had jurisdiction, after which the case was adjourned sine die.

The matter was relisted in the High Court on 27/2/56 but was struck out on the same day for non-appearance of the plaintiff. After some time the case was restored to the cause list on 3rd February 1960 in the Akure Judicial Division as Suit No.AK/49/59 before Delumo, J. who gave judgement for the plaintiff on 20th April 1962.

Defendant appealed to the Supreme Court but withdrew the case following moves by the parties to settle out of Court.

The Supreme Court dismissed the appeal as a result of the withdrawal. When the settlement out of court broke down, the defendant sought, without success, to have the case relisted.

Thus in 1974, the plaintiff (in a representative capacity) sued the defendant (also defending in a representative capacity) claiming a declaration that the defendants as their customary tenants should continue to pay “Ishakole” to them. The defendant counter-claimed, contending that the order of transfer of the appeal before the Resident’s Court to that of the Court of Governor, Western Provinces in 1951 was null and void and therefore the High Court (Delumo J) had no jurisdiction to hear and determine the suit as the transfer to his court was null and void also. Actual hearing of the case did not begin until 1978 and by then the case had been transferred to the Ondo State High Court before Adeloye, J. The trial Judge dismissed the suit, holding that the defendant could not reopen the issue upon which Hedges J’s. ruling constituted an estoppel against, and that the defendant could not raise in subsequent proceedings, an issue which he had neglected or refused to raise it in a previous proceeding. The defendant appealed to the Court of Appeal which allowed the appeal, holding that the transfer of his case by the Chief Commissioner to the then Supreme Court was a nullity as the appeal from the Resident’s Court was filed out of time, and also that on the principle of ex nihilo nihil fit, the proceedings before Delumo, J. and Adeloye J. were both nullities.

The Court of Appeal held that since the dismissal of the defendant’s appeal by the Supreme Court was not dismissed on merit, it could not bind the defendant. The Court of Appeal then ordered a retrial of the original claim. Being dissatisfied with the judgement, both parties appealed to the Supreme Court. The plaintiff against the whole judgement and the defendant against the order of retrial.