CaseLaw
Oje V. Babalola (1991) CLR 5(f) (SC)
Judgement delivered on May 24th 1991
Brief
Facts
This is an appeal by the defendant against the judgment of the Court of Appeal, Ibadan Division, which had reversed the judgment in favour of the defendants by Delana. J. sitting in an Ogun State High Court holden at Ilaro. The plaintiff's claim before the High Court, as amended, was for the following reliefs:-
The learned trial Judge, after trial, dismissed the plaintiff's claim in its entirely on the ground that they failed to discharge the onus of proof on them.
AAccording to the plaintiffs the original settler of the vast area of land of which the land in dispute forms a part was Osho Agoro Olarogun who had settled there over two hundred years ago. At the lime Olarogun settled on the land he met a settled community in Gaun, with its Bale. It was in fact the Bale who conferred upon him the title of Agoro of Gaun (sometimes spell GANUN). Olarogun begat Abidogun who in tune begat, among others. Alaba, a woman. Alaba married Oyede. As a result of this marriage Osho Agoro Olarogun family allowed the couple fishing rights over the river flowing through the land in dispute. However, when Alaba died childless the plaintiffs' family allowed Oyede to continue to enjoy the fishing, rights over the river on condition of payment of tribute. They continued to pay this until seventy years ago when they refused to pay. As a result of their refusal to pay further tributes, Chief Ashandere brought an action against the second defendant's family in Ake Grade A Court Abeokuta against one Falana a descendant of Oyede and an ancestor of the defendants. A certified copy of the proceedings of that case was tendered as Exhibit E.
Plaintiffs' case was further that the defendants' fishing rights over Igodo River had been forfeited or surrendered by their predecessors many years ago, but, that as acts of trespass they continued to Fish in the river and cut down valuable trees and dig the sand along the basin of the river and "us surrounding lands.
The defendants, on the other hand, claimed that the land in dispute and all the surrounding creeks originally belonged to them through their great ancestor, Onilube, who exercised exclusive and undisturbed rights of ownership and possession over it until his death about two hundred years ago. They agreed that Oyede was their ancestor but maintained that he occupied the land as of right as a descendant of Onilube. They also denied that Oyede ever married a wife called Alaba or that there was ever such a woman in their lineage. They also vehemently denied that Oyede or any of the ancestors ever paid tribute to the ancestors of the plaintiffs. Rather, Olarogun, the plaintiff's ancestor, had settled on the piece of land in dispute with the permission of the defendant-;' ancestor, Onilube. It was part of their case that Olarogun’s kith and kin had their own land at Isheri and lived there. They contended that the 1922 case. Exhibit E. was in their favour and confirmed their entitlement to the land in dispute. They also pleaded and tendered as Exhibit D another 1922 case-suit No. 32/22 of Ake Grade A Native Court, Abeokuta in which members of the plaintiffs family were convicted of unlawfully assaulting and wounding Falana and 3 Ors. of his family for setting fire to their huts and other property on the land.
The plaintiffs filed a Reply in which they joined issues with the defendants on a number of facts in their statement of defence.
The trial Judge suo motu struck out paragraphs 2,3.5,6 and 7 of the reply because they were introduced new and not in the original pleading. He dismissed the plaintiffs claim in its entirely on the ground that the plaintiffs failed to discharge the onus of proof on them.
Plaintiffs appealed to the Court of Appeal which held that although the reply of the plaintiffs might have raised new issues, they were not such issues as could have taken the defendants by surprise, particularly as the defendants' amended statement of defence was filed 18 months after the filing of the said Reply; that the way the paragraphs of the reply were struck out and evidence led on them disregarded led to a miscarriage of justice; that on a balance of probability based on a proper appraisal of the evidence, the plaintiffs case ought to have succeeded.
Defendants appealed to the Supreme Court.