The Customary Court of Appeal, Ado-Ekiti, has ordered the re-trial of the case between Chief Samuel Ojo Agba and Waheed Ayinla Fadesere at the Customary Court Ise-Ekiti in its assize sitting in Ise Ekiti.
This comes after an earlier judgement delivered by Mrs. A. O. Ajetunmobi, Mr. R. M. Osedipe and Dr. Olowolayemo at the Ise Customary Court on 12th September, 2022, with suit number ISE/CC/26/2020.
The issue in contention stemmed from the Customary Right of Occupancy of a farmland called ‘Adesegun Farmland’ located at Ise-Ekiti. The rightful occupancy or tenancy is between three parties – heirs of Madam Rachel Fadero (overload), the children of One Suleiman (the original tenant) and current manager of the farmland.
The appellant through his counsel – Dr. E. K. Adetila raised two issues for determination which are;
(a) Whether or not the lower court was right when it held that an order of forfeiture cannot be maintained against the Respondent when his Vendors were not sued or joined in the action.
(b) Whether or not the lower court was right when despite the unresolved dispute between the parties regarding the royalty payable nevertheless ordered that the Respondent pay one keg of palm oil as tribute to the Appellant and continue to remain on the land as customary tenant of the Appellant.
The respondent’s in his brief by Opeyemi and Ogunremi submitted that the failure of the Plaintiff/Appellant to add necessary and proper parties who are vendors/sellers is fatal to their case before the court. He finally submitted that the trial court properly evaluated the evidence at the trial before coming to conclusion.
Delivering the lead judgement on 30th April, 2024, at
the Ise Customary Court, Justice Adesoji Adegboye of the Customary Court of Appeal, Ado-Ekiti, resolved the issue in favour of the Appellant.
The Judge averred that it was not duty of the trial court to impose royalty to the appellant in its verdict. He also ordered that all necessary parties particularly the children/heirs or Suleiman who sold the farm or the produce on the farm to the Respondent should be joined as necessary parties to the suit.
Justice Adegboye said; ‘From the definition and point of view of the Apex Court I am persuaded and I so hold that the issue of royalty cannot be resolved without the involvement of the original tenants, the heirs of late Suleiman and the vendor. The failure to join this necessary party is fatal to the resolution of the quantum of royalty to be paid by the Respondent. I hasten to add also that the fixing of royalty in a customary tenancy is the function of the Landlord, the Landlord is to fix the royalty in agreement with the tenant. I am fully persuaded and I hold that it is not the duty of the trial court to impose royalty payable in customary tenancy relationship as in the instant case. The decision of the trial court in arbitrarily imposing one keg of palm oil as payable royalty to the Appellant has indeed breached one of the concepts of ownership right of the Appellant of determining the usage of his farmland.
‘From the foregoing’s, the lower court erred by making that consequential order. This issue is resolved in favour of the Appellant.
‘On the whole, and in the interest of fair hearing, and for justice to be seen to have been done in this matter, this court hereby order that all necessary parties particularly the children/heirs or Suleiman who sold the farm or the produce on the farm to the Respondent should be joined as necessary parties to the suit.’
According to His Lordship, since the panel at Ise Customary Court is a new one, the matter shall be referred to the Customary Court Ise-Ekiti for retrial.
The lead judgment was supported by other members of the panel – President of the Customary Court of Appeal, Ado-Ekiti, Honourable Justice Monisola Abodunde, and Justice Olufolakemi Ogundele.
