Bello Akanbi & Ors. V. Mamudu Alao & Anor (1989)

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CRAIG, J.S.C.

This is an appeal from a Ruling of the Court of Appeal, Kaduna, given on the 16th September, 1986, and the two main issues which arise for determination are:

(a) Whether the lower Court had jurisdiction under the Nigerian Constitution to grant the respondents leave to adduce fresh evidence and if it did,

(b) Whether the power to grant such leave had been exercised judiciously.

When this appeal came up for hearing on the 6th of February, 1989, the Court, after hearing oral arguments from Counsel, allowed the appeal and indicated that it would give reasons fordoing so today 5th May, 1989. I now give my reasons for agreeing that the appeal should be allowed.

The facts leading to the ruling arose from a judgment of the Ilorin High Court where the plaintiffs (appellants herein) had sued the defendants in Suit No.KWS/52/79 for:

“1. N10,000.00 (Ten Thousand Naira) being special and general damages for trespass committed by the defendant on the plaintiffs land situate at Jaju Gbagede, that is, from Budo Nuhu down to Ogbomosho boundary which has earlier been awarded to the plaintiff by the High Court of Justice, Ilorin in Appeal No.KWS/12A/74 and confirmed by the Supreme Court in Suit No.SC.480/1975.

2. An injunction restraining the defendants, their servants or agents from further trespass on the said land.”

In that court, pleadings were ordered and exchanged and in their Statement of Claim the plaintiffs pleaded that they became entitled to the land in dispute by virtue of the judgment of the Supreme Court in Suit No.SC.480/1975 between the same parties. The relevant portion of those pleadings were as follows:

“1. The first, second and fourth plaintiffs are and were at all material times the customary owners of a parcel of land situate at Jaju Gbagede, that is, from Budo Nuhu down to Ogbomosho boundary on Ogbomoso Road, Ilorin, Kwara State of Nigeria.

4. The first defendant is a son to one Ajani Bale Jaju Gbagede, now deceased.
5. The said Ajani Bale Jaju Gbagede was tenant to the first, second and fourth plaintiffs on the land mentioned in paragraph 1 above.
6. The said Ajani Gbagede used to pay tributes and/or royalties to the plaintiffs in return for his tenancy on the land.
7. Suddenly, the said Ajani Bale Jaju stopped paying tributes and/or royalties to the plaintiffs.
8. As a result of the said Ajani Bale Jaju’s refusal to pay tributes to the plaintiffs, the first plaintiff instituted an action against him in the Upper Area Court, Ilorin, in case No.UACI/CVF.20/73, claiming his (plaintiffs) land from him.
9. The first defendant appeared for and represented the said Bale Jaju while the 2nd plaintiff represented the first plaintiff in the suit.
10. On 15th May, 1974, the Upper Area Court gave judgment in favour of the first plaintiff.
11. As a result of the judgment referred to in paragraph 10, the said Ajani Jaju appealed to the High Court, Ilorin.
12. On 14th February, 1975, the appellate session of the Ilorin High Court, presided over by Justices J.M. Adesiyun, S. Kawu and Alhaji A. Aliyu, in suit No.KWS/12A/74 dismissed the appeal and confirmed the judgment of the Upper Area Court in favour of the plaintiffs.
13. Being also dissatisfied with the decision of the High Court, the said Ajani Bale Jaju appealed to the Supreme Court of Nigeria.
14. On 20th June, 1978, the Supreme Court sitting at Kaduna and presided over by the Chief Justice of Nigeria, Sir D.A.R. Alexander, in suit No.SC.480/ 1975 dismissed the appeal and entered judgment for the first plaintiff.
15. On or about the month of August, 1978, the second defendant who claimed to be acting as the caretaker or tenant of the first defendant wrongfully broke and entered the land referred to in paragraph 1 above, particularly the part of the land that lie between Odo-Omo and Odo-Eleran.
16. In the process of the first defendant’s trespass on the land, he plucked several bags of sheanuts and locust beans, thereby depriving the plaintiffs of their means of livelihood.
17. The first defendant, on the instruction of the second defendant still continues with his illegal occupation, and plucking of economic trees’ fruits on the land despite persistent warning jointly and severally from the plaintiffs.”

In their reply the defendants denied the trespass and pleaded further as follows:

“(20) The defendants say that the part of the land entered into by the 2nd defendant is called Odo Eleran, and that Odo Eleran has never been part of the land adjudicated upon in suits No. UACI/CVP.20/73, KWS/12A/74 and SC.480/1975

(21) The defendants further aver that when the 2nd defendant was farming on ado Eleran land the plaintiffs sued the defendant and in appeal No.KWS/21A/1976 decided by the Ilorin High Court of Appeal on 23rd May, 1977 the High Court decided that the Odo Eleran land did not form part of the land adjudicated upon in Appeal No.KWS/12A/74 and decided by the Supreme Court in SC.480/1975.

(22) A retrial was ordered by the High Court in Appeal No.KWS/21A/1976 and the retrial was conducted by the Upper Area Court, Ilorin, which visited the locus in quo and found as a fact that Odo Eleran entered by the 2nd defendant did not form part of the land adjudicated upon in KWS/12A174 decided by the Supreme Court in S.C.480/1975.

(23) When the retrial was in favour of the present defendant the present plaintiffs appealed to the High Court in appeal No.KWS/10A/78 and in this appeal again, the High Court decided that Odo Eleran is not part of the land adjudicated upon in KWS/12A/74 and S.C.480/1975.