Joseph Olusanmi V. Dayo Henry Oshasona (1992)

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E. OGUNDARE, J.S.C. 

The trial of the action leading to this appeal commenced in the Divisional Area Court Grade 1 holding at Kabba then in Kwara State. The matter had been remitted by the Upper Area Court Lokoja to the Divisional Area Court Kabba for retrial, following a successful appeal by the defendant (now appellant) against the judgment of the Area Court that first tried the action.

At the retrial before the Divisional Grade 1 Court evidence was led on both sides and the trial Court inspected the land in dispute. In a subsequent judgment it found for the plaintiff and awarded the land in dispute to him. The defendants being dissatisfied with that judgment appealed once again to the Upper Area Court Ilorin which Court allowed the appeal, quashed the decision of the trial Divisional Area Court, Kabba and ordered yet another rehearing before the Omu-Aran Upper Area Court, all in the then Kwara State. The plaintiff being aggrieved by this decision, appealed to the High Court of Kwara State sitting in its appellate jurisdiction at Ilorin.

That Court, after listening to arguments from learned counsel for the parties, allowed the plaintiff’s appeal, set aside the judgment of the Upper Area Court Ilorin and restored the judgment of the Divisional Area Court Grade 1 Kabba. The defendant was displeased with the High Court’s judgment and appealed to the Court of Appeal sitting in Kaduna.

That Court [Maidama J.C.A, Akpata and Babalakin, JJ.C.A, (as they were then)] dismissed the appeal and affirmed the judgment of the appellate High Court. The defendant, with leave of this Court granted on 17th April, 1989, has now further appealed to this Court upon 4 original and 3 additional grounds of appeal. And in accordance with the rules of this Court learned counsel for the parties filed and exchanged their respective briefs of argument. A reply brief was also filed on behalf of the appellant.

In the appellant’s brief Usoro Esq. of counsel for the appellant, abandoned the 4 original grounds and relied on the 3 additional grounds of appeal which, without their particulars, read as follows:-

“Ground 5

The Court of Appeal erred and was misdirected both on the facts and in law in holding that ‘the land in dispute is known to both the parties and the Court’ and ‘is ascertainable.’

Ground 6

The Court of Appeal erred and was misdirected both in law and on the facts when it held that the inspection of the locus in quo by the trial Area Court was properly conducted and that the trial Area Court was right in relying on the ‘evidence of 18 men found on the land in dispute.’

Ground 7

The Court of Appeal erred and was misdirected both on the facts and in law in holding that ‘even if the reference to the evidence of the 18 men is expunged from the record, there is still ample evidence to find in favour of the Respondent.’”

In the said brief learned counsel formulated three questions as calling for determination in the appeal, that is to say:

“1. Is it possible to determine with certainty, based on the available evidence, the full identity including in particular the boundaries, size and extent of the land in dispute