Alhaji Yakeen Owonikoko & Ors V. Alhaji Alimi Arowosaiye (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The parties in this appeal were before Elelu-Habeeb J. of the Kwara State High Court of Justice sitting at Offa where the appellants as plaintiffs claimed in their writ of summons the following reliefs –

“(a) Declaration that the plaintiffs are the persons entitled to a customary/statutory Right of Occupancy over and above all that piece or parcel of land being, lying and situate at MAGBON AREA ERINILE, particularly the land called Am Family land.

(b) The sum of N2,000.00 being damages for trespass and waste committed on the land by the defendant.

(c) An Order of perpetual injunction restraining the defendant by himself, agents, servants, privies and others deriving title under him howsoever from disturbing trespassing, dealing with or in any other way tamper with the plaintiffs peaceable possession of the parcel of land.”

After the exchange of pleadings between the parties, the case went into full trial in the course of which the appellants called 6 witnesses while the respondent testified in his own defence and also called one other witness who testified for him. Learned counsel on both sides submitted written addresses to the trial court before the case was adjourned for judgment. In her judgment delivered on 21/12/93, the learned trial Judge without going into the merit of the case dismissed the claims of the appellants/plaintiffs in the following words –

“I therefore hold that I cannot entertain this action as a court of first instance because the matter had been adjudicated upon by the Ibolo Grade 1 Area Court and an appeal has been filed to the Upper Area Court, Ilorin in respect of the same matter.

Accordingly the claims of the plaintiffs are hereby dismissed in its entirety for constituting an abuse of court process.”

The appellants as plaintiffs who were not happy with this decision of the learned trial Judge decided to appeal against it by filing their Notice of Appeal containing 10 grounds of appeal. The grounds without their particulars are as follows:-

“1. The learned trial Judge erred in law by holding that Exhibit D1 constituted esptoppel per rem judicatam in the circumstances of this case and this led her to dismiss the case of the appellants and this has occasioned a grave miscarriage of justice against the plaintiffs/appellants.

2. The learned trial Judge erred in law when she held as follows:-

In essence therefore I cannot rule that the subject matter and the parties in Exhibit D1 and in the case at hand are not the same.

3. The learned trial Judge misdirected herself on the facts when she held as follows:-

‘I therefore hold that 1 cannot entertain this action as a court of first instance because the matter had been adjudicated upon by Ibolo Grade 1 Area Court and an appeal has been filed to the Upper Area Court, Ilorin in respect of the same matter.”

4. The learned trial Judge erred in law when she held that the present suit is an abuse of the process of the court and she thereby dismissed the entire suit of the appellants thereby shutting the gate of justice against the appellants forever.
5. The learned trial Judge erred in law by her total failure to consider and pronounce upon the merits of the case when from the evidence led by the appellants and their witnesses they are entitled to all the reliefs claimed.
6. The learned trial Judge erred in law by dismissing the claims of the plaintiffs in limine without considering at all or making findings on the merits of the claims as placed before her.
7. The learned trial Judge erred in law and caused a grave miscarriage of justice to the appellants when she suo motu without evidence led on the contents of Exh. D1 went to look at the contents and drew inferences therefrom when the respondents only dumped the document on the court and same was not read or taken as read at the trial.
8. The learned trial Judge erred in law when she held as follows:-

‘……….I have taken time to go through the record of proceedings in the Ibolo Grade I Area Court and the Notice’ of Appeal filed at the Upper Area Court, Ilorin (Exhibit D1 & D2 respectively).’

9. The learned trial Judge erred in law on the uses she made of Exhibit D1 when there was no evidence led on the contents of the said exhibit at the trial.
10. The decision is totally unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”

Although the learned counsel to the appellants in the appellants’ brief and oral argument before us had maintained that 9 grounds of appeal were filed by the appellants, it is quite clear from the grounds of appeal I have quoted above, that the appellants’ Notice of Appeal in fact contains 10 and not 9 grounds of appeal.