Alfa Salawu Akano V. Amusa Adefabi (2003)

LawGlobal-Hub Lead Judgment Report

MURITALA AREMU OKUNOLA, J.C.A. 

This is an appeal against the judgment of the High Court of Justice, Oyo, Oyo State of Nigeria presided over by T. A. A. Ayorinde, J. and delivered on 31st January, 1991. This appeal originated from Grade ‘C’ Customary Court, No.1, Iseyin, Oyo State with the plaintiff/respondent’s claim in the lower court running as follows:
“The plaintiff’s claim is for an order of this Honourable Court ejecting the defendant from all that piece or parcel of land lying, situate and being between Abidogun compound and Kangunen compound at Okeyin quarters in Iseyin town which parcel of land measures 20 feet by 100 feet in dimension and which is bounded on its other sides by Asani Adio’s house and Aresetagbagi compound of Okeeyin, Iseyin and which parcel of land is about N200 in value and which is the property of Abidogun family of Iseyin and which is now being occupied by the defendant. The defendant has refused to quit the said piece of land despite persistent demand by the plaintiff that he should do so”. (See page 4 of the records of appeal)

Whilst the matter was pending in court, the defendant/appellant’s counsel wrote to the Registrar Grade ‘C’ Customary Court, Iseyin asking the court to strike out the case as it is an abuse of the court’s process, a similar case suit No. 15/68 in respect of the same land and between the same parties having been instituted by the plaintiff/respondent and won but now subject of an appeal.

The letter is contained on pages 7 and 8 of the records. The Customary Court agreed with the defendant/appellant that there was a judgment in suit No. 15/68 but refused to honour the letter on the ground that there was no evidence that an appeal was pending. (See page 5 of the records.) This ruling is contained on pages 5 and 6 of the records.

Dissatisfied with this ruling, the defendant/appellant appealed to the Chief Magistrate Court, Oyo which struck out the appeal on the ground that the defendant/appellant did not conform strictly with Form F(i) being used in the Customary Courts and that the records of evidence and judgment in suit No. 15/68 were never produced.

The court thereby struck out the appeal.

Aggrieved by this decision, the defendant/appellant further appealed to the High Court, Oyo which dismissed the appeal on one of the grounds which he has allowed in the appeal. Besides, the learned Judge refused to take cognisance of one of the grounds of appeal even though it was argued.

Dissatisfied with this judgment, the defendant/appellant (hereinafter referred to as the appellant) appealed to this Honourable Court on five grounds. From the five grounds of appeal, the appellant has formulated the following issues for determination in this appeal viz:
“I. Whether the learned Judge can use the ground of appeal which he has allowed in his judgment to dismiss the appeal.

2. Whether it is proper for the Judge to refuse to make a finding on all the issues raised in the appeal and yet proceed to dismiss the appeal.

3. Whether it was proper for the learned Judge to decide on issues not raised on appeal.”

The respondent also formulated three issues from the grounds which but for style used agree in substance with the above issues formulated by the appellant. These are:
“(i) Whether the learned appellate Judge decided the appeal on issues not raised in the appeal.
(ii) Whether the learned appellate Judge refused to make a finding on all issues raised in the appeal.
(iii) Whether the learned appellate Judge was wrong in holding that the learned Chief Magistrate could not be said to have travelled outside the grounds of appeal to come to a decision in the appeal on issues that have not been lawfully canvassed before him”.

Both learned counsels to the parties filed their briefs of argument on behalf of their respective clients. At the hearing of this appeal, learned counsel to the appellant Mr. A. B. Adeyinka adopted and relied on the appellant’s brief filed herein on 6/12/01 and urged the court to allow the appeal. By way of reply, learned counsel to the respondent Mr. A. O. Jaiyeola also adopted and relied on the respondent’s brief filed herein on 4/6/02 and urged the court to dismiss the appeal. On being asked whether he had anything to add learned counsel to the appellant Mr. Adeyinka replied in the negative.

I have considered the submissions of both learned counsel to the parties highlighted above vis-a -vis the records and the prevailing law. In my view, their argument boil down to the three principal Issues viz:
“1. Whether the learned Judge can use the ground of appeal which he has allowed in his judgment to dismiss the appeal.

2. Whether the learned appellate Judge refused to make a finding on all the issues raised in the appeal and yet proceed to dismiss the appeal.