Chief Israel Opawole V. Lawal Tunbi (2003)

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A. 

This is an appeal against the judgment of the Kwara State High Court of Justice in appeal No. KWS/8A/85 delivered on Tuesday, the 12th day of November, 1985 Coram T.A. Oyeyipo CJ; D.A, Adeniyi J and J.A. Fabiyi J. (as he then was), in which it set aside the judgment of the Upper Area Court I, Ilorin, and restored the judgment of the trial Area Court Grade II Erin Ile which dismissed the claim.

This case has a protracted history starting from sometime in 1956, in the Emir’s court Ilorin. It involves a dispute over the ownership of a piece or parcel of land situate in Kwara State. In 1956, the present parties predecessors-in-title contested the ownership of the land in dispute and the Emir’s court found that the land belonged to one Salami Olokoba, the predecessor in-title to the appellant (in this appeal). Exhibit D is the proceedings and judgment of that court.

Sometime in 1978, the respondent sued the appellant over the same piece of land in the High Court and Upper Area Court in Ilorin but upon the production of exhibit D both cases were struck out.
Meanwhile, the respondent broke and entered the land in dispute and commenced constructing buildings thereon as a result of which the appellant sued the respondent in Ibolo Area Court Grade II, Erin Ile, Kwara State, stating:
“I sued the defendant for entering into my land plot illegally without my consent which land is my forefather’s property owned by us for the past one hundred and sixty years back of which my elder brother Salami, Olorukoba Opawoye fought on this land with the defendant’s older brother Esa Gbile during the year 1956 and the land was awarded to my elder brother in the Emir’s Court Ilorin and the defendant’s family was asked not to tamper with the land again. I want the defendant to quit the land plot forthwith and that the building on the land by the defendant be removed forth-with.”

See pages 43 – 44 of vol, 1 of the record. The respondent denied the title of the appellant and after hearing the witnesses in the case and visiting the locus inquo the trial Area Court, in a reserved judgment refused to enforce the judgment of 1956 by ejecting the respondent from the land in dispute. The appellant was dissatisfied with that judgment so he appealed to the Upper Area Court, Ilorin which, after hearing the appeal allowed same and ordered the respondent to leave the land and also “remove his building from the land” within a stipulated time.

The respondent was dissatisfied with that judgment and therefore appealed to the Kwara State, High Court of Justice which heard same and in the judgment of November 1985 ordered as follows:
“In the result, we allow this appeal, set aside the decision of the Upper Area Court 1, Ilorin and affirm that of Ibolo Area Court Grade 2, which dismissed the claim of plaintiff/respondent”

The appellant was not happy with that decision so he further appealed to the Court of Appeal, Kaduna which allowed the appeal, set aside the judgment of the High Court, Ilorin and restored the decision of the Upper Area Court 1, Ilorin. The respondent felt aggrieved and further appealed to the Supreme Court which, in its judgment delivered in appeal No. Sc. 92/1993 on the 14th day of January, 2000, allowed the appeal, set aside the decision of the Court of Appeal, Kaduna delivered on 23/7/93 and ordered a rehearing of the appeal before a different panel of the Court of Appeal using the respondent’s brief dated 5/3/92 or as may be amended. So this appeal is the re-hearing as ordered by the Supreme Court. In arguing the appeal on the 1st day of April, 2003, learned counsel for the appellant, Raifu Ibrahim Esq., referred the court to pages 9-23 of vol, 2 of the record containing the appellant’s brief of argument filed on 12/12/90 and adopted and relied on same in argument and urged the court to allow the appeal.

On his part, learned counsel for the respondent Roland Otaru Esq., leading Miss. Sumbo Ijayola referred the court to respondent’s brief of argument dated 3/2/92 at pages 48-53 of vol. 2 of the record and adopted same in argument. He then urged the court to dismiss the appeal.

In the appellant’s brief of argument, the following issues have been formulated for the determination of the appeal. These are:
“(1) Whether the procedure adopted by the appellant in seeking to enforce the judgment in exhibit before the Ibolo Area Court II was not right when there was no specific procedure stipulated by the provisions of Order 17 of the Area Court Civil Procedure Rules 1971.

(2) Whether the High Court on appeal Ilorin was right to have held that the doctrine of estoppel res-judiata did not apply in this case inspite of the finding of the Ibolo Area Court II and Upper Area Court 1 Ilorin, that the respondent was the brother of Esa, and that the judgment was in respect of the same land in respect of which there was no appeal.

(3) Whether the respondent who claims his title to the land in dispute through Esa against whom the judgment contained in exhibit “D” was given, was not bound by the term of the said judgment.

(4) Whether the High Court on appeal was right to have set aside the judgment of the Upper Area Court Ilorin on technical grounds inspite of the provisions of S. 61 of the Area Court’s Edict.

(5) Whether the High Court of Appeal, Ilorin was not wrong to have rejected exhibit “D” when it was admitted by the lower court having satisfied itself that it was genuine and the where about of the original certified true copy having been duly explained by the appellant.

(6) Whether the High Court of Justice Ilorin in its appellate jurisdiction had jurisdiction to determine the admission of exhibit “D” (photocopy of certified true copy) when the issue was not raised before the two lower courts, and when no leave of the High Court was obtained before the said issue was raised.”