Madam Bisola Adesanya V. Madam Modinat Alubata (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

  On the 25th February, 2008; the Ogun State High Court of Justice holden at Sagamu Coram Hon. Justice O. O. Majekodunmi (J) delivered a judgment against the Appellant. (Pages 43-47 of the records for this appeal). The Appellant was the Plaintiff at the trial Customary Court which upheld her claim. The Respondent appealed successfully to the High Court. This appeal challenges the decision of the High Court.

The parties shall hereafter be referred to simply as Appellant and Respondent respectively.

The High Court sat in its appellate jurisdiction over the judgment of the Customary Court Grade 1, Ikenne, Ogun State”

The brief facts of this case are that, the Appellant who was Plaintiff at the Customary Court Grade 1, Ikenne, Ogun State instituted this suit in a representative capacity for and on behalf of the Layi Akinola Family against the Respondent claiming the following reliefs (page 6 of the record):-

(1) A Declaration that under Natural Law and Custom of Ikenne Remo, Ogun State of Nigeria, the parcel of land upon which the defendant erected the wooden kiosk is part of the Plaintiff’s Landed property situate, lying and being at No. 18, Igodo Street, Ikenne Remo, Ogun State. The value of the land is N4,000.

(2) The sum of N3,000.00 as general and special damages for the trespass being committed by the Defendant who has unlawfully and illegally installed her wooden kiosk on the land inspite of the protest of and complaints by the Plaintiff and her family members;

(3) The Plaintiff is also seeking for an order of Perpetual Injunction restraining the Defendant, his servants, agents, privies or anyone claiming through her from further acts of trespass on the land.

At the Customary Court, witnesses were called by both parties in support of their respective cases. At the end of the trial, the Hon. President and members of the Customary Court visited the locus in quo and delivered a judgment on the 10th November, 2005 granting all the reliefs sought by the Appellant (as Plaintiff) (pages 23-33 of the record).

Dissatisfied by the Customary Court decision, the Respondent filed a notice of appeal to the High Court of Ogun State; Sagamu Judicial Division (pages 34-36 of the record)” The Appellant then filed a motion on notice dated 17th September, 2007 to dismissed the said appeal for want of diligent prosecution (pages 41-42 of the record). The motion was dismissed and the High court proceeded to hear the said appeal and dismissed same. The decision of the Customary Court was set aside.

Taken aback by the decision of the High Court, the Appellant filed a notice of appeal dated 21st May, 2008 and filed on the same day in which five grounds of appeal were raised. (Pages 48-50 of the record) On the 13th February, 2014, when this appeal was called up for hearing, the learned Counsel for the Appellant, Mathew Ariyo Adebayo Esq. drew the attention of the court to the fact that no Respondent brief had been filed and that on the 14th day of June, 2012 this court granted an Order for the appeal to be heard on the Appellant’s brief alone. The Court was also reminded of its order made for the transmission of a certified true copy of an Additional Record of Proceedings which was filed on the 22nd October, 2009 but deemed filed on the 9th February, 2010.

The appeal was therefore heard on the Appellant’s brief alone in accordance with Order 18 Rule 10 of the Rules of this court, 2011.

The learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument dated and filed the 17th June, 2009. The Appellant raised four issues for the determination of this court as follows:-

1. Whether the failure of the Respondent to fulfill the conditions precedent to the Appeal did not deprive the Appellate High Court (the lower court) of the jurisdiction to hear the Appeal. (This was distilled from Ground 2 of the Notice of Appeal)
2. Whether the hearing of the Appeal in the absence of the Appellant and her Counsel at the same sitting on 14/11/2007 immediately following the striking out of the Appellant’s Motion on Notice which sought to strike out the Appeal for lack of diligent prosecution was not in breach of the Appellant’s constitutional right to fair hearing. (This was distilled from Ground 1 of the Notice of Appeal)
3. Whether the attempt by the learned Appellate Judge to re-evaluate witnesses evidence was necessary when the trial Court’s evaluation of the evidence and the decisions arrived at thereby are clear and are not perverse. (This was distilled from Grounds 3 & 4 of the Notice of Appeal)
4. Whether having successfully proved trespass against the Respondent the Appellant was not ipso facto entitled to award of damages, (This was distilled from Ground 5 of the Notice of Appeal)

In determining this appeal, issues 1 and 2 will be taken together while issues 3 and 4 separately, if necessary.