Alhaja Raliat Oyenike Sanni V. Alh. Iyanda S. Olateju & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

This appeal emanates from the Ruling of the High Court of Kwara State delivered by His Lordship Mahmud Abdul-Gafar,J on 3rd June 2011 wherein the Appellant’s application seeking for the dismissal of the 1st Respondent’s action for being incompetent was struck out.

The facts that led to this appeal are that the 4th Defendant at the lower Court Mohammed O.S. Olateju had previously filed an action No. KWS/150/2003 against the Appellant seeking for some declaratory and injunctive reliefs. After the suit was seriously contested before Afolayan, J and at the end of the case, the learned trial Judge made findings on all the issues canvassed before him holding that the Magaji Abudu larger family, to which the 1st Respondent herein belongs, had divested their interest in the land subject matter of this appeal by collecting compensation on the 22nd October, 1993 for and on behalf of the entire larger Magaji Abudu family from the Appellant herein through Kwara State Government by their 9th Magaji who was the immediate predecessor in office to the 1st Respondent herein.

That decision was affirmed by this Court in Appeal No. CA/IL/87/2006-between: Mohammed O. S. Olateju v. Alh. Raliat Oyenike Sanni, to the effect that, the late 9th Magaji of the 1st Respondent’s family having collected compensation on behalf of the Magaji Abudu larger family from the Appellant herein through the Kwara State Government, the family had divested their interest in the land subject matter of this appeal.

It is pertinent that, the land on which the learned trial Judge in Suit No. KWS/150/2003 found that Magaji Abudu family i.e the 1st Respondent’s family had collected compensation is the same parcel of land over which the 1st Respondent herein is seeking declaration of title.

The 1st Respondent herein is part and parcel and also, privy of Magaji Abudu family, which the learned trial Judge in Suit No. KWS/150/2003 found to have collected compensation through their 9th Magaji from the Appellant. After the decision of the learned trial Judge in KWS/150/2003, the Plaintiff therein being dissatisfied with the decision of the trial Judge appealed to this Court, which the Court determined in Appeal No. CA/IL/87/2006.

The 1st Respondent herein, after the decision of this Court in Appeal No. CA/IL/87/2011, which settled the issue of ownership of the land subject-matter of this appeal, subsequently filed Suit No. KWS/301/2010, in an attempt to re-litigate on issues already decided at the lower Court and this Court in Suit No. KWS/150/2003 and Appeal No. CA/IL/87/2006 respectively (see pages 191-328 and pages 91-151 of the Record of appeal).

These facts prompted the Appellant herein to challenge the competence of the Suit No. KWS/301/2010 the subject-matter of this appeal, by filing an application before the lower Court, contending that the suit is incompetent on the grounds of estoppels per rem judicata and that the claim is statute barred.

The 1st Respondent filed a Counter-Affidavit and challenged the competence of exhibit C, as being the judgment of Afolayan J. delivered in Suit No. KWS/150/2003, on the ground that there was no heading, names of the parties and signature of the Judge.

The Appellant in response sought for and obtained Certified True Copy of the complete record which contained the judgment of Afolayan J and attached same as exhibit F to her reply to Counter-Affidavit to demonstrate that the said exhibit “F” contained judgment of the lower Court and same was used by this Court in Appeal No. CA/IL/87/2006 to arrive at a decision.

Rather than the learned trial Judge considering and giving effect to exhibit “F” being a record of proceedings of the same Court in KWS/150/2003 containing the judgment of the lower Court, the learned trial Judge did not take cognizance of the said “exhibit F” used by this Court in Appeal No. CA/IL/87/2006 to arrive at the decision overlooked exhibit F as there is nowhere in the ruling of the learned trail Judge where reference was made to exhibit F before arriving at a decision subject of this appeal. Appellant contended that the Judge in not considering exhibit F has occasioned a grave miscarriage of justice. Hence this appeal brought by a Notice of Appeal predicated upon three grounds from which the following issues for determination were distilled:

1. Whether there was no reliable judgment placed before the trial Court to enable the Court reach any conclusion on rem judicata and/or issue estoppel? (Ground 2).
2. Whether the trial Court had jurisdiction to entertain the suit before the Court despite the clear and undisputed evidence showing that the suit is caught by estoppels-per rem judicata and/or issue estoppels? (Ground 2).
3. Whether the Plaintiff’s suit is not statute barred? (Ground 3).

Before the hearing of the appeal the 1st Respondent raised and argued a Preliminary Objection predicated upon the following five grounds:

1. The Notice of Appeal and or the Grounds of facts and or of mixed law and fact and the Appellant did not seek nor obtain the requisite leave of the lower Court or of this Honourable Court before filling the Notice of Appeal on 13th June, 2011, as replicated on pages 342-345 of the Record, contrary to Section 242 of the Constitution (as amended) since the Ruling was interlocutory in nature.
2. Ground 1 of the Notice of Appeal is incompetent for not arising from the decision of the lower court.
3. Issue No.1 formulated and related to Ground 2 of the Notice of Appeal by the Appellant, together with the arguments canvassed on the issue in the Appellant’s Brief of Argument, are at variance with one another.
4. Issue No. 3 as formulated by the Appellant is at variance with Ground 3 whence the issue was distilled and the issue as formulated did not arise from the decisions expressly reached by the lower Court and thereby not within the jurisdiction of this Honourable Court to determine same.
5. Relief 2 prayed for by the Appellant in the Notice of appeal are not grantable by this Honourable Court as granting same would violate right to fair hearing of the 1st Respondent.

On ground one of the Preliminary Objection, the learned counsel for the 1st Respondent contended that the Notice of Appeal is grossly incompetent, same having being filed in violation of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This is because the Grounds of appeal in the Notice of Appeal are in the nature of grounds of facts. The appeal being against an interlocutory decision of the lower Court, the Appellant requires leave as a prerequisite to filing Notice of Appeal. See Ogolo v. Fubara (2003) 11 NWLR (Pt 831) 231 at 264 paras F-G.

See Kwara State Water Corporation v AIC (Nig.) Ltd (2009) All FWLR (Pt 485) 1738 at 1757, paras D-F; B.A.S.F. (Nig) Ltd v. Faith Ent. Ltd (2010) All FWLR (Pt.518) 840 at 862-863, paras H; A-B, where the Supreme Court per Adekeye, JSC gives a detailed guide on grounds of law and of facts simpliciter and of mixed law and facts, as follows: