Alhaja Raliat Oyenike Sanni V. Alhaji Iyanda Shuaib Lateju & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Lead Ruling)

This is an Application brought by way of Motion on Notice pursuant to Sections 15 and 24(4) of the Court of Appeal Act, 2004; Order 7 Rules 1 and 10 and Order 8 Rule 6 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Honourable Court. The Motion dated and filed on the 4th day of January, 2010 prays for the following reliefs:-

1. AN ORDER of the Honourable Court extending the time within which the 1st Respondent/Applicant may Cross-Appeal and file his Notice of Cross-Appeal against the decision or the High Court of Kwara state in suit No. KWS/301/2011 Between Alhaji Iyanda Shuaib Lateju (Magaji Abudu) for himself and on Behalf of all members of Magaji Abudu Family of Ilorin v. Alhaja Raliat Oyenike Sanni & 2 Ors., now pending as Appeal No. CA/IL/55/2011 before this Honourable Court.
2. AN ORDER of the Honourable Court deeming the 1st Respondent/ Applicant’s Notice of Cross-Appeal dated and filed at the Registry of the Lower Court on 29th December, 2011 and served on parties as properly filed and served.
3. AN ORDER of the Honourable Court extending the time within which the 1st Respondent/Applicant may compile and transmit Additional Records of Appeal in this Appeal.
4. AN ORDER of the Honourable Court deeming the Additional Records of Appeal already compiled and transmitted to this Honourable court on 29th December, 2011 in this appeal as properly compiled and transmitted.
5. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The 1st Respondent/Applicant predicated the Application on the following Grounds:-

1. The 1st Respondent/Applicant is also dissatisfied with some parts of the decision of the High Court Kwara State appealed against in this appeal.
2. The learned Counsel representing the 1st Respondent/Applicant mistakenly adopted the process Respondent’s Notice of Intention in contending the part of the decision of the Lower Court the applicant is dissatisfied with.
3. On 1st November, 2011, the Motion on Notice filed by Counsel to the Applicant seeking extension of time to file 1st Respondent’s Notice was withdrawn and struck out on the ground that the counsel made a mistake in adopting that process as against Notice of Cross-Appeal.
4. The cost of N5,000.00 (Five Thousand Naira) awarded to the Appellant against the Applicant in favour of the Appellant/Respondent has duly been paid.
5. The proper process by which the 1st Respondent/Applicant can contend the part of the decision of the Lower Court he is dissatisfied with is the use of Notice of Cross-Appeal.
6. The time within which the 1st Respondent/Applicant can Cross-Appeal against the decision of the lower Court and/or file his Notice of Cross-Appeal against same has lapsed.
7. This Honourable Court has power to extend time for the 1st Respondent/Appellant to Cross-Appeal and/or file his Notice of Cross-Appeal against the decision of the Lower Court.
8. The 1st Respondent/Applicant has already filed and served his Notice of Cross-Appeal and this Honourable Court has power to deem the Notice of Cross-Appeal already filed and served as properly filed and served.
9. Upon filing or deeming as properly filed and served of his Notice of Cross-Appeal, the Respondent/Applicant has a duty to compile and transmit his Notice of Cross-Appeal as Additional Records of Appeal in this case.
10. The 1st Respondent/Applicant has already compiled and transmitted Additional Records of Appeal in this appeal.
11. This Honourable Court has power to deem the Additional Records of Appeal already compiled and transmitted by the 1st Respondent/Applicant in this appeal as properly compiled and transmitted.
12. The Appellant/Respondent’s Brief of Argument is not yet properly before the Court.
13. Time is not yet ripe for the 1st Respondent/Applicant to file Respondent’s Brief of Argument in which he can incorporate arguments in respect of his Cross-Appeal.
14. A grant of this Application would not prejudice any of the parties while the best interest of justice would be served thereof.
15. The 1st Respondent/Applicant’s Cross-Appeal is necessary for this Honourable Court to completely hear and determine all the issues that arose against the decision of the Lower Court.

In support of the Application, the Applicant through Hassain Busari, the Litigation Officer in the Chambers of Ishola & Sanni Consort (Al-Barka Chambers), the Law Firm representing the 1st Respondent in this Appeal; deposed to a five paragraphed Affidavit without any annexed Exhibits documentary or otherwise. The Affidavit is at best a rehash of the Grounds for the Application.

On the 6th day of January, 2012 when the Application was to be heard, the Appellant/Respondent raised a Preliminary/Objection against the Application for want of competence. Thereon, the Court having considered the contentious nature thereof ordered parties to file their respective Written Addresses to articulate their respective arguments for and against the Application. Consequently, the Appellant/Objector in her Address dated 10th day of March, 2012 and filed on the 12th of March, 2012 by L.L. Akanbi Esq. of Lateef Fagbemi SAN & Co. who settled the Address listed four (4) Grounds for the Preliminary Objection in paragraph 3.00 of his undated Address thus:-

“GROUNDS OF THE PRELIMINARY OBJECTION”

1. The application failed to (sic) Exhibited the relevant materials which will enable the Court to determine the propriety or otherwise of the application.
2. It is mandatory for the applicant to seek for the leave of the Court in his application or what is known as the trinity prayers.
3. The Grounds of Appeal as contained in his proposed additional record are not substantial and recondite.
4. The application is an abuse of Court process.”

He then formulated a sole Issue couched inter alia:- ” Whether the applicant’s application as presently constituted is not incompetent?”

The 1st Respondent/Applicant on the other hand in the Address settled by A.S. Ishola Esq. dated and filed on the 16th March, 2012 also distilled a single Issue for determination couched thus:-

“Whether from the contents of the Grounds of Appeal contained in the already filed 1st Respondent’s Notice of Appeal, the 1st Respondent ought to have brought the application by way of the trinity prayers”.

Upon receipt of the 1st Respondent/Applicant’s Written Address, the Appellant filed on 20/3/12 a Reply Address but dated 19th March, 2012.

Before going into the arguments and resolution of the issues formulated by the respective Learned Counsel for the parties, permit me to recount in brief the facts leading to this Application. The 1st Respondent/Applicant had in the Lower Court as Claimant, filed a suit seeking for declarations of title to land measuring 5.12 hectares situate at Agbabiaka Area, Ilorin, Kwara State, having been in possession of same from time immemorial in an undisturbed manner; that the right of the Claimant as stated above cannot be defeated merely by the subsequent issuance of Certificate of Occupancy No. 8183 to the 1st Defendant by the Kwara State Government represented by the 2nd and 3rd Defendants, due process to validate the issuance having not been followed; that the issuance of the Certificate of Occupancy in so far as it covers the land disputed, is wrongful, illegal, unconstitutional and a violation of the Land Use Act. He also prayed for orders setting aside the said Certificate of Occupancy upon the above stated grounds in that the Land belongs originally to Claimant and that the issuance of the Certificate of Occupancy is null and void, perpetual injunction restraining the 1st Defendant/heirs, assigns, privies and whoever claiming through her from interfering with the peaceful possession and ownership of the land; Award of N500,000.00 (Five Hundred Thousand Naira) damages against the 1st Respondent for trespass on the land in question amongst other reliefs.

Issues were joined by the 1st Defendant/Respondent/Applicant by filing her Statement of Defence dated 21st December, 2010, same day where in paragraphs 29-30 thereof, she pleaded that, she shall contend on or before the trial of the suit that the Honourable Court lacked the jurisdiction to entertain the suit because the action was statute barred, by virtue of Limitation Law of Kwara State, and that the 1st Defendant shall contend that the Claimant’s suit is caught by issue Estoppel. The particulars of contentions were duly supplied.

Thereafter in a Motion dated 29th March, 2011, the 1st Defendant (now 1st Respondent/Applicant) prayed the Court to dismiss the suit for being an abuse of Court process on the Grounds that:-

i. The claimant’s suit is an abuse of court process.