Alhaji Idris Alaya V. Engr. Adewumi Ademola Issac (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal is an offshoot of the judgment of the High Court of Kwara State sitting in Omu-Aran, Coram, Hon Justice Mahmud Abdulgafar, in suit No KWS/OM/64/2008 delivered on 19/10/2009 wherein it granted the claimant’s/respondent’s claims and dismissed the defendant’s/appellant’s counterclaim.

As can be gleaned from the processes filed, the facts of that case, which culminated into this appeal, are wendy. The subject-matter of the case, situated at Tanke Area, Ilorin Kwara state, had, between 1993 and 2007, witnessed the first tranch of court action/litigation which meandered from the High court of Kwara state to the Supreme Court. In that first case, one Pastor J. A. Akinduro claimed to be the owner of the said parcel of land. The Pastor, as a plaintiff, then instituted an action against the appellant, as a defendant, in the High court of Kwara State in which he claimed for declaration of title, injunction and damages over the said piece of land. The High Court awarded Judgment in favour of the plaintiff pastor. The present appellant appealed against that decision to this court, Kaduna Division, which upturned/reversed the judgment of the High court. The Pastor’s appeal to the Supreme Court was a stillborn in that the apex court affirmed the judgment of the Court of Appeal.

The appellant, armed with the judgment of the Supreme Court, took steps to enforce that decision by taking possession of the land. Meanwhile, the respondent claimed that he bought the land from the Pastor after he obtained judgment in the High court of Kwara state on 30/06/1993. It was at that juncture that, the respondent instituted the action in the lower court on 16/04/2008 and claimed declaratory and injunctive reliefs and damages against the appellant over the land. In a swift reaction to that suit, the appellant filed his statement of defence wherein he prayed the lower court to dismiss it as being unmeritorious. Also, the appellant incorporated a counter-claim in which he counter-claimed for damages for trespass and injunction against the respondent over the land. The respondent filed reply to the appellant’s statement of defence and counter-claim. Sequel to that, there were pre-trial proceedings as required by the Kwara State High Court (Civil Procedure) Rule, 2005 (hereinunder abridge to “the Rules”).

Thereafter, the case went into a full-scale trial. The respondent testified in person, as PW1, without calling any other witness, and tendered nine documentary evidence, exhibits 1 – 9, to prove his claims. Similarly, the appellant testified in person, as DW1, fielded no other witness, and tendered three documentary exhibits, exhibits 10 – 12, in disproof of the respondent’s claim and in proof of his counter-claim.

After the close of the cases for the respective parties, the parties filed written addresses which were duly adopted by their learned counsel in line with the provisions of the Rules. The lower court delivered its judgment on 19/10/2009 wherein it granted the respondent’s reliefs, declared him the holder of the statutory right of occupancy in respect of the land, restrained the appellant and his agents from disturbing the respondent’s enjoyment of same and awarded N50,000 damages against the appellant for trespass on the land. The lower court dismissed the appellant’s counter-claim as lacking in merit. The appellant was, obviously, dissatisfied with the verdict of the lower court. Hence, the appellant, on 28/10/2009 filed a notice of appeal hosting seven grounds, encapsulated on pages 232-239 of the record of appeal, and prayed this court to: “(i) Allow the appeal (ii) Dismiss the claims of the claimant/Respondent (iii) Grant the reliefs adumbrated on the Defendant/Appellant’s counter claim”. Following that, the parties filed and exchanged their briefs of argument in the manner required by law.

On 14/03/2012, the appeal was heard. In this wise, learned counsel for the appellant, K. K. Eleja, Esq., on that day, adopted the appellant’s brief of argument, filed on 02/03/2011 and the appellant’s reply brief of argument, filed on 01/03/2012, as representing his arguments in support of the appeal. He urged the court to allow the appeal. In the same vein, learned counsel for the respondent, Lanre Badmus, Esq., adopted the respondent’s brief of argument, filed on 20/07/2011, but deemed filed on 23/02/2012, as forming his submissions against the appeal. He prayed the court to dismiss the appeal.

The appellant, in his brief of argument, crafted three issues for determination of the appeal to wit:

“1) whether the trial court was not in error in holding that the issues in the case on appeal and those in the previous suit are different and in refusing to uphold the defence of estoppel per rem judicata and issue esoppel.

2) Whether the trial court was not in error having regard to the facts at its disposal especially exhibits 10, 11 and 12 that the alleged transfer of the land in issue from pastor J. A. Akinduro to the Respondent, the issuance of Right of occupancy and certificate of occupancy was not caught by the principles of lis pendens so as to render same ineffectual; and

3) Whether the trial court, having regard to the pleadings and the fact at its disposal, was right, in law, in granting the reliefs sought by the respondents while dismissing the appellant’s counter claim”.

On the other hand, the respondent, in his brief of argument, distilled three issues for determination of the appeal viz:

“(a) Whether the Trial court was right in holding that the issues in the case on Appeal and those in the previous suit are different and in refusing to uphold the Defence of estopel (sic) per rem judicata and issue estoppels.

(b) Whether the Court was right to have held that the safes of land from pastor J. A. Akinduro to the Respondent and the assurance (sic) of Right of occupancy and certificate of occupancy was not caught by the principles of lis pendens.