Bello Musa Magaji V. Alhaji Ishola Are Ogele (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, Coram M. O. Adewara and H. O. Ajayi, JJ, in suit No KWS/7A/2009, delivered on 28/09/2010, wherein the lower court upheld the decision of the Upper Area Court 1, Ilorin given in favour of the plaintiff/respondent against the defendant/appellant in suit No. CVF/43/2004.

As can be garnered from the records, the respondent’s case, which culminated in this appeal, is fraught with bends. The subject-matter of the case, real property, is not a stranger to litigations, having witnessed a litany of them. It, the res, was greeted by another batch of litigation in suit No. CVF/23/91 filed, in the trial Upper Area Court 1, Ilorin, by the respondent. In that case, the respondent, as the plaintiff, claimed against the appellant, as the defendant for:

” i. The declaration of title to Budo Nuhu.

ii. Order of forfeiture of the land granted by the plaintiff to defendant’s father due to defendant’s acts of challenging the customary ownership and title of the plaintiff over the land and failure to pay customary tributes.

iii. Arrears of tributes at the rate of One Thousand and Five Hundred Naira (N1,500.00) per annum for 32 years.

v. Cost of litigation”.

That case snaked from that trial upper Area Court through the High Court and the Court of Appeal to the Supreme Court, in Appeal No.SC/96/1998. The Supreme Court delivered its decision on 12/12/2003 wherein it upheld the judgment of the Court of Appeal which ordered that that case be heard de novo because the decision of the trial Upper Area Court was delivered in chambers.

Sequel to that, final, order, the parties returned to the trial Upper Area Court, abridged to “the trial court” hereunder, and that gave birth to the suit No. CVF/43/2004 which, eventually, led to this appeal with the same claims made by the parties in the earlier one for adjudication.

The case went through a full-scale trial before the trial court. In proof of his case, the respondent testified and called four other witnesses, that is, PW1 – PW5 and the plaintiff. On the other hand, the appellant did not testify in person, but fielded four witnesses, PW1 – PW4, to disprove the respondent’s claims and in proof of his counter-claim. A flurry of exhibits were tendered by both parties in the case. The trial court gave its judgment, on 12/09/2008, wherein it, on pages 226 – 227 of the record of appeal, ordered:

“… we grant the plaintiff’s claim and dismiss the counter-claim of the defendant. The act of the defendant also warrant the order of forteiture over the disputed land, we therefore so order. We do not know how the alleged tribute of one keg of cheese, Fifty Kobo and a cock transform into N1,500.00 per annum, since it is not proved, it is refused.”

The appellant was, naturally, dissatisfied with the trial court’s decision. Consequently, he appealed against it, via suit No KWS/7A/2009, to the High Court of Kwara State, appellate division, by a dint of a notice of appeal, filed on 07/10/2008, hosting 13 grounds of appeal therein. The High Court, the lower court for short, duly, heard the appeal in its appellate division. The lower court gave its verdict on 28/09/2010 in which it, on page 434 of the record of appeal, held: “In the result, we hold that all the grounds of appeal argued in this appeal lack merit and they all fail. The judgment of the trial court is upheld and the appeal is accordingly dismissed.”

Again, the appellant was aggrieved by the decision of the lower court. Hence, the appellant filed 9-ground notice of appeal, found on pages 435 – 441 of the record of appeal, on 16/12/2010. Subsequently, the appellant, on 25/01/2011, filed an amended notice of appeal, housing eleven (11) grounds of appeal and located on pages 442 – 449 of the record of appeal. In the said amended notice of appeal, the appellant prayed this court for: “Order setting aside the Judgment of the High Court and in its stead dismiss the respondent’s claims while granting the reliefs sought by the Appellant before the trial court.” During the pendency of the appeal, the court, on 31/01/2012, at the behest of the appellant, substituted the name of the deceased original appellant, Alhaji Banni Gaa Budo Nuhu, with Bello Musa Magaji as the present appellant.

The parties, duly, filed and exchanged their briefs of argument in the manner prescribed by law.