Bello Ogundele & Anor. V. Shittu Agiri & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

The Appellants herein, who were the plaintiffs at the trial High Court Osogbo claimed against the respondents herein as follows:

(1) “An Order that the judgment of the Hon. Justice S.A. Oloko delivered on 23/1/81 in suit No HOS/1/79 Muibi Agiri & Ors v. Kadiri Otun Imale & 2 others be set aside being tainted with fraud/ or misrepresentation.

(2) The sum of N3Million being the general and special damages for trespass and conversion committed as a result of the said judgment obtained by the Defendants.

(3) INJUNCTION restraining the defendants, their servants or agent from committing further acts of trespass and conversion on the plaintiffs’ farm land at Onifare village via Ila-Orangun in dispute in the said suit No HOS/l/79 Muibi Agiri and 2 others vs. Kadiri Otun Imale and 2 others”

The appellants in paragraphs 8 and 9 of his statement of claim pleaded the facts of the fraud as follows:-

“8. On comparing the contents of the proceedings tendered by the defendants (as plaintiffs) in suit NO.HOS/l/79 as Exhibit B and the certified true copy of the same proceedings obtained at the Archives by the plaintiffs in 1995, it was discovered that the contents were different in that only a part of the proceedings was procured and tendered by the defendants (as plaintiffs) while the remaining and concluding part was fraudulently left out or concealed”.

PARTICULARS OF THE FRAUD OR MISREPRESENTATION

(i) That the defendants (as plaintiffs) fraudulently procured and tendered only the part of the proceedings in the case 1/37 favourable to them and left out the subsequent proceedings in the same case which was not favourable to them.

(ii) That the defendants (the plaintiffs) tendered only the proceedings of 26/6/37, 7/7/37 and 14/7/37 while the subsequent proceedings of 22/9/38, 28/9/30 and 5/10/38 were deliberately left out or concealed.

(iii) That the final judgment in the case was delivered on 5/10/38 and not on 14/7/37 as falsely misrepresented on the version tendered in HOS/1/79 and in their oral evidence in court.

(iv) That the defendants (as plaintiffs) know or ought to know that’ after the proceedings of 14/7/37 there were further proceedings in the Native Court case involving an order of reopening of the case by the then “D. O” on 22/9/38 and further order of Inspection before judgment was finally given on 5/10/38 as they fully participated in the proceedings. They intentionally mis-represented the facts to the court.

(v) That the defendants (as plaintiffs) deliberately procured the part of the proceedings favourable to them to enable them obtain judgment in their favour thereby deceiving and misleading the court in the said suit HOS/1/79,

(vi) That if the full record of proceedings of the Native court case had been tendered, the decision of the court in suit No, HOS/1/79 would have been different”.