Bisiriyu Shittu & Anor V. Sherifatu Alimi (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A.:(Delivering the Leading Judgment)

This appeal is in respect of the judgment of the High Court of Ogun State in a land matter. The matter did not commence in the High Court of Ogun State as a court of first instance. It came before that court on appeal from the judgment of the Customary Court Grade 1, Isara, Ogun State. The lower court delivered its judgment in the appeal on 3/5/2006. The judgment was against the Appellants.

Dissatisfied with the judgment, the Appellants have further appealed to this court. They filed their Notice of Appeal on 27/4/2009 after an application for extension of time to do so was granted by this court. The Appellants’ Brief of Argument was filed on 8/7/2009 while the Respondents Brief of Argument was filed on 28/9/2009 but deemed as properly filed and served on 30/11/2009 courtesy an order of this court.

The Appellants identified four issues for determination, viz

(1) Whether the Learned High Court Judge was right when she held that from the claim as formulated and the totality of the evidence before the lower court, the case fought by the parties was on ownership of title to land;

(2) Whether the Learned High Court Judge was right when she held at Page 6 of her judgment that ground 2 of the appeal before her failed because it was premised on affidavit which had become exhausted;

(3) Whether the Learned High Court Judge was right when she perfunctorily and superficially dismissed the Appellants complaint that the Customary Court was perverse in its judgment without deciding whether the said judgment was actually perverse or not perverse; and

(4) Whether the Learned High Court Judge was right when she held in her judgment that the Respondent’s family was in possession of the land in dispute and that the Appellants having failed to establish their title to the land had to fail in their claim for trespass and damages and that the lower court rightly appraised the evidence before it and arrived at an appropriate decision.

The Respondent in her Brief of Argument also identified four issues for determination. The issues are –

(1) Whether from the claim of the Plaintiffs/Appellants and the totality of evidence adduced by both parties at the trial, the lower court was right in holding that title was the plank on which plaintiffs premised their claim at the Customary Court;

(2) Whether action for trespass is sustainable at the instance of the plaintiffs whose root of title failed and who were not proved to be in possession of the land allegedly trespassed upon as it had happened in this case;

(3) Whether the lower court was right in holding that Ground 2 of the Grounds of Appeal filed and argued as such failed because it was premised on an affidavit which had exhausted;

(4) Whether the lower court made proper evaluation and appraisal of the case before arriving at its decision of affirming the trial court’s decision, that is, whether evidence of parties on the printed record of appeal supported the decision of the lower court.

I have carefully gone through the judgment of the lower court and my conclusion after doing so is that the court could not and should not have decided the matter given the situation before it. What is that situation? It is simply this: there was no issue for determination identified before the court. The Appellants at the lower court, filed four grounds of appeal against the judgment of the Customary Court, but did not formulate even a single issue as arising from those four grounds of appeal for determination at the lower court. This fundamental error was noticed by the lower court at page 5 of its judgment where it noted thus: