Chief Micheal O. Owope V. Ben Osanibi & Ors (2009)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

This is an appeal against the judgment of Honourable Justice H.A. Olusiyi and Hon. Justice S.K. Otta, of the High Court of Kogi State, Holden at Kabba, sitting in its appellate jurisdiction, delivered on the 9th of July, 2004, whereby the court set aside the decision of the trial court and ordered a retrial by the Upper Area Court, Isanlu, Kogi State.

The trial court was the Upper Area Court Iyara in Kogi State wherein the Respondents as plaintiffs filed a writ of summons against the Defendants now Appellants. The Respondent’s claim was dismissed and judgment entered in favour of the Appellants. The Respondent therein appealed to the Appellate session of the High Court of Kogi State sitting at Kabba. The High Court heard the appeal set aside the judgment of the upper Area Court Iyara, Kogi State and ordered a retrial denovo before the Upper Area Court Isanlu, Kogi State,

The Appellants dissatisfied with the decision of the High Court entered appeal before this Honourable Court, with the leave of this court granted on 23rd February, 2005. The Appellant filed seven grounds of mixed law and facts vide a Notice of Appeal dated 3rd March, 2005.

The facts of this case briefly stated are as follows; the appellants were Defendants at the trial court, which is the Upper Area Court Iyara, Kogi State, where the plaintiffs, now Respondents in this Appeal, sued for the following on behalf of the Irasi Family:-

1. N3, 000 damages for trespass committed by the Defendants on the plaintiffs’ Afo-Aiyedun farm land.
2. An order of court restraining the Defendants, his servants or agents and members of his family from further trespass into the plaintiffs’ farm land in, Afo-Aiyedun at Otu near Kabba and further dealing with the said farm land.
3. N1, 800 being the value of palm fruits harvested by the Defendants.

The plaintiffs called 4 witnesses, and parties tendered Exhibits. After the close of the case of the parties, the court visited the Locus-In-quo and thereafter the counsel submitted written addresses.

The Trial Upper Area Court dismissed the claim of the plaintiffs and held that the Defendants established a better title to the land in dispute.

Dissatisfied with the Judgment of the Trial Upper Area Court, the plaintiff appealed to the High Court of Kogi State, sitting at Kabba. The plaintiffs filed one original ground of appeal and by the leave of the Court filed two (2) additional grounds of Appeal on 24/09/03.

The grounds of appeal filed by the plaintiffs at the Lower Court are:

ORIGINAL GROUND 1:

The Decision of the Trial Upper Area Court is unnecessary, unwarranted and cannot be supported, having regard to the weight of evidence adduced.

ADDITIONAL GROUND 1:

The President and Members of the Trial Upper Area Court erred in law when they failed to comply with the Rules of Natural justice in their adjudication over the case and thereby occasioned a miscarriage of justice.

ADDITIONAL GROUND 2: