Chief Musibau Dada & Anor V. Joseph K. Kadiri (2008)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

This is an appeal against the interlocutory decision of the Ogun State High Court contained in ruling of Hon. Justice A.A. Akinyemi sitting at Ota Division of the court and delivered on 19th day of January 2006 in suit no. HCT/13/2003. The brief facts of the case from which the appeal arose are supplied hereunder.

The Respondents in this appeal, as plaintiffs at the lower court, took out a writ 15th January, 2003 against the Appellant who was the defendant. Respondent claim was for declaration of title to the land situate off Lagos/Sokoto Road at Ijuri Village near Igbesa in Ogun State which land is more particularly delineated and verged “Green” in the survey plan No, TAA/OG/038/95 dated 10/02/95 and measuring approximately 19.687 acres. Respondents also prayed the court for a N2 Million Naira damages for Appellant’s trespass and an order of perpetual injunction restraining the Appellant, his agents, servants, privies, assigns etc. from further trespass on the same parcel of land.

Pleadings were ordered, filed, exchanged and settled. Respondents’ case against (he Appellant is that the two branches, Olukeye and Kusesi, constituting the Respondents’ family of the Ijuri village sold five acres out of their large expanse of land to the Appellant. This was sometime in 1976. It is Respondents further case that Appellant, rather than restrict himself to the five acres sold to him appropriated Respondents land in excess of the parcel vested in him by virtue of the sale.

Appellant on the other hand denied Respondents entire claim. He also counter claimed that he bought ten and not the five acres averred to by the Respondents in their writ and statement of claim Trial commenced on 31-05-2005 with the Respondents opening their case.

PW1 testified in Chief for the Respondents, PW1 was cross examined by Appellant Counsel. In the course of the cross examination, Appellant’s Counsel sought to tender a receipt in respect of the ten acres of land the Appellant asserted to have bought from Respondents’ family. Counsel to the Respondents objected to the admissibility of the document In evidence on the ground that necessary foundation for its being admitted as required by Section 91 of the Evidence Act had not been laid.

Appellant’s Counsel, without joining issue with respondents’ Counsel on the objection, immediately applied to withdraw the contentious document. The application for the withdrawal of the document was challenged by learned respondents’ Counsel as being belated. The lower court not only refused appellant counsel’s application to withdraw the tendered document but also refused admitting the document in evidence. The document was ordered by the court to be marked ass rejected.

Being dissatisfied with the ruling, the Appellant has appeal against it on three grounds. In keeping with rules of this court, parties have filed and exchanged briefs of argument. At the hearing of the appeal, Counsel adopted and relied on their respective briefs.

A single issue formulated for the determination of the appeal at page 9 of the appellant’s brief reads:-

“whether the rejection by the trial judge of a purchase receipt which is relevant to the appellants case is not premature and wrongful and amounts to an infringement of the rule of audi alteram patem as well as a deprivation of the appellant’s right to fair hearing as enshrined in section 36 of the constitution of the federal republic of Nigeria, 1999”.

The two issues distilled in the respondents’ brief for the determination of the appeal read:-

“(a) Whether the court below was right to have declined the request of the appellant to withdraw the purchase receipt after an application had been made to tender same and an objection had been taken to its admissibility by the respondents’ Counsel:

(b) Whether the Appellant’s right to fair hearing was deprived by the court below when it ruled on the admissibility of the purchase receipt and consequently rejecting same”.

On Appellant’s single issue, Mr. Ojutalayo of Counsel referred to paragraph 6-8 of Appellant’s “mended statement of defence and counter claim where the size and extent of the land in dispute was averred to by the Appellant. Therein, Appellant asserted that he bought 10 acres of land from Respondents’ family.