Chief Oyebola Balogun V. Sakiratu Yusuff (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment)

The appeal arose from the judgment of the High Court of Oyo State, sitting at Ibadan (hereinafter called ‘The trial Court’), delivered by Honourable Justice J. O. Ige on 12th April 2002, wherein the claim of the Respondent to set aside execution by the Appellant of a judgment of a Court of concurrent jurisdiction was granted and the Appellant’s Counterclaim was dismissed.

Being dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal of Seven (7) Grounds at Pages 109, 110 and 111 of the records dated 19-04-2002. The background facts are as stated hereunder:-

The Respondent was the Plaintiff in the lower Court, and the Appellant was the Defendant/Counter-claimant. The Appellant had obtained judgment in Suit No. I/411/93 against certain Defendants for trespass and injunction in respect of a parcel of land. The Defendants in that suit did not include the Respondent in this case. It was contended on behalf of the Respondent that the execution of that judgment was wrongly levied against her own houses on Plots 75 and 76, Akoredele Layout.

The lower Court upheld the Respondent’s claim and set aside the execution of the judgment on two distinct grounds. Firstly, that a person who is not made a party to a suit, is not bound by the decision in the suit, particularly, as the Respondent did not derive title from any of the named Defendants in the suit. Secondly, the Appellant failed to establish that Respondent’s houses fell within the parcel of land in respect of which judgment in Suit No. 1/411/93 was delivered. The Appellant had counter-claimed for damages for trespass and perpetual injunction against the Respondent, but this claim was rejected and dismissed by the lower Court.

In the judgment delivered on the 12th of April, 2002, the claims of the – Respondent in the summons were granted.

This appeal is against the judgment. The Appellant formulated Six (6) Issues for determination. The Issues are:-

(1) Whether the Respondent got the legal ownership when there was evidence oral documentary, that the Late Alhaji Lasisi Keshinro, predecessor in title of the Respondent, negotiated for the grant of a parcel of land from the Arigbede Family and which was not completed, having regard to the fact that the purchase price was not paid in full and possession given to the Late Alhaji Lasisi Keshinro, in the presence of the witnesses – (Ground 1).

(2) Whether the identity of the land in dispute is uncertain when no issues were joined in the pleadings or even at the trial, and when the parties, the witnesses and their Learned Counsel were ad idem on the identity of the land in dispute. (Ground 2).

(3) Whether the success of the main claim defeats a Counter-claim which is an independent claim and when it was properly proved but was never considered. (Ground 3).

(4) Whether the Counter-claim was properly dismissed when the Appellant pleaded/three recognized methods of proving title and gave evidence accordingly. (Ground 4).

(5) Whether it was proper for the Court below to have acted on the facts not pleaded and issues joined upon and held that the defence of long possession applied to the Counter-claim- (Ground 5).

(6) Whether it was not a denial of a right of fair hearing, when the Court below acted on a letter for the Respondent’s Learned Counsel, containing authorities addressed to it, when a copy of the said letter was not endorsed to the Appellant for his reaction. (Ground 6).

The Respondent on her part, formulated Two (2) Issues for determination. The Issues are as follows:-