Ezekiel Ogunleye v. H.R.H. Oba Joshua O. Aina & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Kwara State High Court. Ilorin Division, per M. O. Adewara, J; delivered on the 31st day of March. 2009 granting part of the Plaintiff (now 1st Respondent’s) claim and dismissing the Counter-claim of the 5th Defendant/Counter-Claimant (now Appellant) in its entirely. Dissatisfied with the judgment as handed down by the learned trial Judge, the Appellant filed a whopping ten Grounds of Appeal as contained in pages 363 to 368 of the record of proceedings.

The Plaintiff on his part filed a Cross-Appeal against part of the lower court’s decision refusing to grant reliefs 3, 5, 6 and 10 of the Plaintiff/1st Respondent’s claim. After the Record of proceedings had been transmitted to this Honourable Court, parties were ordered of exchange their briefs in line with the Rules of the Court and in the brief settled by Dayo Akinlaja Esq. on behalf of the Appellant, three issues couched in the following terms were distilled for determination thus:-

ISSUE ONE:

Whether the learned trial judge was not wrong in countenancing and giving probative value to exhibits 1, 2, 3, 8, and 11 in this case? Ground one.

“ISSUE TWO:

Whether having regard to the evidence available in this case the learned trial judge ‘was not wrong in granting the reliefs granted in favour of the 1st respondent? Grounds two, three, four, five, six, nine and ten.

ISSUE THREE

Whether the learned trial judge was n0t wrong in dismissing the counter-claim of the appellant? Grounds seven and eight.”

The 1st Respondent in the brief settled on his behalf by Temidayo Eseyin Esq. distilled two issues as calling for determination which are set down hereunder as follows:-

“1. Whether having regard to the evidence adduced before the lower court, the Learned Trial Judge was right when he granted the Reliefs of the 1st Respondent? (Grounds 1, 4, 5, 6, 9 and 10).

“2. Whether the Learned Trial Judge was right in dismissing the Counter-Claim of the Appellant? (Grounds 7 and 8).

As for the 3rd and 4th Respondents, the Learned Attorney-General of Kwara State, as he then was, Alhaji Saka A. Isau (SAN), also identified three issues as calling for determination inter alia:-

1. Whether on the strength of the evidence before the trial court, the 1st Respondent was entitled to the reliefs granted by the Court in his favour? (Grounds 1, 4, 5, 6, 9 and 10).
2. Whether the Learned Trial Judge did miss-apprehend the facts in issue in, this case? (Grounds 2 and 3).
3. Whether the Learned Trial Judge was right in dismissing the Appellant’s Counter-Claim? (Grounds 7 and 8).

The 2nd defendant did not appeal or file any process in this Appeal and Cross-Appeal because the Claim against it had been struck out for failure of the Claimant/1st Respondent to serve the said 2nd Defendant with the necessary pre-action notice.