Iyabo Isiak & Anor V. Alhaji Saka Opobiyi (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal stemmed from the ruling of the Kwara State High Court, Ilorin Division, presided over by Hon. Justice J. F. Gbadeyan, delivered on 01/12/2004 dismissing the appellants’ application to set aside the judgment of the lower court delivered on 26/03/2004.

The facts of that case, which culminated into this appeal, are straight forward. On 14/06/2001 the appellants, as the plaintiffs, sued the defendant, as the defendant, in the lower court in suit No. KWS/96/2001 wherein, they, the appellants, claimed against the respondent for a declaration of entitlement to a statutory right of occupancy, trespass, injunction and damages over a parcel of land situated, lying and being at Ita-Ama close-next to the fence of Pakata Dispensary and Maternity on the North-side Angle in Ilorin West Local Government Area.

In an expected reaction to the appellants’ action, the respondent entered an appearance, by dint of an application, and subsequently filed a statement of defence. The appellants, perhaps in order to leave no stone unturned, filed a reply to the respondent’s statement of defence.

Thereafter, the lower court proceeded to trial of the matter. In the course of the trial proceedings, the appellants fielded five (5) witnesses who were duly cross-examined by the respondent. Later on, the respondent filed an application, on 24/01/2003, for an order of the lower court to recall the appellants’ fifth witness, PW5, who had concluded his testimony on 18/11/2003. The appellants, vehemently, opposed the application which was duly heard and argued on 28/01/2003. In a considered ruling delivered on 19/03/2003, the lower court granted the application and thereby recalled PW5 for further cross-examination by the respondent and adjourned the case to 23/04/2003 and 24/04/2003 for that purpose.

After the hearing and ruling on that application, the case suffered several adjournments wherein the appellants were not in court nor were they represented. The respondent on 03/03/2004, opened his defence to the action and closed same on 04/03/2004 after calling four (4) witnesses who were not cross-examined by the appellants due to their absence from the proceedings. The respondent filed his final written address on 11/03/2004 and adopted same on 18/03/2004. On 26/03/2004, the lower court handed down its decision in which it dismissed the appellants’ suit.

Sequel to that judgment, the appellants, as applicants, applied on 13/07/2004 to the lower court to set aside same on the ground that it was not on the merit. The application, which was duly heard on 01/12/2004 was, strenuously and stoutly, opposed by the respondent. On that same day, 01/12/2004, the lower court ruled on the application thus: “This court became functus officio on 26/3/2004 when it delivered the judgment and no longer has the power to set aside the decision which is decision on merit…. This application is hereby dismissed.”

The appellants were dissatisfied with the ruling. Consequently, they filed a notice of appeal on 6/12/2004, hosting two grounds of appeal encapsulated on pages 85 – 86 of the record, wherein they prayed this court for “An order setting aside the entire proceedings in default of Notice or set aside the judgment of the High Court in this case thereby allowing the plaintiff to cross-examine the defence witnesses”. To put the record straight, during the pendency of the appeal, the original first and third appellants and the second respondent died. The original first appellant, Kusumu Saruku, was substituted with the present first appellant, Iyabo Isiak, vide an order of this court made on 14/4/2011 at the behest of the appellants.

The appeal was heard on 05/03/2012. On that day, learned counsel for the appellants, Abdulhamid Rabiu, Esq. adopted the appellants’ brief of argument, filed on 18/05/2011, but deemed filed on 01/06/2011, and the appellants’ reply brief of argument, filed on 30/12/2011, but deemed filed on 05/03/2012, as representing his arguments in support of the appeal. He urged the court to allow the appeal. On the other hand, learned counsel for the respondent, Akin Akintoye II, adopted the respondent’s brief of argument, filed on 29/06/2011, as representing his submissions against the appeal. He prayed the court to dismiss the appeal.

During the hearing of the appeal, on 05/03/2012, and before the adoption of the parties’ briefs of arguments, learned counsel for the respondent intimated the court that the respondent filed a notice of preliminary objection, on 22/12/2011, against the appeal. Learned counsel apprised the court of the abandonment and concession made by the appellants, in paragraph 2.04 of their reply brief of argument, that their ground 2 and issue 2 and 3 were incompetent. Learned Counsel urged the court to strike them out based on that concession. On his part, learned counsel for the appellant admitted the abandonment and concession, a good and rare element of advocacy to be hold, and was not opposed to the application of the learned counsel for the respondent. Consequent upon those admission, abandonment and non-opposition, the court struck out the appellants’ ground 2 and issues 2 and 3 on grounds of incompetence. That, as shall unveil anon, pruned down or down sized the grounds and issues in contentions in the preliminary objection and the appeal respectively.

The law mandates me to deal with the respondent’s preliminary objection in order to determine the fortune of the appeal, see Akpan vs. Bob (2010) 17 NWLR (Pt.1223) 421; Odedo vs. INEC (2008) 17 NWLR (Pt.1117) 554. B.A.S.F. (Nig.) Ltd. vs. Faith Enterprises Ltd. (2010) 4 NWLR (Pt.1183) 104; SPDCN Ltd. vs. Amadi (2011) 14 NWLR (Pt.1266) 157; Efet vs. INEC (2011) 7 NWLR (Pt.1247) 423. In keeping with the law, I will tackle the respondent’s preliminary objection first.

THE PRELIMINARY OBJECTION

As already noted, the respondent, on 22/12/2011, filed a notice of preliminary objection and its particulars are, for ease of appreciation and reference, hereunder reproduced, verbatim or literatim, thus:

“i. All the particulars (I, II and III) of the 1st ground of appeal do not relate to the 1st ground of appeal and that they do not reflect the decision of the court appealed against. Hence, the ground is incompetent as they cannot stand alone.