Kamoru Aiye Tijani V. Samisideen Akinwunmi (1989)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

This appeal relates to land matter. One of the legal issues raised however is whether a ground of appeal in respect of an interlocutory ruling against which there was no separate appeal can be argued without leave of court along with other grounds relating to the final judgment.

In the High Court of Lagos State, the plaintiff who is the respondent in this Court claimed per his writ of summons from the respondent, now the appellant, for (1) possession of a parcel of land which situate at Moricas Area, Oniwaya Road, Agege, delineated in Survey Plan No. D213 dated the 26th of July, 1971; (2) perpetual injunction restraining the defendant, his agents, servants and privies from remaining on or continuing in occupation of the said parcel of land.

The plaintiff and five other witnesses testified in support of his claim while the defendant and four witnesses adduced evidence to rebut the case of the plaintiff. The parties did not appear to claim to derive title to the land in dispute from the same source. It was the plaintiff’s case that one Yesufu Adegboye Oseni was the original owner of the land in dispute and that it was a part of a larger tract of land which he, Oseni, sold to one Alhaji A.S. Jinadu, who in turn sold two plots (plots A & B) measuring 100ft x 100ft on 5th April, 1971 to the plaintiff as evidenced by the Deed of Conveyance, Exhibit “A.” The plaintiff fenced the two plots round with cement blocks and built on Plot” A.” Apart from using plot “B” for gardening and horticultural farming, he also dug a well therein. In July, 1975, the defendant and his agents broke into plot “B” and started to erect a building thereon which the defendant eventually completed erecting.

It was the case for the defendant that he took a leasehold of the land, that is, plot “B”, from A.G. Olalabi Sulu as far back as 3rd February, 1961 but in the name of his brother Rasaki Rallutu, D.W.3. The Deed of Lease in respect of the transaction was however not executed until 20th April, 1976.

At the close of the case of the defendant and at the address stage learned counsel for the defendant orally applied to the court to re-open the defence in order that “a vital document pleaded in paragraph 7 of the Statement of Defence be tendered.”

Learned counsel speculated that failure to tender the document could have been due to an oversight by counsel who was originally in the case.

Learned counsel for the plaintiff opposed the oral application on the ground that notice relating to the application had not been given him and that failure to tender it was not due to “omission or inadvertence.”

In his ruling, the learned trial Judge gave four reasons why the application must be rejected and went on to refuse it. Following the address of counsel, in a reserved judgment delivered on 2nd November, 1981, the learned trial Judge concluded that the Deed of Conveyance tendered by the defendant dated 20th April, 1976, Exhibit “F”, “was made for the purpose of this litigation and does contain erasure which made the whole document suspicious” and that the document was “an after-thought.” He was satisfied that, “the evidence by the plaintiff and his witnesses are true in all essential details” and entered judgment for the plaintiff as claimed by him in his writ of summons.

Against the judgment the appellant filed his notice of appeal based on two grounds complaining of (1) the decision being “unwarranted, unreasonable and cannot be supported having regard to the weight of evidence”; and (2) a misdirection by the learned trial Judge by refusing the defendant leave to re-open his case by calling additional witness to tender a document vital to the defence.

In this Court the appellant filed an amended notice of appeal consisting of seven grounds, inclusive of the two original complaints. In the appellant’s brief seven questions were formulated as issues for determination. They read:

“(1) Whether in the circumstances of the claim for possession and injunction, the pleadings and evidence in support of the case with the issues raised thereon, the learned trial Judge was right in giving judgment for the plaintiff for possession and injunction.

(2) Whether the learned trial Judge was right in Law in refusing to reject or expunge Exhibit “F” from his record having found that it was prepared for the purpose of the suit before him.

(3) Whether the learned trial Judge properly directed himself by making comments on the credibility of Exhibit “F” which he bad earlier on ruled that was prepared for the purpose of the case.