Mallam Hassan Asiru V. Alhaji Shittu Asiru & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Kwara State, Ilorin division delivered on 13/3/2012 in suit No. KWS/127/2010 wherein the claimant’s claim was dismissed while judgment was entered for the 3rd defendant for a declaration and injunction out of her counter claim. The 3rd defendant is now the 3rd respondent.

As set out in their Amended Statement of claim, the appellant who was the claimant at the trial court sought the following reliefs:

1. A declaration that the sale of parcel of land located near Ganmo Station, Ganmo, by the 1st and 2nd defendants to the 3rd defendant without the consent and approval of the claimant being the head of Asiru Atunde family is void, wrongful and illegal.
2. An order of this Honourable court setting aside the purported sale of the parcel of land near Ganmo station, Ganmo, by the 1st and 2nd defendants to the 3rd defendant without the consent and approval of the claimant for being wrongful, illegal and void.
3. An order of this honourable court setting aside the Statutory Right of Occupancy No. KW16989 dated 3rd June, 2010 obtained by the 3rd Defendant on the land in dispute and/or any document of title howsoever described purporting to transfer the land in dispute to the 3rd defendant.

The Respondents as defendants filed their own pleadings with the 1st and 2nd Respondents filing a joint defence, while the 3rd respondent’s statement of defence contained the following reliefs by way of counterclaim;

1. A declaration that the 3rd defendant is the lawful owner of the piece of land lying and situate at behind Baptist Church, Secretariat, Sapati Area, Ganmo, Ifelodun Local Government Area, Kwara State covered by Right of Occupancy No. KW16989.
2. An Order of perpetual injunction restraining the claimants and 1st and 2nd defendants’ family from entering the land or disturbing the peaceful possession of the 3rd defendant/counter claimant on the land.
3. General damages of N1 Million.

In support of the claim the appellant testified as the sole witness; the 1st and 2nd respondents called two witnesses, while the 3rd respondent called three witnesses.

The sole witness for the claimant, Hassan Ashiru was PW1. He adopted his statement on oath as his evidence. Under cross examination he claimed to be the head of Ashiru Sanmami family and the 1st and 2nd defendants his brothers from the same father. He said his family had occupied the land in dispute since it was founded by one Okunoye who founded Ganmo, and no one has ever challenged their title to the land. The family gave land to people who built houses and own farms thereon. He denied knowing the 3rd defendant or having any meeting with the 3rd defendant. He denied any knowledge of sale of land to 3rd defendant by the 1st and 2nd defendants.

In defence of the claim and establishment of the counter claim, the DW1, Saidu Mahmud adopted his statement on oath and tendered a memorandum of understanding as exhibit D1. Under cross examination he admitted sale of land to the 3rd defendant and that his own section got N1.7 Million while his family had no meeting with the 3rd defendant during negotiation for the sale of the land.

DW2, Alhaji Oba Ashim adopted his written statement on oath and when he was cross examined, he said although the lawyers who sold the land collected N5 Million, they were given only N1.7 Million and they did not inform the claimant of the sale because he was not in town. He was only informed when he came back. There was no meeting held between their family and the 3rd defendant.

DW3, Baba Abdulrahman, an Estate Officer with the 3rd defendant adopted his statement on oath. Under cross examination, he tendered various documents that were admitted as exhibits D2 – D11. He said he knew the 1st and 2nd defendants in the course of sale of land to 3rd defendant and they took him to the land, but he never met the claimant.

DW4, Hanafi Folorunsho was the Company Secretary/Legal Adviser to the 3rd defendant. He tendered the Right of Occupancy issued to the 3rd defendant as exhibit 12; and when he was cross examined, he said he was a legal practitioner for 5 years before he joined the 3rd defendant and he knew the procedure for investigating title before sale of land and that his evidence is not limited to what he found in the file in the office. He agreed that the 1st, 2nd and 3rd defendants entered into a memorandum of understanding when the 1st and 2nd defendants said the land that was sold belong to them.

The appellant as the claimant was aggrieved by the judgment and commenced this appeal through the Notice of Appeal filed on 17/4/12 but subsequently amended with leave of court. The amended Notice of Appeal filed on 12/12/12 has eleven grounds of appeal. The Appellant’s Brief of Argument filed on 13/11/12 was deemed filed on 14/1/13 while the 3rd Respondents’ Brief was filed with leave of court on 2/3/13. The 1st and 2nd respondents did not file any Brief of argument. The appellant filed a Reply Brief on 2/4/2013.

In the Appellant’s Brief of Argument settled by Manzuma Issa Esq. of counsel, the following issues were set down for determination.

1. Whether the 3rd defendant proved her counter claim on the preponderance of evidence before the court and whether the learned trial judge evaluated the evidence properly.
2. Whether the 3rd defendant is entitled to any relief from the trial court having failed to prove her title through any of the recognised methods of proof of title to land, and whether the Oluganna family ought to be joined to the suit to prove or defend the family’s title to the land in dispute.
3. Whether proper evaluation of documentary evidence, especially Exhibits D1 and D7 tendered before the trial court, ought to be the basis for assessing oral evidence and credibility of witnesses and whether, effects of documents ought to be stated in pleadings.
4. Whether the learned trial judge was right to have relied on the evidence of DW5 whose statement of witness on oath was incompetent having been dated 17/6/2011 but filed on 22/6/11 and whether the learned trial judge could revisit his earlier rulings in his final judgment without calling on counsel to address him on the point.

The issues for determination as formulated in the 3rd Respondents’ Brief settled by Olufunke Aboyade of counsel are the following:

1. Whether the 3rd Respondent pleaded the relevant facts and related them to the evidence on the record to entitle her to the counter claims and whether the learned trial judge was right in his decision when he held that the doctrine of issue estoppel applied to the case.
2. Whether the learned trial judge properly admitted the evidence on the record and properly evaluated the totality of the evidence of the parties before arriving at the decision to dismiss the appellant’s case and entering Judgment for the 3rd respondent on her counter claim.
3. Whether or not having regard to the pleadings, evidence of the parties and the 3rd respondent’s counter claim the trial court was right to declare that the 3rd respondent has proved title to the land.
4. Whether DW5’s statement on oath is valid, legally admitted and properly relied on by the trial court.

Counsel for the parties at the hearing of the appeal adopted their respective brief(s) of argument and placed reliance thereon as their argument in the appeal. Manzuma Issa Esq. for the appellant urged the court to allow the appeal based on strength of his Appellants, brief and Reply brief; Kamaldeen Ajibade Esq. for the 3rd respondent urged court to dismiss the appeal as argued and prayed by him in his 3rd respondent’s brief while Mrs. J. O. Michaels for 1st and 2nd respondents did not contest the appeal having not filed any brief of argument.