Mallam Saidu Amori V. Yakubu Iyanda (2007)

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HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the decision of the High Court in its appellate jurisdiction delivered on the 19th of October, 2004 by Hon, Justice Oyeyipo CJ, Hon, Justice J, F. Gbadeyan and Hon. Justice M. O. Adewara learned Judges of the High Court of Kwara State wherein the court dismissed the Appellant’s appeal and upheld the decision of the Upper Area Court No. 1 Ilorin. The facts leading to this appeal are as follows:

In a Motion on Notice dated the 1st day of December, 2000, brought pursuant to the provisions of Order 5 Rule 1, Order 17 Rules 1, 2 and 3 of the Area Court (Civil Procedure) Rules 1971 and under Section 287 (1) of the 1999 Constitution, the Respondent prayed the Upper Area Court No.1, Ilorin Suit No. UAC/CVF/78/93: YAKUBU IYANDA VS. MALLAM SAIDU AMORI & ORS for the following reliefs, to wit:

“(a) AN ORDER of this Honourable Court granting the Plaintiff/Applicant’s leave to enforce and/or execute the judgment of the High Court of Justice, IIorin in Suit No. KWS/38A/84 dated 24/5/85 affirmed by the Court of Appeal Kaduna in Suit No. CA/K/71/87 dated 19/4/1993 which said judgments were delivered in favour of the Plaintiff/Applicant.

(b) PURSUANT TO paragraph a (Supra) an order of this Honourable Court evicting or ejecting all the privies, personal representatives, children, dependants or any person or persons HOWSOEVER from the Plaintiff’s land situate, lying and being at Oloje, Ilorin Kwara State forthwith.

(c) AN ORDER of this Honourable Court directing the Defendants their servants, agents, privies, dependents, person representatives or any person or persons HOWSOEVER to remove all their corporeal items, structures, building or kiosks or any property of whatever description from the Plaintiffs land situate, lying and being at Oloje, Ilorin Kwara State based on the judgment of the High Court of Justice, Ilorin in its appellate session in Suit No. KWS/38A/84 dated 24th May, 1985 and affirmed by the Court of Appeal Kaduna, in Suit No. CA/K/71/87 dated the 19th day of

April, 1993.

(d) AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances of this case.”

The Upper Area Court on 24th July, 2001 granted all the reliefs sought by the Respondent.

The court held inter alia

“since the main Defendant whose tenants the rest defendants are has conceded the title to the subject matter of the dispute to the plaintiff, we enter judgment of the plaintiff…”

The Appellant as plaintiff before the Upper Area Court 1 Ilorin thereafter filed a Civil Summons against the defendant now respondent claiming the following:

“1. A Decleration that the consent judgment dated 24th July, 2001 and given by this Honourable Court in Suit No.CVF/78/93: Yakubu Iyanda v. Mallam Saidu Amori & 10 others, was given under a mistake of facts and misrepresentation, and is therefore a nullity.

2. A consequential order setting aside the consent judgment dated the 24th day of July, 2001.”

The matter was tried, the Appellant testified and called three witnesses. The Upper Area Court concluded the trial and gave judgment on 5/9/03 refusing to set aside its earlier judgment of 24/7/01. dissatisfied with the judgment of 5/9/03 delivered by the Upper Area Court, the Appellant appealed to the High Court of Justice Ilorin. The notice of appeal contained three grounds of appeal. The Respondent filed a notice of preliminary objection to ground 1 of the Appellant’s ground of appeal at the High Court.