Mallam Yusuf Jimoh & Ors. V. Mallam Karimu Akande & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C. 

This appeal is against the decision of the Court of Appeal, Ilorin Division (i.e. Court below) delivered on 19/11/2001 upholding the decision of the Kwara State High Court of Justice sitting at Ilorin in its appellate jurisdiction delivered on 27/10/1998, which in turn has allowed the appeal against the decision of the Upper Area Court delivered on 19/3/1998 giving judgment in favour of the plaintiffs (appellants in this court). The appellants and the respondents in this Court are the plaintiffs and the defendants respectively at the trial Upper Area Court.

Aggrieved by the decision of the Court below the appellants (plaintiffs) by a Notice of Appeal dated 15/1/2002 and filed on 17/1/2002 with leave of the court below have raised six grounds of appeal therein.

The appellants and the respondents have filed and exchanged their respective briefs of argument. The appellants in their brief of argument, have distilled two issues for determination and they are as follows:

“1. Whether the court below was right having regard to exhibits P1, D1 and D2 to have agreed with the High Court that the respondents invocation of Res judicata should succeed based on exhibits D5 and D6, when the Land adjudicated upon in the latter exhibits is distinct from the land in dispute as adjudged in exhibit P1.

2. Whether the court below was right to have agreed with the High Court that the judgment of the trial Upper Area Court was not sustainable having regard to the totality of the cases of the parties and the various material contradictions contained in the case of the Respondents.”

The Respondents have all said, distilled a lone issue for determination as follows:

“Whether shorn of all pretensions the evidence adduced on which the germane findings of the lower court were based by both parties, the judgment of the Lower Court was sound and unassailable”.

The facts of this matter as gleaned from the Record of the Upper Area Court and as given by both parties in their testimonies as would be expected in a land matter of this nature have diverged in major particulars. This case having been started in a Native Court i.e. the Upper Area Court holden at Ilorin, as the trial Court, this Court has to look at the entire proceedings before the Upper Area Court in order to ascertain the nature of the case adjudicated upon by the said trial Upper Area Court. The plaintiffs claim as presented by one of them is that:

“My claim before the Court is that of trespass on my land lying at Jaju Olosunde against the Defendant”.

The 1st Defendant before the joinder of the 2nd and 3rd Defendants (Respondents) has answered the Plaintiffs’ claim thus:

“I deny liability to the plaintiffs’ claim”.

The 1st plaintiff has concluded his evidence before the Upper Area Court thus:

“I want the Court to drive the Defendant away from my land and collect the cost of my locust bean (sic) which he plucked”.

The 3rd Plaintiff in like manner has concluded his evidence thus: