Moses Ademola Agbaje V. Ademola Coker (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 26th November, 2013 in the Customary Court of Appeal, Osun State Holden at Osogbo. The Appellant was Respondent in the Customary Court of Appeal. The Respondent was the Appellant in the Customer Court of Appeal.

Chief Lisagbe got judgment in his favour against Coker Fadare on 19th April 1974 in suit No C 79/69 in the Customary Court of Western State of Nigeria in the Ilesha, Divisional Grade “A” Customary Court.Chief Lisagbe died before executing the judgment.

It is this judgment that the son of Chief Lisagbe, the Appellant sought to execute against the son of Coker Fadare.

The action commenced in the District Customary Court, Ikinyinwa District Osun State holden at Ikinyinwa wherein the Appellant by motion on notice prayed for the following:

(a) Leave of the Court for extension of time within which to issue processes of enforcement of the judgment in suit No: C/79/69.

(b) Leave of the Court to issue enforcement processes in the name of the Applicant or his nominees or agents against the Estates of the late Coker Fadare.

The District Customary Court (hereinafter referred to as the trial Court) granted the application of the Appellant after considering affidavit evidence and addresses of learned counsel for the parties. The Respondent was dissatisfied and appealed to the Customary Court of Appeal (hereinafter referred to as the lower Court). The lower Court in its judgment delivered on 26th November 2013 set aside the ruling of the trial Court.

The Appellant has himself approached this Court by notice of appeal dated and filed 31st January, 2014 challenging the judgment of the lower Court. The notice of appeal contains six grounds of appeal. The Appellant presented the following issues for determination:

1. Whether the lower Court was right to have held that Exhibit A was a legal inadmissible evidence because “it was not certified in accordance with the provisions of Section 111 of the Evidence Act 2004 ?”.
2. Whether the Appellant and the Respondent herein were properly substituted for the original parties in Suit No. C.79 169 of 19th April, 1974 for purposes of enforcement of the judgment.
3. Whether the allegation of fraud and forgery made by the Respondent herein were justified or proved.
4. Whether the learned lead Justice of the lead judgment in the Court below was justified in describing the counsel to the Appellant herein as RUDE, RECKLESS and UNCOUTH.
5. Whether the Order for Extension of Time granted by the trial Court but annulled by the Court below was inoperative by virtue of Osun State Limitation Law.
6. Whether the cost in the Suit at the trial Court was awarded against a non-existing party.

Although the Respondent raised a preliminary objection, he nevertheless adopted four out of the six issues formulated by the Appellant should the preliminary objection be overruled.

The appeal was argued on the following briefs:

1. Brief of Argument of Appellant dated and filed on 12th May 2014 settled by Folarin Popoola Esq.
2. Respondent’s Brief of Argument dated and filed on 22nd April, 2015 settled by Kanmi Ajibola Esq.

Arguing the appeal, learned counsel for the Appellant on issue 1 referred the Court to page 7-13 of the record of appeal containing the document alleged to be improperly certified. It was contended that one Mr. Ademola Adewale, Senior Court Registrar, Customary Court Ogburu Ilesa who had custody and signed (i.e. to say subscribed) the last page of the document, wrote his name and rank and dated it as 04/05/2011. That he also endorsed the receipt number of the fees paid. In addition, he stamped every page of the document but did not sign on every page.

The certifying officer, it was argued, did not (sign) subscribe to the first page of Exhibit A because Section 111 (1) of the Evidence Act did not so prescribe. That the signature on the first page was that of the Senior Registrar of the trial Court when accepting the document for filing as an Exhibit on 3/4/11. It was submitted that the name “Ademola Adewale” and his signature appeared only at the last page of the document which is the foot of the document. It is not every page, it was submitted, that must be (signed) subscribed.

The foot of the document it was submitted, should not be interpreted to read the foot of every page which is an addition to the provision of Section 111(i) of the Evidence Act. The Court, it was submitted, is not permitted to add to the provisions of an Act words that are not there in the first instance. We were referred to AG Abia State v. AG Fed. (2005) WRN 37 at 1 and Shettima v. Goni (2011) 10 SCNJ 66 at 98.