Mr. Ilori V. Alhaji Issa Olaroungbe Umar & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of High Court Justice of Kwara State sitting in its Appellate jurisdiction over the judgment of the Upper Area Court sitting at Ganmo whereby the High Court ordered a retrial before another panel of the Upper Area Court. Dissatisfied with the judgment delivered on the 6th day of May, 2009, the Appellant through his counsel Toyin Oladipo Esq., filed a Notice of Appeal with four Grounds as contained at pages 116 to 118 of the Record of Appeal. Upon the Records being transmitted to this Honourable Court, parties were ordered to file their respect briefs which were duly exchanged in accordance with the Rules of Court.

The facts of the case as stated in the Appellant’s Brief are that sometime in 1994, the Appellant purchased ten (10) plots of land from the Adifa family of Ilorin, at the time one Jimoh Aduagba was the caretaker or supervisor put in charge of the Adifa family land. Payment of the purchase price for the land was made to the then Head of the Adifa family, late Momood Popoola through the said caretaker Jimoh Aduagba who testified as DW3 and whom the trial Upper Area Court found to be a dupe and liar. The surveyor of the Adifa family was said to have testified as DW2 to the effect that he witnessed the transaction.

An agreement in writing was also said to have been executed between the late Mamood Popoola and the Appellant in respect of the land and that pursuant to the agreement, the Appellant took possession of the said land and commissioned the Adifa family surveyor to survey same and Appellant planted palm trees and other economic crops thereon. He also established a block making industry on part of the land.

In 2008, the Respondents (Plaintiffs before the Upper Area Court) instituted action against the Appellant claiming title to the ten plots and injunction. At the hearing of the case, 2nd and 3rd Respondents testified in support of their case while the Appellant also testified and called three (3) witnesses. In the course of examination-in-chief of DW3 (Jimoh Aduagba), the then counsel for the Appellant (then Defendant) applied to the court to declare him a hostile witness which application the Upper Area Court refused.

In its judgment, the Upper Area Court awarded the land to the Respondent and being dissatisfied with that judgment, the Appellant appealed to the Appellate Session of the High Court of Kwara State on ten Grounds of which only one of the grounds (Ground 3) thereof which complained against the refusal of the Upper Area Court to declare DW3 as a hostile witness, was considered. The High Court thereafter sent the case back to the Upper Area Court for retrial by another panel, oblivious of the other nine (9) Grounds of Appeal.

The Respondents’ case on the other hand, is that they were the Respondents before the High Court {Appellate Session} and the Plaintiffs before the Upper Area Court Ganmo. According to them, they are members of Adifa family of Adifa Compound, Ilorin, Kwara State, The Adifa family is said to have an expanse of land situate, lying and being at Akata Area, Tanke, Ilorin, Kwara State which land extends to Oke-Ogun Village and Tanke Iledu Village.

It is their further case that the Appellant without notice, consent approval and or authority of the Respondents’ family entered part of the land covering ten plots and when in the year 2007, the Respondents discovered that it was he Appellant who entered part of their land, they requested the Appellant to vacate their family land but he refused. They, then on the 30th day of May, 2008, instituted a suit against the Appellant before the Area court III Pake, Ilorin claiming title to the land occupied illegally by the Appellant.

The suit was later at the request of the Appellant transferred to Upper Area court, Ganmo where it was determined by the court after taking evidence from the parties and their respective witnesses. The trial Upper Area court in the course of hearing the matter ruled based on the application of the Appellant that DW3 was not a hostile witness, (page 47 lines 15 – 25 of the Records) refers. At the conclusion of hearing, the trial court on the 20th day of February, 2009, delivered its judgment and granted all the Respondents’ prayers contained in their Summons (Page 1 of the record of proceedings). The Appellant being dissatisfied with the decision of the Appellate High Court filed a Notice of Appeal dated 15th day of May, 2009, to this Court.

In the Brief settled by Toyin Oladipo Esq., on behalf of the Appellant, four (4) issues were distilled from the four (4) Grounds of Appeal filed by the Appellant which are hereunder reproduced as couched inter alia:-

ISSUES FOR DETERMINATION

1. Whether the High Court was right by failing to consider or determine the other nine (9) grounds of appeal filed by the Appellant (Ground 3).
2. Whether the High Court was right by failing to evaluate the evidence adduced before the trial court and dismiss the case as the trial court ought to have done. (Ground 1).
3. Whether the High Court properly exercised its power to order a retrial.(Ground 2)
4. Whether the respondent proved their case before the trial Upper Area Court. (Ground 4)

As for the Respondents’ Brief settled by F.B. Fabiyi Esq. four (4) issues were equally formulated from the four (4) Grounds of Appeal couched the in following terms:-

ISSUES FOR DETERMINATION

(1) Whether the High court was right in holding that it is unnecessary to consider the other ground of appeal since the case will be tried a new (pages 114 lines 18 – 20 of the record). (Ground 1)