MR Sunday Towoju V. Alfa Saka Salami & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

The instant interlocutory appeal culminates from the ruling of the High Court of Kwara State, Ilorin delivered on 19th June, 2013. In the said ruling delivered by Halima Saleeman J., the oral application to allow the Appellant produce a counter survey plan over the same Plot of land upon which the Kwara State Surveyor General had produced a plan, was refused.

Briefly, the facts that ushered the ruling under challenge is that sequent to the action of the Appellant against the Respondents at the High Court of Kwara State, Ilorin, Pre-Trial Conference (PTC) was commenced. During the PTC the parties agreed that the Kwara State Surveyor General should be commissioned to produce a plan of the land with the understanding that the 2nd Respondent’s 4 plots of land covered by Certificate of Occupancy No. KW 110660 will be ascertained and the remaining portion of land adjudged the Appellant’s land in view of his claim that he bought the conterminous land sold to the 2nd Respondent from the same common owner -Late Sheu Ahmed Yusuf.

When the plan was produced by the office of the Kwara State Surveyor General, the Appellant observed that the plan did not represent the measurement of the land on site. He accordingly prayed the Court to allow the Appellant prepare a counter plan so that the two plans will be before the Court.

Counsel for the 2nd Respondent opposed this application on grounds that no law empowers the Court to direct a party on how to proof his case, the Court cannot assist a party in the way and manner he proves his case, and lastly because a counter plan was not pleaded. The learned Counsel for the 1st Respondent said he has no objection to the application in the interest of justice.

At the end, the trial court ruled against the Appellant whereupon he filed a Notice of Appeal on 22nd November, 2013 upon 2 Grounds of Appeal to express dissatisfaction with the ruling.

Before the appeal was heard on 5th June, 2014, the Court was satisfied that both Respondents who were absent from court had been duly served with hearing notices for the day’s hearing. The Court therefore allowed the Appellant to adopt the Appellant’s brief and reply brief filed on 1st April, 2014 and 2nd of May, 2014 respectively.

The court deemed the 2nd Respondents brief filed on 24th April, 2014 adopted; while the 1st Respondent filed no brief.

The Appellant in his brief settled by Mr. Saka Rasak Ayodeji, distilled 2 issues for the determination of this appeal. The 2 issues are as follows:

“1. Whether in the circumstance of this case and at the stage when oral application was made, the Appellant need to plead the fact that he will be preparing a counter plan before such an application could be made and granted.

2. And whether the court rightly refused the application of the Appellant.”

Mr. J. W. Iroju who prepared the 2nd Respondent’s brief formulated this sole issue for determination

“Whether going by the circumstances of this case and the provision of the Kwara State High Court Rules the trial court rightly rejected the oral application of the Appellant to produce a counter plan.”

The 2 issues formulated by the Appellant are same issues subsumed in the 2nd Respondent’s sole issue. Little wonder Appellant argued the 2 issues together. I shall determine this appeal on the sole issue raised by the 2nd Respondent which more elegantly captures the grouse as represented by the Appellant’s Grounds of Appeal.

In making his submissions the learned counsel for the Appellant really went to town with plethora of authorities to address the fact that, it is the duty of the Appellant as the claimant to establish: