Olukotun Jean V. Basiratu Hassan & Ors (2007)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A., OFR

This is an appeal brought against the decision of Lagos High Court delivered on 3rd. February, 1994, In the judgment, the learned trial judge ordered the defendant to give up possession of a parcel of farmland measuring 60′ x 120′ at Iyana Ishashi, Ishashi Village Road, Okokomaiko as well as payment of general damages of N1 0,000.00 to the plaintiff. The counter-claim of the defendant was dismissed. The defendant being dissatisfied appealed to this court on two grounds of appeal. In accordance with the practice of this court briefs of argument were settled at the Appellant’s and Respondent’s briefs of argument. In the appellant’s brief the following issues were framed:

“1. Whether having regards to the state of the pleadings and the issue joined between the parties as well as

evidence led, the court below was right to have given judgment in favour of the plaintiff in the light of the failure to issue valid statutory notices to recover premises.

2. Whether the court below was right in the evaluation of the evidence of the plaintiff taking into consideration unpleaded facts and issue raised suo motu by the court which was not pleaded and the obvious inconsistencies in the evidence of the plaintiff and the plaintiff’s witness.”

The respondent identified and formulated the following issues for determination.

“1. Whether or not considering the pleadings filed by the parties in this suit and evidence adduced at the hearing, the judgment delivered by the learned trial judge on 3rd February 1994 should not be upheld.

2. Whether or not the learned trial judge’s evaluation of evidence adduced by the plaintiff now Respondent and the defendant now Appellant at the hearing of this suit is not proper consequent upon which judgment was delivered in this suit.”

I have carefully considered the formulations of both the appellant and the respondent and am firmly of the view that respondent’s issue 1 does not now flow from any of the grounds of appeal adumbrated in the appellant’s notice of appeal. Since the respondent had not cross-appealed he cannot identify an issue outside or independent of the appellant’s grounds of appeal. On appellants issue 1, I am respectfully of the view that there was no issue joined on the competence of the notice to quit allegedly served on the appellant. In this connection, the respondent pleaded as follows in paragraphs 15 and 16 of his statement of claim.

“15. By a Quit notice dated 30th July, 1988 served on the Defendant on the same day by the plaintiff the

defendant was asked to quit the said land under his forceful occupation.

16. By another notice dated 31st August 1988 served on the Defendant the same day by the plaintiff the

defendant was asked to Quit the said land under his forceful occupation.”

The defendant, incidentally the appellant herein, averred in paragraphs 9 and 10 as follows –

“9. In answer to paragraph 15 of the statement of claim the Defendant denies receiving the said quit notice

from the plaintiff.

10. The Defendant is not in a position to admit or deny paragraph 16 of the statement of claim but would

require the strictest proof.