Rafiu Sangodare V. Tayo Oladokun & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SONTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Osun State sitting at Ikire, delivered on 26th of January 2007.

The appellant as plaintiff sued the respondents as defendants at the Customary Court sitting at Ikoyi in the Isokan Local Government of Osun State for a declaration of Customary Right of Occupancy over a piece of farmland situate at Gbagbon Village, Ikoyi. He also claimed injunction, possession, special and general damages and other reliefs the court may deem fit to make in the circumstance.

The customary court gave judgment for the plaintiff and the defendants being dissatisfied, appealed to the Chief Magistrate Court, Ikire which in a considered judgment delivered on 13th March, 2003, allowed the appeal against the Customary Court judgment and went further to grant title to the disputed land to the defendants/appellants therein.

The plaintiff/respondent being dissatisfied with the judgment of the Chief Magistrate Court, appealed to the High Court of Osun State sitting at Ikire, who in a well considered judgment delivered on 26th January, 2007, dismissed the appeal, set aside the award of title to the disputed land to the respondents by the Chief Magistrate Court and instead substituted dismissal of the appellant case at the Magistrate Court.

Being dissatisfied, the appellant herein filed a notice of appeal on 27th March, 2007, containing 11 grounds of appeal. The appellant filed brief of argument dated and filed on 12/7/2010 and served on the respondent who did not enter appearance or file any process in this appeal. By order of this court, this appeal was heard on appellants brief alone on 16/01/2014.

In the said brief of argument, the appellant distilled five (5) issues for determination of this appeal thus:

1. Whether the High Court sitting in its appellate jurisdiction was correct to say that there is reasonable exception to the settled principle of law that any appellate court cannot pronounce or decide on the issues that the trial court has no opportunity to pronounce upon.
2. Whether the High Court sitting in its appellate jurisdiction has the power to amend the record of proceedings in the Magistrate Court before it to include Exhibit B and C or any documents whatsoever which were not part of the record of appeal either from trial court or the Magistrate Court sitting on appeal from Customary Court.
3. Whether the High Court sitting in its appellate jurisdiction properly applied guidelines to be in reviewing the decision from Customary Court.
4. Whether the High Court sitting as an appellate court has jurisdiction to substitute dismissal of the appellant’s claim in the Customary Court.
5. Whether there was enough evidence in the record to enable the appellant to maintain an action in trespass.

Since the respondent did not file any process in this matter despite having being served of all the appellants’ processes, I am left to determine this appeal solely on the issues as formulated by the appellant. I shall resolve issues 1, 2 and 4 together, while issues 3 and 5 shall also be resolved together given their similarities.

ISSUE 1

“Whether the High Court sitting in its appellate jurisdiction was correct to say that there is reasonable exception to the settled principle of law that any appellate court cannot pronounce or decide on the issues that the trial court has no opportunity to pronounce upon.”

Learned counsel for the appellant argued this issue one on two legs. On the first leg, the learned counsel submitted that at the Magistrate Court stage of this matter that the Magistrate in his judgment, found that the mandatory conditions given by the court of first instance, that is the Customary Court for the appeal to Magistrate Court were not complied with by the respondent herein (who was the appellant therein).

At the High Court stage, the appellant herein pointed out that failure and argued that there was no valid appeal before the Magistrate Court and therefore the Magistrate Court lacked the jurisdiction to have pronounced on this matter. The respondent therein, in reaction to that objection, brought an application praying the High Court for an order allowing them to put in receipts which were the omission in the record of appeal as ordered by the Customary Court.

This application was strongly objected to by the appellant herein. The High Court however granted the application and the said receipts were admitted and marked Exhibits B and C. Counsel for the appellant herein opined that even though same have been admitted, by the High Court, it still does not form part of the record of appeal from the Customary Court.

On the second leg, learned counsel submitted that appellate courts is not competent to pronounce upon issues which the trial court did not have opportunity of pronouncing upon and that there is no exception to this principle of law. He relied on the cases of Ogbeide vs. Osula (2004) FWLR (pt.191) 1609 @ 1621; Gbadamosi vs. Dairo (2007) FWLR (Pt.357) 812 @ 827.