Rafiu Womiloju & 6 Ors V Mr. Fatai Ogisanyin Anibire & 4 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD. J.S.C

The plaintiffs at the High Court of Justice of Ogun State (trial court), took out a writ of summons against the defendants. In both the writ of summons and paragraph 20 of the amended statement of claim, the plaintiffs indorsed their claims as follows:

“1. The plaintiffs claim against the Defendants jointly and severally is for: –

1) Declaration that the plaintiffs are entitled to a Statutory/Customary Right of Occupancy to that piece or parcel of land situate, lying and being at Orile-Agbogbo, Olorunleke, Ado-Odo, Local Government Area of Ogun State.

2) Declaration that the Defendants have incurred forfeiture under Native Law and custom of the land described above which they occupy as plaintiffs’ tenants, which land is shown on survey plan to be filed later.

3) An Order that the said Defendants, their servants or Agents do deliver up possession of the said land to the plaintiffs.

4) Perpetual injunction restraining the Defendants their servants and/or agents from any further entry on the said land.

Annual Rental value is N10.00.”

After the settlement of pleadings by the parties and taking evidence by the trial court, the claims of the plaintiffs were dismissed by that court. Dissatisfied with that decision, the plaintiffs appealed to the court below.

The court below, after a review of the whole proceedings at the trial court, found merit in the appeal and allowed same. Dissatisfied, the defendants now appealed to this court on eight grounds of appeal. The complaint in the first ground of appeal is that the court below erred in law by hearing the appeal and delivering judgment on 13/04/93 when it was not properly constituted as required by law in that one of the justices that participated and read the leading judgment, Kolawole, JCA was counsel in suit No.AD/57/70 which purported to relate to the same land subject matter of this appeal, which ran contrary to the fundamental concept of the administration of justice as the court below did not secure a fair hearing for the appellants.

Briefs of argument were filed and exchanged by the parties as required by the Supreme Court Rules.

The appeal was heard by this court on the 1st day of February, 2010. The learned counsel for the appellants adopted and relied on his brief of argument. The learned counsel for the respondents, as well, adopted and relied on his brief of argument.

In his brief of argument, learned counsel for the appellants formulated the following sole issue for our consideration; viz:

“Whether the Honourable Justice Owolabi Kolawole was qualified to be a member of the panel which heard the appeal and delivered judgment at the lower court on the 13th day of April 1993 in view of his connection with the Appellants as their counsel in SUIT NO.AD/57/70 which relates to the same parcel of land being the subject matter of the appeal.”