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  • 2003-01-06
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Salami v. Oseni

ALHAJI RUFAI A. SALAMI

( For himself and on behalf of the entire Agbelu family )

V

AMUSA OSENI

ALHAJI RAJI SOBULE

RAIMI ASAYE

SHITTU SALAMI

COURT OF APPEAL

( IBADAN DIVISION )

SUNDAY AKINOLA AKINTAN, JCA ( Presided )

MORONKEJI OMOTAYO ONALAJA, JCA  (Read the Lead Judgment)

OLUFUNLOLA OYELOLA ADEKEYE, JCA

CA/I/20/97

THURSDAY, 6TH DECEMBER, 2001

ACTION - Competence of - Duty of court to determine question of competence before considering any other issue

APPEAL - Leave to appeal - Whether leave of court is required before an appeal could be lodged in this matter being an appeal from the High

Court in its appellate jurisdiction - Section 242(1) 1999 Constitution

COURT - Competence of an action - Duty on court to determine same before considering any other issue

COURT - Competence of - What determines - Guiding principle - Effect of incompetence - Madukolu vs. Nkemdilim revisited

LEGAL PRACTITIONER - Counsel filing brief but failing to appear to argue - Implication of

STATUTE - Interpretation of constitutional provisions - Duty on court to give liberal interpretation

Issue:

Whether this appeal is competent being an appeal originating from a Customary Court to the High Court and from the High Court to the Court of Appeal on grounds of law, facts and mixed facts and law.

Facts:

In Iperu Remo Grade II Customary Court, Iperu Remo, Ogun State the plaintiff before the said court (in a representative capacity for himself and on behalf of the entire Agbelu family Iperu Remo) sued the defendants for a declaration of title to a parcel of land situate at old Ikenne Road, Iperu Remo which they occupied as tenants from the Agbelu family long time ago but which they have refused to quit against the wish of the plaintiff.

After the trial in the said Customary Court and visit to the locus in quo, the court ordered the defendants to relinquish to the plaintiff just a portion of the land claimed by the plaintiff. Both the plaintiff and the defendants were dissatisfied with this judgment and both accordingly appealed to the High Court of Ogun State holden at Sagamu. The plaintiff was still dissatisfied with the judgment of that court and appealed further to the Court of Appeal.

On appeal, the issue of the competence of the appeal was raised by the defendants/respondents who predicated his position on the failure of the plaintiff/appellant to seek leave of the High Court before filing the notice of appeal.