A. Ariori & Ors. V. Muraino B.O. Elemo & Ors. (1983)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

This case has a chequered history. But as only a few of the facts thereof are germane to the points to which the appeal before this court has resolved itself, I will not bother with setting out all the facts of the case, but will be content with such of the facts as are necessary for the purpose of bringing out the points in the appeal which are material to the issues discussed in the judgment.

The case itself was filed in the High Court of Lagos State on 15th October, 1960 and after all the preliminaries which included filing and settling of pleadings and substitution of parties for those that died during the pendency of the case, hearing was fixed before Kester, J. (as he then was) for 18th November, 1964. Kester, J. took some evidence in the case.

After this, the pleadings were amended and again hearing was adjourned till 10th June 1966. But the case did not come up until 8th March 1968 when it was mentioned de novo before Beckley, J. who was the Judge who eventually tried the case. From March 1966 until 1st March 1972, the case dragged on, beset with one application or another. However, on that day, that is 1st March 1972, hearing commenced before Beckley, J. By 3rd March, the 1st plaintiff’s witness had concluded his evidence and further hearing was adjourned till 16th May at the instance of the court. Further evidence was taken and by consent, the case was adjourned till 14th June 1972. After 14th June 1972, the next adjourned date for mention was on 16th October 1972 and the adjournment was at the instance of the learned counsel for the defendants.

These defendants are the appellants in this court. Further hearing did not continue until 12th February 1974 and adjournments up till that time had been mostly at the instance of parties and or their counsel who also came up with various applications.

The defence which opened on 12th February 1974 was concluded on 3rd July 1974 and the court took the addresses of learned counsel from 12th July 1974 to 18th July 1974 when the learned trial Judge adjourned judgment sine die.

Now, on 3rd October, 1975, fifteen months after the close of the case (and which was also three years and seven months after the court, [Beckley, J.] took the first evidence in the case), the learned trial Judge delivered his judgment. He dismissed the plaintiffs’ claim.

In the Federal Court of Appeal, one of the main complaints by the plaintiffs, who were the appellants in that court, was that the learned trial Judge took a long time after the conclusion of the case before he delivered judgment and by this reason, he was not in a position to appreciate the issues involved in the case in a proper focus or remember his own impressions of the witnesses. The gravity of this complaint would be more evident when it is realised that in all, up to twenty witnesses gave evidence before the learned trial Judge. In the judgment of the Federal Court of Appeal, delivered by Coker, J.C.A. the Court held –

“We think that grounds 1 and 2 must succeed. We have at the beginning of this judgment stated in detail the intervals between the hearing of evidence of the plaintiffs and their witnesses and those of the defendants and their witnesses.

We have also examined the interval between the completion of addresses of counsel and the date when judgment was delivered. We have also carefully read the record of proceedings and have come to the conclusion that there is merit in the argument of Professor Kasunmu on the two grounds. We shall give further consideration as to whether the mind of the learned trial Judge and his findings could have been affected by the unreasonable delay between the 1st March 1972 when the evidence of the 1st P.W. was commenced and the 14th June 1972 when the last of the nine plaintiffs witnesses gave evidence on the one hand, and the 12th February 1974 when the 11th D.W. testified on the second part, and finally between the 18th July 1974 when Ajose Adeogun (now a Judge) concluded his address and the 3rd October 1975 when judgment was delivered by the learned trial Judge.”

In regard to the question whether the mind of the learned trial Judge and his findings could have been affected by the unreasonable delay complained of, the learned Justice of the Court of Appeal listed several reasons why the inordinate delay by the learned trial Judge had caused mis-directions and non-directions on the part of the (trial) Judge. I will have to quote quite extensively from that judgment as, it would be seen anon, that, it would be difficult to separate this inordinate delay from the real complaints of the appellants even in this Court, notwithstanding the constitutional issue which has pervaded the whole appeal. The learned Justice of the Court of Appeal said –

“On the whole, it is quite clear that the learned trial Judge, with the lapse of time lost the trend of the evidence before him. In the first place, he lost sight of the fact that the onus of proving the grant was on the defendants and not the plaintiffs’ family, who were admittedly the original owners. The onus was also on the defendants to prove the extent and nature of the grant to them. On the evidence as a whole, they failed to discharge that onus.

Secondly, he never directed himself on the evidence that as late as 1910, the plaintiffs’ family were still granting part of the land to tenants under Yoruba customary law vide exhibits 2, 3, 11 and 12. The reason given by him that he could place no weight on Exhs. 2 and 3 because no plans were attached to them is untenable. He failed also to consider Exhs. 11 and 12 at all.

Thirdly, he was in error in rejecting the expert evidence called by the appellants, as a result of his misconceived view of the case of Oshodi v. Balogun, 4 WACA (sic), in the absence of any other evidence to the contrary.