James Ogundele V. Dare Julius Fasu.(1999)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C

The appellant whose claim (as plaintiff) against the respondent (as defendant) for damages for trespass on land claimed to be the appellant’s family land and an order of perpetual injunction restraining the respondent from further acts of trespass on the land, was dismissed by the High Court of Ondo State, and whose appeal from the decision of that court was dismissed by the Court of Appeal, has brought a further appeal to this court.

Ojuolape, J., who heard the case at the High Court was of the opinion, on the pleadings, that it was common ground that the parties had their respective farmlands from the same grantor who was their common ancestor,that they had a common boundary and that the main issue for determination in the case was: “where lies the common boundary between the two parties” after which the subsidiary issue would arise whether the respondent had crossed that boundary. Having considered the evidence adduced by both parties, the learned trial judge came to the conclusion that the appellant’s story that the land in dispute belonged to his family was not true having regard to the totality of the evidence. He came to this conclusion after setting out the principle that should guide him when parties rely on conflicting traditional history as set out in Kodjo v. Bonsie (1957) 1 WLR 1223. In accordance with that principle, he tested the traditional history by reference to the facts in recent years as established by evidence. It was clear from the judgment of the trial judge that the evidence he relied on was the oral evidence of the witnesses who testified. It has not been suggested on this appellants that he was wrong in believing or disbelieving any of the witnesses.

In the course of his judgment, the judge in several places made mention of an inspection of the land that he conducted “with the parties and their counsel as well as some of the witnesses”. Extracts from the judgment show that: (1) The inspection covered about four hours during which the judge and the parties, their counsel and some of the witnesses went round various location on the land in dispute, (2) The court observed that: “the ancient footpath which runs through exhibit ‘A’ is the one along the yellow line and which represents the common boundary between the plaintiffs land and that of the defendant. The defendant’s family land is on the Western side of the yellow line while that of the plaintiff is on the Eastern side of the yellow line”; (3) The court observed: “the defendant’s family members’ farms were found scattered all over the area B.”

The trial judge held that the appellant was not in exclusive possession of the land in dispute and dismissed the appellant’s claim. On the appellant’s appeal to the Court of Appeal, several issues were canvassed by counsel on his behalf. At the end of the day, that court was of the view that the two substantial issues in the case were whether there were violations, as alleged by the appellant, of “section 154 (sic) of the 1979 Constitution” and of section 77 (d)(ii) of the Evidence Act.

The first issue identified by the Court of Appeal arose because the trial judge delivered his judgment outside the three months limit prescribed by the 1979 Constitution for delivery of judgments. The fact was undisputed that although evidence and addresses were concluded in the case on 7th March. 1989 judgment was not delivered until 10th July. 1989, that is to say, months and a few days after the conclusion of evidence and addresses. The second issue arose because the judge did not invite parties and witnesses to testify on what they saw during the visit to the locus in quo.

Ogundere, J.C.A. who delivered the leading judgment of the Court below with which Adio, J.C.A. (as he then was) and Akpabio J.C.A. agreed, dismissed those issues, he being of the opinion, as to the former, that no miscarriage of justice had been occasioned and as to the latter that whatever error had occurred did not affect the trial judge’s conclusion. In the event, the Court of Appeal dismissed the appellants’, appeal. The appellant appealed.

On this further appeal from the decision of the Court of Appeal, heard pursuant to 0.6 r. R of the Supreme Court Rules as having been argued by the parties, the appellant persisted in the complaints which he had raised, on the briefs filed, albeit without profit, in the court below. The two grounds of appeal raised by his notice of appeal complained of errors in law respectively as follows: First, that the Court of Appeal erred in law in “dismissing the appellant’s appeal notwithstanding the violation of section 257(1) (sic) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Amendment Act No. 17 of 1989 sub-section 4 of section 258 and section 76(ii) of the Evidence Act.”, and secondly, that the Court of Appeal erred in law in dismissing the appeal after it had held that the trial judge had erred in making references to certain facts which he personally observed during the visit to the locus in quo. It was given as one of the particulars of error that a miscarriage of justice had been occasioned in that the appellant was “denied the right to give evidence to testify and address Court on this relevant issue i.e. visit to locus in quo after inspection.”

It is pertinent to observe, with some dismay that the particulars of error given in regard to the first ground of appeal related to the alleged irregularity occasioned by the inspection of the land. There was no attack on the opinion held by the Court of Appeal that: “the appellant did not show what miscarriage of justice was occasioned by the one month lateness in the delivery of the judgment of the lower Court in excess of the three months Constitutional time.”

Although section 258(1) of the 1979 Constitution provided that every court established under the Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, a new subsection had been introduced by Decree No. 17, of 1985 which provided that the decision of a court shall not be set aside or treated as a nullity on the ground of the provisions. inter alia, of section 258(1): “unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof’.

It is clear that for a party who establishes that a judgment has been delivered outside the period set by the Constitution for delivery of judgments to have such judgment set aside on the ground that it has been delivered outside such period. It is not sufficient to establish a contravention of the Constitutional provision. He must also establish that a miscarriage of justice has been occasioned in regard to him by reason of the contravention.

On this appeal, it has not been shown that the Court of Appeal was wrong in holding that the appellant had not shown what miscarriage of justice was occasioned by delivery of the judgment a month after the prescribed period. The appellant had tried to show that an alleged irregularity in the course of the trial i.e. in the visit to the locus in quo, had occasioned a miscarriage of justice. It is clear that the miscarriage of justice that is relevant in regard to section 258(4) of the 1979 Constitution (as amended) (and, I dare say, section 294(5) of the 1999 Constitution) is miscarriage of justice suffered by the party complaining by reason of contravention of that section, and not a miscarriage of justice that may have occurred by reason or an irregularity in the course of the proceedings. I hold that the appellant’s first ground of appeal and the second issue on this appeal based thereon are misconceived and without substance.

The first issue raised on this appeal is couched thus:

“Whether the Court of Appeal was justified in dismissing Plaintiff/Appellant’s appeal having held as follows: