Tajudeen Alabi & Anor V. F. O. Doherty & Ors (2005)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

The facts of the matter leading to the instant appeal are brief and not in dispute. These facts, from the pleadings and evidence supplied by parties at the trial court, Lagos State High Court, are hereunder retold.

Ademuyiwa Ashamu, now deceased, had had and held a parcel of land under Yoruba native law and custom. The land, on Ademuyiwa’s death, devolved on his children: Tiamiyu, Ashimowu and Bisiriyu. The children exercised diverse acts of possession and ownership over the land that had on the death of their father, devolved on them. The letting of the land in dispute in 1973, to Tajudeen Alabi, one of the two appellants, was one of such acts. Mr Alabi, who was the defendant in suit No. LD.825/84 at the lower court, was a rent paying tenant. His case is that the land he initially held as a tenant was subsequently sold to him by Tiamiyu Ashamu in 1978. Tiamiyu was the head of the Ashamu family from 1972, at the time of sale of the land in dispute to Tajudeen and, until his death subsequently.

The respondents in this appeal, being plaintiffs at the lower court, had claimed against Tajudeen Alabi for declaration of title under native law and custom to the land they latter claimed to have purchased from Tiamiyu. Their claim also included a prayer for possession, setting aside the purported sale to the defendant by Tiamiyu, and an order for mesne profits.

Judgment was entered in favour of respondents on 20th March, 1996. Chief Anthony Ezeweputa, the 1st appellant, purchased from Tajudeen Alabi, the land in dispute. With the leave of court, the former commenced the instant appeal on a record eleven grounds.

On behalf of the appellants, seven issues have been formulated from the grounds of appeal as having arisen for the determination of the appeal. These issues as contained in the appellants’ brief as filed and exchanged read:

“i. Whether the judgment in the case was not vitiated by flagrant breaches of the constitutional rights of the defendant and the person interested to fair hearing guaranteed by section 33 of the 1979 Constitution, now section 36 of the 1999 Constitution.

ii. Whether the records show that the learned Judge exercised his discretion to have adjourned the case, with just five short witnesses by both sides, well over sixty times judiciously and judicially by giving good reasons for the adjournments.

iii. Whether the learned Judge’s decision in this case was in accord with the principle of law established long ago in the case of Ekpendu v. Erika (1959) 4 FSC 79; (1959) SCNLR 186, and affirmed by the Court of Appeal and the Supreme Court in many decided cases and whether his conclusion that a sale by the head of the family without consent is invalid and not voidable, is not clearly wrong.

iv. Whether, as the validity and effect of exhibit 3, the 1st plaintiff’s document of title, depended on the revocation of the grant to the defendant by exhibit 5, which was at worst a voidable grant which the learned Judge did not find to have been revoked, he was right to have proceeded to compare both documents which had no comparable legal effects, and in the process find that the plaintiff established a better title was not wrong.

v. Whether the long delays of over twelve years between the commencement of the suit and the delivery of the judgment, in a hearing studded with over 60 adjournments most of them for frivolous reasons or no reasons at all, did not result in the learned trial Judge’s loss of his recollection of the evidence and wrong evaluation of the evidence, oral and documentary placed before him, and thereby resulted in miscarriage of justice.

vi. Whether the learned Judge was not guilty of misdirection or non-direction by failing to find that as there was at worst a voidable but subsisting sale of the land in dispute to the defendant by exhibit 5 from 1977, and as he did not find that the sale had been revoked or voided, he was not wrong to have failed to find that the land in dispute was not available for sale to the 1st plaintiff in 1982, and so, there was no land for sale and no basis for comparing the titles of the 1st plaintiff and the defendant as evidenced by exhibit 3 and exhibit 5 respectively.

vii. Whether the learned trial Judge in his judgment considered and took into account the defendant’s undisputed evidence of possession of the land in dispute from 1973, including his undisputed possession as a rent paying tenant, his grant of portions of it to tenants of his, such as DW.2 who was put in as a tenant on the land in 1980, and he erected a shop on it and remained in possession thereof up till the date of judgment, and his grantee openly investing so much money to build a substantial building on the land.”

The respondents’ brief contain two issues for the determination of the appeal as follows: