Taiwo Ajani V. Situ Giwa (1986)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The appellant was the plaintiff in an action which he instituted in 1970against the respondent as defendant. In paragraph 30 of his further amended statement of claim the plaintiff claimed for himself and on behalf of Agbaruru family as follows –

“(1) A declaration that the plaintiff is the person entitled to certificate of occupancy to be granted under the Land Use Decree No.6 of 1978 in respect of all that parcel of land situate, being and lying at Igbo-Ifa, Irawote in Isalu Quarters in Iseyin Town in the Iseyin Local Government Area in Oyo State of Nigeria which parcel of land is shown and edged “Blue” in Survey Plan No. BK 6806A dated 8th December, 1970 and drawn by A. Togonu-Bickersteth, Licensed Surveyor and Survey Plan No. OB 881 dated 24th September, 1973 and drawn by O. Bamgbose, Licensed Surveyor filed with the plaintiffs original statement of claim in this suit.

(2) the sum of five Hundred Naira (N500.00) being general damages for the trespass which the defendant and his servants or agents have since the year 1966 been committing to the said parcel of land.

(3) An injunction restraining the defendant, his servants, agents and/or privies from committing any further trespass to the said parcel of land and from disturbing or molesting the plaintiff and/or any member of Agbaruru family and/or any person claiming through them in their worship of Ifa Oracle on the said parcel of land.”

The case had a chequered history. It was either mentioned or part heard before four different Judges in the Oyo Judicial Division. It finally came before a fifth Judge – Apara J – on 27th June, 1977. Even though a case was fixed for hearing on that day, counsel for the defendant was not in court. Counsel for the plaintiff therefore stated as follows-

“….the counsel for the defendant has not been as co-operative as one would have expected in handling this case. Mr. Falade is the counsel for the defendant. Because of his unco-operative attitude, this is the fourth time the case has to start de novo before the fourth Judge in this (Oyo) Judicial Division ”

and the Judge remarked as follows-

“This is a 1970 case. In view of Mr. Popoola’s observations above, this case will start today. If Mr. Falade is still interested in the case as counsel for the defendant, whatever stage we reach in the case when he puts in an appearance, he knows what to do. Before I arrived at this Judicial Division, this case had already been fixed for hearing for today, tomorrow and Wednesday. In fact it is the only case fixed for hearing for the whole of this week. This is the more reason why I will start hearing the case today.”

Accordingly, the plaintiff’s case opened. The Plaintiff gave evidence and the hearing continued through to Wednesday. The defendant was present throughout the hearing. On Tuesday 28th June, 1977, Mr. Falade the defendants counsel was in court. He cross-examined the plaintiff and the 1st Plaintiffs witness who testified on the third day – Wednesday 29th June, 1977. By consent of Mr. Popoola and Mr. Falade the hearing in the case was adjourned to continue on the 12th and 13th July, 1977. Series of adjournments followed thereafter and the plaintiff’s case was not closed until 4th December, 1978 – about one and a half years after it was opened. As Mr. Falade was absent in court on the day the plaintiffs case was closed, the learned trial Judge adjourned the case till 3rd January, 1979 for further hearing and to enable Mr. Falade to appear for the defendant. On the adjourned date instead of opening the case, Mr. Falade applied to recall Mr. Olawuyi Bamgbose, who was the plaintiffs 4th witness. The application was granted by the trial Court and the case had to be further adjourned till 27th February, 1979. On the adjourned date the parties were present and so also Mr. D Popoola. But Mr. Falade was absent. The learned trial Judge then minuted thus –

“There is a letter from Mr. Falade asking that this case be stood down till 10.30 a.m. as he is appearing in a Motion in Ibadan Court today. It is now 10.50 a.m. and Mr. Falade is not yet in court. The situation is explained by the court to the Defendant personally. He is told that he can proceed with his case and call as many witnesses as he likes, having been present in court while the plaintiff’s case was being put before the court. The defendant refuses to proceed with his case in the absence of the counsel. ”

It is to be observed that the minutes made no mention of the presence in court of the 4th plaintiff’s witness who was to be further cross-examined. Mr. Popoola then applied to proceed under Order 26 Rule 18 of the High court (Civil Procedure) Rules, Cap. 44 of the Laws of Western Region of Nigeria, 1959, to address the court. His application was granted and he addressed the court. The learned trial Judge then reserved judgment till the 19th March, 1979.

In the meanwhile, Mr. Falade brought a motion on the same 27th February, 1979, asking for “an order for the defendant to give evidence and to call witnesses in support of his case.” The motion was heard on the 14th March, 1979 with Mr. Falade again absent, although his brief was held by another counsel. The learned trial Judge ruled as follows-

“Having considered the submissions of both counsel in this application, I agree with the points made by Mr. Popoola. In addition to this, the applicant’s affidavit supporting this application does not at all explain the reason for the absence of his counsel in court on 27/2/79, consequent upon which he refused to proceed with his case on that day. Another counsel is arguing this action (sic) for the applicant today, perhaps more light to assist this Court would have been thrown in, if Mr. Falade himself has sworn to an additional affidavit to explain his absence in court on 27/2/79. As matters now stand, I hold that this application lacks merit and it is therefore dismissed.”