Tosin Ajayi V. Oba John Ojomo & Ors (2000)

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GALADIMA, J.C.A. 

The plaintiff (herein after referred to as the respondent) commenced an action against the defendants including the present appellant in the High Court of Lagos (Coram Martins J.) for the following reliefs:

1. “A declaration that (1) the acquisition and/or (2) the revocation of his right of occupancy by Lagos State Government of his land at Opebi Village, Ikeja, covered by his registered deed of conveyance dated 7th July, 1977 and registered as No. 94 page 94 volume 1635, Lagos State is a nullity in so far, as it relates to the plaintiff’s land.
2. An order for immediate possession of the land subject-matter of the plaintiff’s deed of conveyance.
3. Mesne profit in the sum of N2,000,000 per annum with effect from 1st January, 1996 until possession is yielded up”.

The 3rd defendant (hereinafter referred to as the “appellant” filed his statement of defence, while the 1st and 2nd defendants did not.

At the trial respondent called four witnesses. The appellant did not give evidence or call any witness.

On 12/11/96 the learned trial Judge entered judgment for the respondent in the terms of claims as made save for the mesne profit which was given in the sum of N100,000.00 per annum with effect from 1st January, 1986 until possession is yielded up.

The appellant’s counsel had applied on 2/8/96 for the striking out of the action on the ground that the trial court lacked jurisdiction in that:-

(a) the action is statute-barred; and

(b) the plaintiff lacked locus standi as the land was acquired in 1974 before the plaintiff had his Deed of Conveyance in 1977.

The respondent filed a notice of preliminary objection that the application was incompetent as the issue of jurisdiction was not raised in time. After argument by counsel on this issue the trial Judge on 27/9/96 in his ruling on jurisdiction sustained the objection of the respondent and held that he had jurisdiction to determine the suit as constituted. The appellant appealed against the ruling on jurisdiction on 2/10/96; filing 5 grounds of appeal. The second amended notice of appeal, dated and filed on 1/11/99 by order of this court, contained 4 grounds of appeal.

The appellant identified 4 issues for determination as follows:-

1. “Whether the learned trial Judge had jurisdiction to determine the ownership of the land in view of the Lagos State Government Notice No. 140 (Public Land Acquisition Law Chapter 113) published in Lagos State of Nigeria Gazette No.11 Vol. 71 of 16/4/74.
2. Whether the learned trial Judge was right in closing the 3rd defendant’s case on 27/9/96, the date fixed for ruling and not for hearing.
3. Whether the learned trial Judge was right in continuing with the trial of the case whilst there were pending applications relating to the pleadings before the court.
4. Whether the trial Judge properly evaluated the evidence before him”.

The respondent for his part formulated altogether three issues for determination in the two appeals against the ruling and the final judgment.

The two issues formulated for determination in the appeal against the ruling 27/9/96 are as follows:-

1. “Whether the learned trial Judge was right when he upheld the objection of the plaintiff and held that the 3rd defendant should put up his defence and at the end of his defence raise the point of law on issue of jurisdiction.
2. Whether it is open to a defendant after parties have joined issue and that the plaintiff has closed his case to allow the defendant to isolate certain issues for determination of the whole case in the circumstances of this case.

The 3rd issue formulated by the appellant for determination in the appeal against final judgment dated 12/11/96 is as follows:-

3. “Whether the learned trial Judge was right when he held that the acquisition notice is null and void in so far as it relates to the portion of the plaintiff’s land which falls within the notice of acquisition”.

On 10/5/2000 when this appeal came up before us for hearing Kemi Pinheiro who appeared for the appellant adopted the appellant’s brief filed on 2/6/98 and urged that the appeal be allowed.

P. O. Jimoh-Lasisi learned SAN with Kunle Hassan Esq. appeared for the respondent and adopted the brief filed on 5/10/98.

Briefly, the fact of this case is that the respondent, as plaintiff by his writ of summons and amended statement of claim sued the defendants jointly and severally for declaration and possessive reliefs in respect of 1st the piece of land situate at Opebi, Ikeja – Lagos.

The Lagos State Government had acquired a large parcel of land at Opebi including the parcel of land in dispute by Lagos State of Nigeria Gazette No. 11 Volume 7 (Public Lands Acquisition Law Cap. 113) of 16/4/74.

The respondent relied as his root of title, the deed of conveyance dated 7/7/77, registered as No. 94 vol. 1635 of the Land Registry, Lagos State.

I have carefully considered the issues formulated by the parties for the determination by this court. I am of the firm view that the 3 issues raised by the respondent and the 4th issue raised by the appellant are quite apt and appropriate. I shall accordingly be guided by these issues in the determination of this appeal. The first issue is therefore that whether the learned trial Judge was right when they upheld the objection of the plaintiff and held that the 3rd defendant should put up his defence and at the end of his defence raise the point of law on issue of jurisdiction.

This issue arises in the appeal against ruling of the learned trial Judge on 27/9/96 sustaining the objection of the respondent and held that he had jurisdiction to determine the suit as constituted. He said thus:

“Application dated 2/8/96 is hereby dismissed in its entirety, the 3rd applicant should now put up his defence and at the end of his defence he would be allowed any point of law the learned Senior Advocate may wish to put up. Accordingly, I so rule”. The defence counsel when asked to proceed replied thus:

“…This matter was fixed for ruling today and not for hearing. It is after ruling that we can know whether we are proceeding to trial or not, the 3rd defendant is out of the country probably on medical ground. That is why we cannot proceed to trial today. This adjournment is sought to enable us get in touch with the 3 defendant.” (italics mine)

The learned trial Judge in his ruling of the same date refused the application for an adjournment by the appellant’s counsel and closed the appellant’s case holding, inter alia that:

“I am satisfied that the Honourable court has done its best to give the 3rd defendant the opportunity to be heard since he has refused to take advantage, this Honourable court has no alternative than to close the 3rd defendant’s case. In the circumstance, the defence of the 3rd defendant is hereby close”.

The learned trial Judge after rejecting the reasons canvassed in support of the oral application for adjournment closed the 3rd defendant case and fixed the case for address.

The appellant has submitted that he was completely shut out of trial as he had no opportunity to address the court before judgment was delivered.

On 13/9/96 the learned trial Judge adjourned the ruling on preliminary objection heard on that day and 27/9/96 for ruling. When the appellant was called upon to open his case counsel informed the court that the appellant was out of the country “probably” on medical ground since the matter was fixed for ruling and not for continuation of trial.

The issue raised here touches on the exercise of the discretion of a Judge to grant or refuse an adjournment and the correct procedure to be followed.

In Odusote v. Odusote (1971) 1 All NLR 219 at 222 the Supreme Court per Udoma JSC observed:

“The question of adjournment is a matter in the discretion of the court concerned and must depend on the facts and circumstances of each case. For, in matters of discretion, no one case can be authority for another; and the “court cannot be bound by a previous decision to exercise its discretion in a particular way, because that would be in effect putting an end to the discretion”.

Also Solanke v. Ajibola (1968) 1 All NLR 46 at 54 the Supreme Court observed:

“We must say clearly and firmly that we do not consider that a judge is obliged to grant an adjournment solely because counsel on each side ask for one. That is a factor certainly to be taken into consideration but a Judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case on a day fixed for hearing, it means further delay to other litigants who might otherwise have had their cases heard then. We would moreover, add that it is sometimes in our view, little less than scandalous that delays to a case are caused by the greater number of adjournments that on records to us have occurred in simple and straight forward cases”.

Recently in United Shipping & Trading Co. Inc. v. Agro. Allied Development Ent. Ltd., (Unreported) Appeal No. CA/L/292/98, (delivered 20/3/2000); this court, Lagos Division, per Oguntade JCA. referring to Solanke case (supra), said:

“The above statement (in Solanke) was made by the Supreme Court over thirty-years ago. Since then the situation has worsened. Cases needlessly drag because parties and their counsel now employ the court, an institution set up to deliver justice, as a vehicle to stall the realisation of the rights of their adversaries which happen to be tied up in litigation. No civilised system of court ought to accept the practice”.

I have already reproduced the relevant notes of the lower court proceedings of 13/9/96 all through. However, I observe that this suit was filed at the lower court on 29/7/91. Pleadings have been completed. Summons for directions was granted and the case proceeded to trial. In the course of the trial the plaintiff closed his case on 7/3/96. It was for the defendants to go on with their case on the 3/5/96, but on that day learned counsel Abak Esq. sought for an adjournment as the respondent was away overseas. He suggested May and the case was accordingly adjourned to 24/5/96. Before that day the defendant filed an application to amend his statement of defence. It was taken and argued and dismissed. Three other adjournments were sought thereafter at the instance of 3rd defendant (appellant).

With these numbers of adjournments at the instance of the appellant, the impression one gets is that he was not diligent. It is a useless course for a party to continuously employ tactics to delay the disposal of cases expeditiously. The case was adjourned on 3/5/96. By 28/9/96, even after series of adjournments, the appellant’s counsel was not sure of where the appellant was. Hence, the learned trial Judge was correct not to accede to further request for an adjournment as ample opportunity to hear his own side of the story has been given.

The appellants motion of 2/8/96 was brought pursuant to Order 22 of the High Court (Civil Procedure) Rules 1972. Rule 2 provides for a party to raise by his pleadings any point of law and unless the court otherwise orders any point so raised shall be disposed of by the Judge who tries the cause at or after the trial. Unless leave of court is obtained all matters should be tried by oral and documentary evidence. And after the commencement of trial it is not open to a party under the rules to isolate certain issue for determination. Cases are not to be tried in piece meal after evidence is taken especially when the matter is part-heard.

Apart from delaying tactics employed by the appellant throughout the trial at the lower court, he waited after 5 years after the service of the writ on him before raising the issue of acquisition of the land which he alleged was carried out in 1974. From the amended statement of claim, it would appear that the respondent was challenging the notice of acquisition: He claimed on page 23 of the statement of claim that the land in dispute falls outside the land covered by the Lagos State Government Notice No. 140 purporting certain lands. If so, the validity and the extent of the notice of acquisition in relation to the land in dispute can only be determined after hearing of evidence on both sides.

The determination of the dispute in relation to the land acquired by the Government and the issue of validity or otherwise of the notice of acquisition based on lack of service are issues that can only be determined after hearing evidence not on affidavit evidence as the appellant wanted the court to rely on his application.

The learned trial Judge was quite right when he upheld the objection of the respondent’s counsel and directed the defendant to put up his defence and raise the point of law at the conclusion of the trial. So also is the issue of jurisdiction. It requires evidence. It cannot be easily determined on affidavit evidence.

The second issue is repetitive of the first above. Its relevance is the case of Carlen (Nigeria) Limited v. University of Jos & Anor. (1994) 1 NWLR (Pt.323) 631 at 660. In his observations of Ogundare, JSC, said:

“I must not end this judgment without making some observations on the conduct of the defendants in this case. Parties filed and exchanged their respective pleadings and subsequently amended same. The case eventually proceeded to trial and plaintiff after calling it witnesses closed its case. The defence opened. It was at that stage the defendants brought their application praying the trial court to dismiss or strike out the action for lack of competence. At the hearing of their application they raised issues out of the purview of their prayer. The learned trial Judge should not have entertained that application but should have proceeded with the trial to conclusion”.

That is what happened in the instant case. The respondent and the appellant had joined issues on their pleadings. No where did the appellant plead facts raising issues of notice of acquisition and limitation arising from public acquisition law, which he now sought to raise in his summons for direction of 2/8/96. Respondent had closed his case and the 3rd defendant had sought several adjournments but now brought the summons. The summons is definitely misconceived and was designed merely to further halt the proceedings of the lower court.

The third issue is whether the learned trial Judge was right when he held that the acquisition is null and void in so far it relates to portion of the respondent’s land which falls within the notice of acquisition, Exhibit ‘D’. Evidence of PW2 is that no notice of acquisition was served on the respondent. This was not challenged. The purpose for which the land was acquired was not so clearly stated in Exhibit ‘D’.

Exhibit ‘D’ was issued on 9/5/74. It was not followed by the certificate of title which vests the title to the acquiring authority. If this is not done, Exhibit ‘D’ is incomplete document and cannot vest title in Lagos State Government as no certificate of title was registered at the Lands Registry at the material time. See Atunrase & Ors. v. Fed. Commissioner For Works And Housing (1975) 1 All NLR (Pt.1) 331.

In revoking a right of occupancy for public purpose or for any purpose or reason, it is the requirement of the law that the Governor should accord all those aggrieved or likely to be aggrieved by the revocation fair hearing as enshrined in section 36(1) of the 1999 Constitution: See Osho and Anor v. Foreign Finance Corp. (1991) 4 NWLR (Pt.184) 157 at 195; Bello v. The Diocessan Synod of Lagos & Ors. (1973) 3 SC 103.

No evidence is shown in the instant case of service of notice revocation on the respondent, whatsoever.

The fourth issue is whether the trial Judge properly evaluated the evidence before him. It is the submission of the learned counsel for the appellant that there was only evidence of the respondent’s witnesses before the court. It is contended that the trial Judge unilaterally closed the defence of the appellant. Similarly, that the trial Judge refused the application of the 1st and 2nd defendant to file their defence.

I have already held earlier on that the appellant was given ample opportunity to defend his case but failed to do so. (Refer to pages 76-92 also pages 128-130 of the Record).

This last issue is distilled from ground 2, of the notice of appeal dated 18/12/96. Taking a hard look at ground 2 it is a complaint against the interlocutory decision of 27/9/96. This ought to have been filed within 14 days from the date of the decision. Ground 2 though couched as a ground of law, the particulars clearly show that the complaint is against a question of fact namely that the 3rd defendant was in England on medical ground, a plea the learned trial Judge rejected when he found it very difficult to accede to the counsel’s request for adjournment as she was not very sure why the appellant was not in court.

The notice of appeal dated 12/11/96 contains ground 2 which is complaining against the decision to close the case of the appellant. It was filed on 19/12/96, a period of eighty-three days from the date when the decision was delivered.

Where a party intends to appeal against interlocutory decision in a notice of appeal against the final judgment he must apply for extension of time to seek leave to appeal against the interlocutory decision: See Tijani v. Akinwunmi (1990) 1 NWLR (Pt.125) 237; Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796.

It is to be noted however, that Order 1 rule 20(7) of the Court of Appeal Rules does not restrict the powers of the court in respect of an appeal by reason of any interlocutory order for which there has been no appeal. Also Order 3 rule 22 provides that no interlocutory order from which there has been no appeal shall operate as to bar or prejudice the court from giving decision upon the appeal as may be seen just. These provisions are clear, but the submission of learned counsel in Ajani’s case seems to suggest that he could be heard as of right because the relevant rules confer on their court the discretionary power stated therein. Be that as it may, in a situation such as in the case at hand, to my mind the appellant should at least, seek leave to argue the ground relating to such an interlocutory order or ruling. A more acceptable procedure could have been for the appellant to file an application for extension of time to seek leave and to appeal against the interlocutory ruling or order if he has valid reasons for the tardiness.

It is in view of this that ground 2 contained in the notice of appeal is considered incompetent. It is struck out. Therefore arguments on the issue of closure of the appellant’s defence does not arise. It is hereby discountenanced. Besides, I have already held the view in issue one that the learned trial Judge was right when he upheld the objection of the respondent that the appellant should put up his defence and the point of law after evidence was led. In the final analysis, this appeal fails entirety. Accordingly I hereby affirm the decision of the learned trial Judge. Costs is assessed at N3,000.00 to the respondent.

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Other Citations: (2000)LCN/0856(CA)