Salu V. Egeibon (1994)

LawGlobal-Hub Lead Judgment Report

ADIO, J.S.C

In the High Court of Justice of Ogun State of Nigeria, Sagamu Judicial Division, the appellant instituted an action against the respondent for the following reliefs:-

“1. A declaration that the plaintiff is entitled to statutory right of occupancy in respect of a piece or parcel of land at 22, Sode Street, Sagamu.

2. Perpetual injunction restraining the defendant her agents and servants from committing further acts of trespass on the said property.
3. N5,000.00 (Five thousand Naira) damages for trespass committed by the defendant on the plaintiff’s said land.”

Pleadings were duly filed and exchanged. The averments in the pleadings filed by the parties showed that the parties were adjacent neighbors, who acquired their respective pieces of land at different times from the same vendor. Each party surveyed his/her own parcel of land and had a survey plan. The dispute related to the extent or size of the parcel of land acquired by each party. The allegation of the appellant was that the respondent trespassed on his land by building a wall fence which encroached on his own land.

The hearing of the case commenced on the 21st of February, 1984, when the appellant and one of his witnesses testified. After the evidence of the 1st witness for the appellant on that day, the learned counsel for the appellant asked for an adjournment, so as to enable him call appellant’s surveyor and the appellant’s vendor after which he would close his (appellant’s) case. The learned trial Judge granted the application and adjourned further hearing of the case to the 16th day of April, 1984. When the case came up for further hearing before the learned trial Judge on the 16th day of April, 1984, the learned counsel for the appellant abandoned his intention to call appellant’s surveyor and the appellant’s vendor of the land in dispute and, contrary to expectation, closed the appellant’s case.

The learned counsel for the respondent was then requested by the learned trial Judge to open the case for the respondent. The learned counsel for the respondent informed the court that the respondent and his witnesses were not in the court and asked for an adjournment to enable him open the case of the respondent.

The learned counsel for the appellant did not oppose the application for an adjournment. The learned trial Judge refused the application and closed the case of the appellant and the case of the respondent. His reason was, inter alia, that the impression or undertaking given on the 21st February, 1984, by the learned counsel for both parties was that each party would prosecute his/her case to completion on the 16th day of April, 1984. So far, the appellant had not led evidence on the dimensions of the parcel of land which he bought from his vendor who was also the vendor of the land bought by the respondent.

The learned trial Judge thought that there were certain admissions made by the respondent in her pleading and that in any case, there was evidence before him which made the proof of the extent of the appellant’s land unnecessary. He, therefore, granted the first and the second reliefs claimed by the appellant and also awarded N2,000.00 damages to the appellant.

Dissatisfied with the judgment of the learned trial Judge, the respondent appealed against it to the Court of Appeal which allowed the appeal and set aside the judgment of the learned trial Judge. The court below remitted the case to the High Court for a re-hearing de novo before another court of equal jurisdiction in Ogun State. Costs of N200.00 were awarded in favour of the respondent. Dissatisfied with the judgment, the appellant has appealed to this court. In accordance with the rules of this court, the parties duly filed and exchanged briefs. The appellant formulated three issues for determination while the respondent formulated four issues for determination. The four issues formulated by the respondent adequately covered the second and the third issues formulated by the appellant. In my view, the first issue formulated by the appellant and the four issues formulated by the respondent, which were based on the grounds of appeal, are sufficient for the determination of this appeal.

These are as follows:-

(1) Whether the Court of Appeal had jurisdiction to hear, consider and make pronouncements on the learned Judge’s ruling which refused the respondent’s application for adjournment in one of the proceedings that led to the final judgment of 17/7/84, there being no competent appeal against the ruling.

(2) Whether the defendant was given a fair trial.

(3) Whether the Court of Appeal was right in holding that the High Court did not exercise its discretion judiciall by refusing to grant the defendant an adjournment and forcibly closing her case without giving her an opportunity of proving her case.

(4) Whether such failure by the learned trial Judge has occasioned a miscarriage of justice.