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:

“1. Who as between the 1st plaintiff/respondent and the defendant/appellant has a better title to the land in dispute.

2. Whether the defendant/appellant has a valid title in the land in dispute which he could legally transfer to one Mr. Ikenna Okonkwo who was the vendor to the parties interested/appellant in this appeal.”

In arguing the appeal, learned appellants’ Counsel relied entirely on the appellant’s brief. The brief is unnecessarily windy and verbose. Counsel submits that their constitutionally guaranteed rights to fair hearing were compromised by the lower court in more ways than one. Firstly, with as few as a total of five witnesses relied upon by parties, it took the lower court a period of almost twelve years interspaced by unjustifiably long adjournments to decide the case.

A party is entitled to a decision, by Section 33(1) of the 1979 and now Section 36 of the 1999 Constitution, within a reasonable time. Appellants’ case has not been decided within “a reasonable time” as defined by Supreme Court in Ariori v. Elemo (1983) 1 SC 13 at 24; (1983) 1 SCNLR 1, it is argued. Decisions arrived at after long delays, learned appellants’ counsel further contends, should only lead to dismissal of the plaintiff’s claims. The lower court’s judgment on 20th March, 1996, became four clear years after the defendant had closed his case on 21st January, 1992. Given these facts, the lower court had acted contrary to the Supreme Court’s decision in Chief Yakubu Kakarah & Anor. v. Chief Okere Imonikhe & Anor. (1974) 4 SC 151 at 166-167, when it found for the respondents. Learned Counsel argues that the power to grant adjournments being discretionary, it has been held in Enekebe v. Enekebe (1964) 1 All NLR 102, must be exercised judicially and judiciously. Adjournments granted that had neither been asked for by any of the parties nor on the basis of any stated reasons constitute wrongful exercise of equitable power. The case at the lower court suffered many adjournments at the instance of the respondents. It took a year for pleadings to close on 12th December, 1985, in a suit commenced on 16th November, 1984. The attitude of the plaintiffs and indeed the court made it impossible for trial to take off until five years after the suit had been commenced when on 30th March, 1989, the first witness for the plaintiff partly testified. The testimony was concluded three months later on 22nd June, 1989. It took a further two years for the respondents’ case to be closed after the testimony of their 2nd witness on 23rd May, 1991. Defence which opened on 25th September, 1991, could not be concluded because of the absence of the plaintiffs and/or their counsel until on 21st January, 1992. Thereafter, as the plaintiffs and/or their counsel kept away from court, the case suffered twenty six adjournments before the court eventually gave its judgment on 20th March, 1996. A judgment arrived at after the defendants’ right to fair hearing within a reasonable time had been compromised, urges counsel, must be set aside.

Besides the undue delay, the judgment cannot, on the basis of the pleadings and evidence of parties, survive. Appellants’ counsel argues that the court’s erroneous conclusion that plaintiffs had better title to the defendants resulted from the court’s consideration of exhibits 3 and 5. The sale to the defendant by Tiamiyu Ashamu, the head of the Ashamu family, even if the sale had proceeded without the consent of the principal members of the family, is at worst voidable. In any event, defendant it is argued had vigorously denied that the sale had proceeded in the absence of the consent of other principal members of the family. If at all the sale had so been made, it remained valid until it was set aside. It was not that Tiamiyu was an ordinary member of the family to make the sale void ab initio. The sale remained valid as same was not set aside. At the time the 1st respondent purportedly acquired title over the land, there was no such title to be transferred to him, counsel contends and relies on Ekpendu v. Erika (1959) 4 FSC 79 at 81; (1959) SCNLR 186, Esan v. Faro 12 WACA 135; Agbloe v. Sappor 12 WACA 187; Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; Bamgbose v. Jiaza (1991) 3 NWLR (Pt. 177) 64, as well as the sixth edition of the Black’s law dictionary at pages 1573 and 1574.

Lastly, under this issue, the court, it is argued, misdirected itself in finding for the respondents when no evidence had been led by them to show that the principal members of the Ashamu family had given their consent to the sale of the land in dispute to the 1st respondent.

In continuation of arguments in the appeal, learned appellants’ Counsel submits that in view of the abundant evidence of possession of the land in dispute by the defendants, his grantees and tenants and particularly the expensive development of the land by them in the full glare of the plaintiffs, the court’s failure to consider the issue of laches and acquiescence on the part of the plaintiffs was wrong. From his pleadings and the evidence led, defendants had established that he was a rent paying tenant to the respondents between 1973 and 1977; that in the same 1977, per exhibit 5, the land in dispute was sold to the defendant whence a mechanic workshop and other shops were erected; that defendant continued to exercise possession and right of ownership without any hindrance until 1984 when he was sued by the plaintiffs; that before then defendants had paid for and obtained a Lagos State Certificate of Occupancy in 1984; the 1st appellant had, as a sub grantee of the defendant, also, erected a substantial building on the land in dispute. All these facts, counsel submits, had neither been challenged nor controverted by the respondents. The trial court’s only option was to find for the appellants. Yet the court did not.

Again, respondents’ case had been a bundle of contradictions and inconsistencies incapable of being relied upon by any reasonable tribunal. 1st plaintiff had testified that he had a leasehold on the land in dispute commencing in December 1982. The witness also stated that he purchased the land on 28th September, 1977, as evidenced by exhibit 3. Under cross examination, all these crumbled as 1st plaintiff was clearly shown by exhibit 3. It was clearly unsafe for the tribunal to have relied on the plaintiff’s evidence. Had the court evaluated the evidence at its disposal, counsel concludes, a different decision would have been arrived at. Counsel urges that such evaluation be done by this court and the decision of the lower court so wrongly reached be set aside after the appeal has been allowed.

In arguing the appeal on behalf of the respondents, learned Counsel concedes the fact that the suit that brought about the appeal was commenced on 16th November, 1984 when the writ against the 2nd appellant was taken out, and that hearing commenced on 30th March, 1989, lasting till 2nd January, 1991, when the defence closed its case. Learned Counsel however contends that further hearing was stalled when defendant/appellant’s counsel failed to address the court thereby making it impossible for the respondents’ counsel to address the court too. Several chances were given to the counsel between January, 1991 to January, 1996, for the defendant/appellants’ counsel to address the court and to no avail. Respondents decided not to address the court and the court eventually adjourned and delivered its judgment on 20th March, 1996.

On the basis of parties pleadings and evidence, respondents’ counsel contends, the decision of the lower court cannot be otherwise. The defendants at the lower court had failed to give satisfactory evidence of his purchase of the land in dispute. Neither the maker of nor the witness to exhibit 5 was called to give evidence in court by the defendant. Again the maker of exhibit 5 has been shown to have instructed a solicitor to write to and request the defendant to give up possession of the land in dispute four years after the purported sale of the land by the former to the latter. Exhibit 1, counsel submits, is the letter to the defendant from Tiamiyu. Such a sale never was. In the absence of any evidence of sale, the lower court is right to have preferred plaintiffs/respondents’ case to that of the appellants.

In further arguing the appeal, learned respondents’ Counsel submits that appellants’ alleged transfer of his purported title in the land in dispute to one Ikenna Okonkwo, who subsequently assigned the same to Chief Anthony Ezeweputa, the appellant/interested party, was illegal. The transfer was made during the pendency of the instant matter at the lower court. By the doctrine of lis pendens, no title had in the circumstance devolved on such a purchaser. Counsel butresses his position by relying on the case of Osagie v. Oyeyinka (1987) 3 NWLR (Pt. 59) 144.

Lastly, learned respondents’ counsel argues that it is not fair for the appellants to complain about the prolonged delay in the trial of this suit. Most of the adjournments were at the instance of defendant and/or his counsel. After defendant had closed his case, it was for his counsel to address the court. The address was not made five years after and the court had to adjourn for judgment when counsel’s address was not forthcoming. Fair trial had been given to the appellants. The court had also fully considered all aspects of the case before it. The court’s judgment fully demonstrates this. It is not open to an appellate court to set aside such a judgment. For all the foregoing, learned respondents’ counsel has urged that the appeal be dismissed.

Now, what are the real issues in controversy in this appeal? Appellants have formulated seven issues for the determination of the appeal. It is however glaring that these issues can be compressed into two with a possible third. Issue I, II and V, all question the propriety of the adjournments the suit suffered and the effect of the prolonged adjournments on the legality of the court’s judgment. Issues III, IV and V are grudges on the findings of the lower court as to the validity of the sale of the land in dispute by Tiamiyu to the defendant. Lastly, issue No VII raises the question whether possession and acts of ownership, alone do indicate and confer title on a party that manifest such possession and acts of ownership. The respondents’ two issues seem subsumed in the second category. The appeal would be determined on the basis of the given categorizations. A preliminary pronouncement is however necessary before the three main questions raised by the appeal are addressed.

Each side of this appeal has argued a matter that was never an issue canvassed at and determined by the lower court. To that extent such arguments have raised fresh issues.

On the appellants’ part, the effect of prolonged adjournments on the decision of the trial court remains an issue that had neither been canvassed at nor pronounced upon by the lower court. In the case of respondent, it is argued that because the appellant/party interested had purchased the land in dispute from the defendants during the pendency of the instant suit, he was caught up by the doctrine of lis pendens. This argument, too, was neither raised at nor did the lower court pronounce on it.

The law is settled that an appellate court does not ordinarily allow a fresh point to be taken before it, if such a point had not been raised, tried and considered by the lower court except with leave of the court. However, where the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence needs to be led to facilitate a resolution of such a fresh issue, the fresh point would be taken and resolved by the appellate court in order to prevent obvious miscarriage of justice. In permitting such a new issue, the appellate court would, however, ensure that it draws from a ground of appeal. The latter position prevents the appellants from springing a surprise on the respondents who now prepares for the appeal on the basis of the grounds of appeal in the former’s notice. In support of the two principles see Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99; (2000) 15 NWLR (Pt. 692) 684; Kolawole v. Alberto (1989) 2 SC (Pt. III) 1, (1989) 1 NWLR (Pt. 98) 382; Ugo v. Obiekwe (1989) 2 SC (Pt. 11) 4; (1989) 1 NWLR (Pt. 99) 566 Omo v. JSC Delta State (2000) 7 SC (Pt. 11) 1; (2000) 12 NWLR (Pt. 682) 444 respectively.In the instant case, the appellants’ fresh issue on the effect of prolonged delays on the decision of the lower court, had drawn from the 9th and 10th grounds of appeal. Respondents’ arguments relating to the acquisition of title by the appellant/party interested during the pendency of the instant suit at the lower court, on the other hand, is neither predicated on a formulated issue nor can same be linked with any of the grounds of appeal in appellants’ notice thereto. Although, the issue of prolonged delay raised by the appellants is a fresh issue, because the issue had drawn from existing grounds of appeal and most importantly the resolution of the fresh issue as raised would not require further evidence, this court will enjoy the privilege of considering the issue with the intent of doing substantial justice to the issues in controversy. On the contrary, respondents’ argument having neither arisen from any of the grounds of appeal nor consequent upon any issue as formulated by either party to the appeal must be and it is accordingly discountenanced.

An examination of the record of appeal readily reveals that the decision of the lower court had evolved after a prolonged delay. It is scandalous to say the least that such a matter had taken almost twelve years to be determined. This is a justice service delivery, at the court of trial, in a society where the average life expectancy has been put at fifty years. Neither party to the litigation nor the court that resolved the conflict between these parties had come through clean in the disgraceful shortcoming. The defendant and by extension the appellant/party interested, was as if not more guilty than either the respondents or the court as to the delay the matter had suffered before it was determined. Where a matter had not been determined within a reasonable time as required by section 36 of the Constitution, and the delay is equally attributable to the commission or omission of the party complaining, public policy would disentitle such a complainant from succeeding in his complaints. It does not truly lie in the mouth of such a culprit or any person who draws title through him to say that a delay perpetrated by him or in conjunction with other litigants or even with the complicity of the court should form the basis of overturning a decision arrived at inspite of any delay. It would be most inequitable given the peculiar circumstances of the instant case to allow appellants to reap from a tardiness that had resulted predominantly from their own deliberate lapses. See Kaiyaoja v. Egunla (1974) 12 SC 55; Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257.Resultantly, all the issues drawn from these grounds on the effect of the prolonged adjournments and cumulative delay suffered by the instant matter before it was determined by the lower court, must and do hereby fail. Such issues are accordingly resolved against the appellants.

Appellants have contended that respondents did not make out a case for the lower court to have found for them. Firstly, a sale by the head of the family without the approval of other principal members of the family, being voidable, endures until voided. Secondly, the respondents had not proved, too, that the sale of the land in dispute to the 1st plaintiff/respondent had proceeded on the consent of all principal members of the Ashamu family. Lastly, learned appellants’ Counsel had argued lustily, that in addition to exhibit 5 which signified the fact of sale of the land in dispute to them by the Ashamu family, respondents have not explained away the very numerous acts of possession and ownership displayed by the defendants.

It must be stressed that a case is about the totality of the pleadings and evidence led by parties and the decision arrived at on the basis of same. The evidence alluded to by respondents’ counsel in showing that the purported sale of the disputed land could not have been a lawful one is overwhelming. It is a common ground to both sides to this appeal that title to a piece of family land under the Yoruba land tenure system can only be transferred to a purchaser by the head of the land owning family and with the approval and consent of the principal members of the family. A sale by the family head without the consent of the other principal members of the family is, in law, voidable. Appellants’ contention here is that the sale had not been voided. It is however in evidence that even Bale Tiamiyu the head of the Ashamu family who purportedly sold the land in dispute to the appellant, by exhibit I, requested the appellants to give up possession of the land. This had come after the purported sale. The same Tiamiyu subsequently joined other principal members by exhibit 3, to sell the same land in dispute to the 1st respondent. Exhibit 3 had come subsequent to and inspite of exhibit 5, the evidence of sale to the defendant. What better evidence does a court require to conclude that even if exhibit 5 signified a voidable sale to the defendant, Tiamiyu had resiled out of such a sale that had proceeded without the necessary approval of those others but whose blessings had subsequently been given in exhibit 3? The natural inference is that the voidable sale to the defendant had been jettisoned by the Ashamu family. Instead, the family had chosen to transfer title to the 1st respondent in the subsequent sale. Again, because neither the maker of exhibit 5, the earlier sale to the appellants, nor the witness to the making of the document had been called to testify, the preference of the trial court of the evidence of the respondents instead of that of the defendant cannot be faulted. The whole exercise is one as to the evaluation of evidence and ascribing value to such evidence. The trial court’s primary duty has always been to discharge that burden. The appellate court would only interfere where the trial court has been shown to have relied on wrong criteria or irrelevant factors in its preference of the story of one side to that of the other. The appellate court has no business interfering with the trial court’s conclusion if same is based on a thorough and lawful evaluation. See Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616 SC; Akeredolu v. Akinremi (No.3) (1989) NWLR (Pt. 108) 164 SC. Appellants’ argument that the purported sale to the defendants had outlived the subsequent sale to the respondents cannot, in the light of the evidence as correctly evaluated by the lower court, be correct. The unathorized sale to the defendants had infact been voided by the conduct of the principal members of the Ashamu family, see exhibit 1 and exhibit 3, and the coast was clear for the same piece of land to be sold to the 1st respondent by those in whom title to the land inhered. Appellants’ issues in this regard as well as the grounds of appeal from which such issues are distilled have consequently failed. The issues are resolved against the appellants.

One last comment. Appellants’ argument also is that because the defendant had been in possession and had also put others in possession of the land in dispute he was, given these various acts, better entitled to the land in dispute. Nothing short of establishing exclusive possession against all others by the defendants would have frustrated the respondents’ claim to title. See: Adeshoye v. Shiwoniku 14 WACA 86. Appellants have also argued that respondents had stood by when their land, even if same had not been established to have been sold to the defendant, was taken possession of and built upon without respondents’ disapproval. The respondents, it is argued are disentitled by the doctrines of laches and acquiescence from complaining.

Both parties in this matter rely on a common root of title. It is trite that any of the two who show a better title would succeed. The respondents having established a valid transfer of the title in respect of the land against a purported and invalid transfer to the defendant by a common source are better entitled to the ownership of the land in dispute. See Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 at 444; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 and Airoe Construction and Civil Engineering Company Ltd. v. University of Benin (1985) 1 NWLR (Pt. 2) 287.It is too late in the day for the appellants to raise the issue of laches and acquiescence as armour against the subduing arguments proffered by the respondents. Any such defence must be specifically pleaded and proved by a party, who seeks to rely on it. The appellants must fail here having not done so at the lower court. See Iheanacho v. Ejiogu (1995) 4 NWLR (Pt. 389) 324 and Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 SC. From all the foregoing, the instant appeal is without merit, with all the issues for determination having been resolved against the appellants, the decision of the lower court is hereby affirmed. Accordingly, the appeal is hereby dismissed with cost assessed at N10,000.00 in favour of the respondents.ONNOGHEN, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Muhammad, JCA, just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

The fact of the case have been fully stated in the lead judgment, I therefore, do not intend to repeat them here except as may be needed to emphasize the point(s) being made.

There are certain basic criteria or attributes of fair hearing. They include:

(i) that the court shall hear both sides not only in the case, but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case;

(ii) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned;

(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and

(iv) that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

Fair hearing as enshrined in Section