3PLR – ALHAJI AMINU JUBRILLAH ABDULLAHI & ORS V. MRS. CHRISTIANA IYABO ADETUTU
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR
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ALHAJI AMINU JUBRILLAH ABDULLAHI & ORS
V.
MRS. CHRISTIANA IYABO ADETUTU
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 4TH DAY OF MAY, 2012
CA/L/425/2002
OTHER CITATIONS
LN-e-LR/2012/8 (CA)
(2012)LPELR -CA/L/425/2002
BEFORE THEIR LORDSHIPS
HELEN MORONKEJI OGUNWUMIJU, JCA
IBRAHIM MOHAMMED MUSA SAULAWA, JCA
MOHAMMED AMBI-USI DANJUMA, JCA
BETWEEN
- ALHAJI AMINU JUBRILLAH ABDULLAHI
- ALHAJI JUNAIDU JUBRILLAH ABDULLAH
- HADJIA KHADIJAT IBRAHIM (JUBRILLAH ABDULLAHI)
- RASHEED ADETOKUNBO
- JAMES OJO – Appellants
AND
MRS. CHRISTIANA IYABO ADETUTU Respondents
ORIGINATING STATE
Lagos State: High Court of (Akerele-Ayeni, J- Presiding)
MAIN ISSUES
REAL ESTATE/LAND LAW – TITLE TO LAND: – Where there are two persons on the land each asserting that the land is his and each doing something in assertion of the right of possession – When one of them is in actual possession and the other is not – Whether the person deemed to be in actual possession is the person who has title is in possession and the other is a trespasser – Whether a claimant in possession is deemed to have a better title against other adverse claimants
REAL ESTATE/LAND LAW: – Effect of non-registration of a registrable instrument – Determination of person in possession of land – Relevant considerations
COMMERCIAL LAW – CONTRACT – DAMAGES: – Special damages – Meaning – As damages which are normally awarded regarding any consequences reasonably and probably resulting from the breach or violation complained of – Whether essentially, special damages denote pecuniary losses which usually crystallize in terms of cash and values before trial – What claimant must do to succeed in a claim for special damages
CONSTITUTIONAL LAW– FAIR HEARING: – Nature of – Test for determining – What the rule of fair hearing is – Whether a party who had the ample opportunity of being heard, but failed to utilize same can justifiably complain of breach – Whether the rule of fair hearing is not a technical doctrine but one of substance – Whether the relevant question is not whether injustice had been done because of lack of fair hearing but whether a party who is entitled to be heard before deciding had in fact been given the opportunity of hearing
CHILDREN AND WOMEN LAW: Women and Real Estate – Protection of interest over land – Relevant considerations
PRACTICE AND PROCEDURE – APPEAL: – Need for issues formulated in a brief of argument to be distilled from specific grounds of a notice of appeal, otherwise they should be deemed at large, and liable to be discountenanced – Attitude of court to drafting skills
PRACTICE AND PROCEDURE – EVIDENCE – VISIT TO LOCUS IN QUO: – Purpose – Resorted to where the inspection of a property which cannot be moved into court, either because it is land or property attached thereto, or because of the peculiar nature thereof is of material significance to the determination of the case before it – Need for the court to follow the procedures laid down in section 77 of the Evidence Act, which are substantially similar to sections 207 and 243 of the Criminal Procedure Act and the Criminal Procedure Code, respectively – Whether the purpose of a visit to the locus in quo is to clear doubts which might have arisen as a result of the conflicting evidence of both sides as to the existence or non existence of a state of facts relating to a physical object, and such a conflict can be resolved by visualizing the object, the res, the material thing, the scene of the incident of the property in issue – Whether where there exists conflicting evidence, it is permissible for the Learned Trial Judge to apply the courts’ visual senses in aid of its sense of hearing by visiting the locus in quo to resolve the conflict
PRACTICE AND PROCEDURE – JURISDICTION: – Whether court has jurisdiction to make a valid declaratory order against a person who was not a party to a suit before the court
WORDS AND PHRASES: – ‘Locus’ – ‘Locus in quo’
MAIN JUDGMENT
- M. M. SAULAWA, J.C.A. (DELIVERING THE LEADING JUDGMENT):
This is an appeal against the judgment of the High Court of Lagos State, which was delivered on March 8, 2000 in consolidated suits. Nos.ID/216/93 and ID/855/93 between the respective parties. Dissatisfied with the said judgments, the Appellants filed the notices of appeal thereof, dated 01/6/2000.
However, with the leave of court granted on 30/6/09, the Appellants filed an amended notice of appeal on 07/7/09.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL:
It is evident from the records of appeal, that on 29/01/93 one Alhaji Jubrilla Abdullahi had filed a suit No. ID/216/93 in the High Court of Lagos State, Ikeja Judicial Division against Mrs. Iyabo Adetutu and Alhaji Tijani Sanni clamming the reliefs:
- a) Declaration that: the Plaintiff is the person entitled to Statutory Right of Occupancy in respect of a land situate, lying and being at Ontipetesi, Idimango, Agege, Lagos State which is more particularly described and delineated on Survey Plan No. AB/LA/86/311 prepared by I.A. Babalola, Esq. Licensed Surveyor on the 23rd day of September, 1986.
- b) A sum of N500,000.00 (Five Hundred Thousand Naira) being special and general damages for trespass being committed by the Defendants who recently have been harassing and disturbing the possession, occupation, and control of the vast area of land by the Plaintiff.
- c) Perpetual injunction restraining the Defendants, their servants, agents and/or privies from continuing with their acts of molestation and harassment of the Defendants, their servants, agents and/or privies of the land in dispute.
However, in the course of the pendency of the said suit No. ID/216/93, the Defendant therein filed a suit No. ID/855/93, on 16/4/93 claiming the following reliefs against the present 4th and 5th Appellants:
(1) a declaration that the Plaintiff is entitled to the statutory right of occupancy in respect of the land situate lying and being at Onipetesi, Agege, Lagos, which is delineated on Plan No. CD. 52/71 dated 2nd March, 1971 by Adetokunbo Bisiriyu dated 28th September, 1971 and registered as 55/55/1969.
(2) the sum of N750,000.00 being special and general damages for the trespass to the land committed by the Defendants and for the damage to and destruction of the Plaintiff’s plantation, cash crops, buildings, machineries, generator, wall-fence and iron gates on the land and;
(3) perpetual injunction restraining the Defendants, their servants agents or privies from any further act of trespass on the said land.
On 20/6/95, the two suits in question were consolidated by the Hon. Justice Olorunnibe, but later transferred to the Hon. Justice Oni Akerele-Ayeni. The two consolidated suits proceeded to trial. At the conclusion of which, judgments were delivered on 08/3/2000 by Akerele-Ayeni, J. Regarding suit No. ID/855/93, Judgment was delivered in favour of the Respondent (Plaintiff) to the following effect:
In all, I am satisfied that the Plaintiff in suit No. ID/855/93 has established her title to the land in dispute by credible evidence of numerous acts of ownership and possession over a period of time as well as documentary evidence of title. I hold that exhibit D8 which was not registered cannot defect the interest of the Plaintiff whom I hold to be a bonafide purchaser for value of the interest of any of the Defendants.
I accordingly enter judgment in suit No. ID/055/99 (sic) in favour of the Plaintiffs against the 1st and 2nd Defendants and the Plaintiff in suit No. ID/216/93 jointly and severally as follows
1) A Declaration that the Plaintiff is entitled to the Statutory Right of occupancy in respect of the land situated lying and being at Onipetesi in Agege Lagos, which is delineated on plan No. CD/52/7/1977 annexed to the Deed of conveyance granted to the Plaintiff by Adetokunbo Bisiriyu dated 28th September, 1971 and registered as 55/55/1369.
2) The sum of N600, 00 is awarded against the Defendants in suit No. ID/855/93 and the Plaintiff in Suit No. ID/216/93 jointly and severally being special damages suffered by the Plaintiff as a result of the wanton destruction of her properties.
3) N75, 000 being general damages for the trespass to the land in dispute.
Contrariwise, regarding the second suit No. ID/216/93, the lower court came to the conclusion in the judgment thereof thus:
Consequently upon a careful review of the evidence led in support of the Plaintiff claim and for the reason adduced in respect of ID/855/93 which is adopted and incorporated herein in respect of ID/276/93, the Plaintiff’s claim fails and same is dismissed.
The Defendant counter-claimant, on the other hand, has through her evidence and that of her witnesses which I have found to be credible established her counterclaim against the Plaintiff. I adopted for this purpose the reasoning stated in the judgment in ID/855/99 and incorporate same accordingly. Consequently, judgment is hereby entered for Defendant/Counter Claim.
As alluded to above, the instant appeal is against the judgments of the lower court in question. Both parties have filed and served their respective briefs of argument. The Appellants’ amended brief was filed on 07/7/09, pursuant to court’s order granted on 30/06/09. The Respondent’s amended brief, on the other hand, was filed on 11/02/10 pursuant to court’s order, granted on 10/02/10. On 08/02/12, when the appeal last came up for hearing, both learned counsel to the parties adopted the argument contained in their respective briefs of argument. Thus resulting in reserving the appeal for delivery of judgment. The Appellants’ amended brief spans a total of thirty pages. At pages 5 and 5 thereof, a total of six issues have so far been formulated for determination, viz:
(1) Whether the Appellants were given a fair hearing as provided for in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 in the circumstances of the case.
(2) Whether the Learned Trial Judge was right in law when she granted the reliefs in suit No. ID/588/93 against the original 1st Defendant (now deceased) who was not a party to that suit.
(3) Whether the failure of the Learned Trial judge to visit the locus in quo does not occasion a miscarriage of justice to the Appellants especially in the face of the irreconcilable conflicting claims of physical possession by the parties.
(4) Whether the interest conveyed in exhibits D8 to the original 1st Appellant (DECEASED), was void because of the discrepancy said to have been noticed in the said document and the survey plan attached thereto.
(5) Whether the Learned Trial judge correctly evaluated and appraised the facts in resolving the issue of title in favour of the Respondent.
(6) Whether the Learned Trial judge was right in her reasoning for the award of damage to the Respondent.
On issue No. 1, it was submitted, without much ado, that the lower court had erred in law when it conducted the trial in such a manner that did not take cognizance of the appellants’ right to fair hearing, protected under section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
On this note, it was alleged that on 06/7/99 the original 1st Appellant was forced to conduct the cross-examination of pw4 without the opportunity to utilize the services of his solicitor (see pages 355 – 366 of the Record). It was submitted, that despite the retention of services of their counsel, the 1st Appellant and all the Appellants were put under pressure to conduct their case at the expense of their solicitor.
On 13/7/99, the Appellants were allegedly put under pressure to cross-examine the pw1 (sic) before the appearance of their counsel. It was contended, that in the face of these clear cases of pressure on the Appellants to conduct their case to the exclusion of their counsel, it cannot be said that they have been given fair hearing. See AU DEDUWA & SONS v. EMMANUEL OKOROMADU (1976) 9 & 10 SC 329 at 353 – 356; MILITARY GOVERNOR, IMO STATE v. NWAUWA (1997) 2 NWLR (pt.490).
The court has been urged to allow the appeal on this issue.
On issue No. 2, it was submitted, inter alia, that the lower court erred in law when it awarded the reliefs in suit No. ID/855/93 against the 1st original Appellant who was not a party to that suit. It was thus contended that a court cannot grant a relief, especially declaration of title to land, against a non-party to a suit. See EZINWA v. AGU (2004) 3 NWLR (Pt.861) 431, 441.
The court has been urged to allow the appeal and set aside the judgment of the lower court.
On issue No. 3, it was submitted, inter alia, that the lower court’s failure to visit the locus in quo has occasioned a miscarriage of justice to the Appellants.
There were conflicting claims of physical possession by the parties at the trial. The 1st Appellant’s case is that he bought the land and built a bungalow thereon. On the other hand, the Respondent denied she had a poultry house etc on the land. These conflicting claims allegedly required the lower court to visit the land, to ascertain the truth about who was actually in possession. See OBI & ORS VS. MBIONWU & ORS (2002) 14 SCM 189 at 205
It was contended, that the lower court’s failure (to visit the locus in quo) has occasioned a substantial miscarriage of justice to the Appellants, who were really in physical possession of the land in dispute. The court has been urged to allow the appeal, and set aside the judgment.
On issue No. 4, it was submitted that the lower court had erred in law when it held that the discrepancy as to date in the survey plan made ineffective the original 1st Appellant’s conveyance Exhibit D8. See section 2 of the Land Instruments Registration Laws of Lagos State.
It was contended, that an instrument is said to be duly executed when all acts necessary to render it complete and give it validity have been performed.
see ADELAJA vs. ALADE (1999) 6 NWLR (pt. 608) 544 at 558.
Exhibit D8 was allegedly duly signed, sealed and delivered by the vendor, (Bisiyiru Adetokunbo Ijesha) to Alhaji Jibrilla Abdullahi, and attested to by witnesses. The piece of evidence of 1st Appellant that the survey plan was made in 1969, but signed in 1986, was not controverted throughout the trial. That piece of evidence allegedly stands out as the true state of facts relating to the survey plan in issue. That, it’s a trite law, that evidence not challenged or controverted is deemed to be the truth, and the court is entitled to rely on same. See BURNOR v. KEHINDE (2007) 1 NWLR (pt.1016) 582; HONDA v. GLOBE MOTORS (2005) 14 NWLR (pt.945) 273; BAMAYI v. STATE (2003) 17 NWLR (Pt.848) 47.
The court has been urged to hold that Exhibit D8 is valid as an instrument affecting land, and rely on it as sufficient document in proof of title of the Appellants with respect to the land in dispute. see IDUNDUN vs. OKUMAGBA (1976) 9 – 10 SC 227.
On issue No. 5, it was submitted, that the lower court erred in law when it failed to properly evaluate the facts of the case. If it had done so, it would have had no difficulty in resolving the issue of title in favour of the original Appellant. It was contended that the DW1, (Rasheed Adetokunbo) identified and confirmed his father’s signature on exhibits D2, D3, D4 and D8, but said that the purported signature on exhibit p6 (tendered by the Respondent) was not his father’s. That the signatures on exhibits D6, D7 and D8 were the same, and that he was present when exhibit D8 was executed by his father. It was alleged, that the lower court did not evaluate the facts (of the case) before it.
The court has been urged to interfere with the finding of the lower court, as same is perverse and it runs counter to the uncontradicted evidence of DW1 on account of exhibit D8. See ADELEKE V. IYANA (2008) 8 SCM 29 AT 38; SOLANA V. OLUBANJO & ORS (1975) 6 SC 55 AT 62; ADENIE V. OLUDE (2002) 11 NSCQR AT 654; ONUOHA V. STATE (1989) 2 NWLR; GAJI V. PAYE (2003) 30 WRN 151 AT 157.
The court has been urged to allow the appeal, set aside the judgment of the lower court and enter judgment for the Appellants.
On the issue No. 6, it was submitted, that there was no basis for the award of damages by the lower court, having regard to the discrepancy in the Respondents pleadings and evidence at the trial. Reference was made to paragraphs 5 & 6 of the Respondent’s pleadings, as well as paragraphs 12 & 12 of the amended statement of claim in suit No. ID/855/93. It was contended, that from those pleading, as at 10/3/96, during the pendency of the suit, there was no damage done to 1st Respondent’s properties.
It was contended, that evidence which is at variance with pleadings goes to no issue. See ADEMESO VS. OKORO (2005) 30 WRN 179 at 191 lines 5 – 20; WOLUNCHEM VS. GUDI (1981) NSCC (vol. 12) 214 at 227.
The court has been urged to allow the appeal, and set aside the awards made to the 1st Respondent by the trial court.
On the other hand, four issues have been raised in the 1st Respondent’s brief to wit –
ISSUE NO. 1 (Based on Grounds 2, 3, 6 & 7)
Whether in the light of the facts shown in the documents exhibited at trial and the actions of the Respondent, the respondent cannot be said to have shown or proved a better title to the land in dispute than the Appellants.
ISSUE NO. 2 (Based on Ground 4)
Whether the Respondent is entitled to judgment and the other relief claimed and granted.
ISSUE NO. 3 (Based on Ground 1)
Whether in the light of the facts of the proceedings, all parties were not given opportunity to be heard.
ISSUE NO. 4 (Based on Ground 5)
Whether non-visit to the locus in quo is fatal.
On issue No. 1, it was submitted, inter alia, that the 1st Respondent availed herself of at least three of the ways of proving title to land as laid down in IDUNDUN VS. OKUMAGBA (1976) 9 & 10 SC 227. It was contended that by the combined evidence of the 1st Respondent, pw1, pw2, pw3 & pw4, the 1st Respondent had also established that she exercised ownership and possession of the land, (as evidenced by exhibits p1, p2, p3, p4, p6, p7, p8 p8A – p8L, 9, 9A – 9D, p13, p14 & p15, etc) in compliance with the 3rd & 4th modes of proof of title to land as laid down in IDUNDUN VS. OKUMAGBA’S case (supra).
Contrariwise, it was submitted, that the Appellants did not make out any case sufficient to sustain their claims. That, exhibit D8 was not registered and therefore inadmissible to prove title to the land in dispute. See Section 15 of the Land Instruments Registration Law, Lagos State; OREDOLA OKOYA TRADING CO. VS. AG KWARA STATE (1992) 7 NWLR (pt. 254) 412: KODIRINYE VS. ODU (1936) 12 WACA 336: AKINOLA VS. OUWO (1962) 1 SC NLR 352: ELIAS VS. DISU (1962) 1 ALL NLR 214: OMOREDE VS. ELEAZU (1991) 4 NWLR (pt. 183) 65: GEORGE VS. UBA LTD (1972) 8 – 9 SC 264; NAYA VS. WEY (1961) 1 ALL NLR 123.
The court is urged to dismiss the appeal on the 1st issue.
On the 2nd issue, it’s submitted, that the Appellants’ conclusion at page 11, lines 42 to 46 of their brief, is without foundation. That it’s obvious that the two suits in question were contested in the court below, and that the judgment and reliefs awarded were based on the claims of the parties. That, even if the 1st Appellant was not a party to suit No. ID/855/93, he was a party to suit No. ID/216/93, wherein the Respondent was the claimant.
The court is urged to dismiss the appeal on the basis of the 2nd issue.
Regarding the 3rd issue, it was submitted that in order to determine whether the Appellants were given a fair hearing, the totality of the record of proceedings must be resorted to. Reference was made to various dates on which the Appellants’ counsel failed to appear in court. In particular, on 06/7/99 (pages 364 – 367 of the Record), both the 4th Appellant and Respondent were in court. However, the Appellants’ counsel was neither in court nor sent a letter explaining his absence. The case was stood down. At 9.50 am, the matter was recalled and preceded with pw4. The 1st Appellant retorted thus: “My lawyer is downstairs but I will Cross-examine the witness”. And he did so. See page 356 of the Record.
According to the Respondent, no force or pressure was applied to the 1st Appellant to Cross-examine the pw4. The 1st Appellant did not ask for an adjournment. He also knew where his lawyer was but did not elect to go and call him. He was not threatened by the court. The Appellants and their counsel perfected the art of deliberately dribbling, dodging, delaying and frustrating the lower court and Respondent by alternating their appearances and/or absences in court. Thus, the allegation that their right to fair hearing was contravened is misconceived and in bad faith. See KANO TEXTILE PRINTERS PLC VS. GLOEDE & HOFF NIG. LTD (2002) 7 WRN 78 at 88.
The court has been urged to resolve issue No. 3 against the Appellants.
On issue No. 4, it was submitted, inter alia, that by the Respondent’s evidence, the Appellants’ forcible entry upon the land in dispute coupled with the destruction of the Respondent’s buildings generator, poultry farm, security house, plucking house, feed mill etc, more than satisfies the definition of trespass by the Appellants. See ADENIRAN VS. ALAO (2002) 4 WRN 1 at 9; HASSAN VS. JAURO (2002) 25 WRN 18 at 22. On the 4th issue, the appeal is allegedly unmeritorious and ought to be dismissed.
On the whole, the court has been urged to dismiss the appeal with substantial cost, and accordingly uphold the judgment of the lower court.
I have amply considered the nature and circumstances surrounding the case, the argument of the learned counsel contained in the respective briefs thereof vis-a-vis the record of appeal, as a whole. In the course of determining this appeal, I have discovered that none of the six issues formulated in the Appellants’ amended brief has been distilled from the grounds of the notice of appeal. Undoubtedly, this is a typical example of a bad drafting skill.
As a matter of general principle, issues formulated in a brief of argument must be distilled from specific grounds of a notice of appeal, otherwise, they should be deemed at large, and liable to be discountenanced. However, unlike the Appellants, the Respondent has commendably distilled the four issues formulated in the brief thereof from specific grounds of appeal, in strict compliance with the general principle alluded to above. I have nevertheless deemed it expedient to determine the appeal on the basis of the issues raised in the Appellant’s brief.
ISSUE NO. 1:
The issue No. 1 formulated in the Appellants’ brief raises the vexed question of whether the Appellants were accorded a fair hearing, as provided under section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It was alleged by the Appellants that the 1st Appellant was forced to conduct the Cross-examination of the PW4 –
“as he was not given an opportunity to utilize the services of his solicitor, while the other Appellants were not given an opportunity at all to Cross-examine the said witness.”
It is evident on the face of the Record (pages 364 – 356), that on 06/7/99, when the case came up for continuation of hearing before the court below, only the 1st Appellant and Respondent and Respondent’s counsel were present. The other Appellants and counsel thereof were absent. The court’s record, at page 364 confirms this fact –
“Parties plaintiff and 2nd Defendant in suit ID/855/93 present.
Other (sic) absent. 1st Defendant present in ID/216/99 and also absent.
Respondent – Chief Bayo Kehinde with Mr. Larry Okojie and Mr. Tunde Sanni for plaintiff in ID/855/93 and Defendant in 216.
The Respondents learned counsel was recorded to have submitted thus:
“Kehinde – the Defendant (sic) have gone back to their if -not being present. We are ready to proceed. We are presenting our witnesses for Cross-examination but the Defendants are not here to cross-examine.”
To which the court ruled thus:
“Court: I will continue with the next witness. But if the witnesses are discharged they will no longer be available for Cross-examination
Court: Case is stood down.”
Later at 9.5 am, when the case was recalled, the pw4 Mr. Julius Abiodun Fasakin proceeded to testify. At the conclusion of the examination in-Chief of pw4, the Respondents counsel stated thus:
“Kehinde: that is all for the witness. The plaintiff is (sic) the other case is here if he wishes to Cross-examine”.
To which the 1st Appellant responded thus:
Alhaji Jubriall Abdullai – My lawyer is downstairs but I will Cross-examine the witness”.
The 1st Appellant did, in fact, cross-examine the pw4. However, regarding the other remaining witnesses, the Respondent’s counsel informed the court that his other witnesses who earlier testified were in court for cross-examination.
However, the 1st Appellant responded thus:
“Alhaji: I was not here when they gave evidence. So I am not in a position to Cross-examine them”.
The Respondents’ counsel demanded for the cost of the day, if the 1st Appellant was not prepared to cross-examine the witnesses in question to which the 1st Appellant objected. However, the lower court in its wisdom ordered thus:
Court: The cost of N250 per witness is awarded i.e N100 cost (sic). This cost shall be paid personally by the counsel to the Defendants. The Defendants have shown that he desires to have his case heard. It is said (sic) and unfair that a counsel who took dates for trial should fail to meet his obligation to his client. Mr. Adefala shall pay N1000. Case is adj. to 8th of July, 1999.
On the said July, 8 the Appellants’ counsel not only did appear in court, but also cross-examined the pw1, pw2 & pw3. The pw1 was (further) cross-examined by the Appellants’ counsel on 13/7/99. The Respondent was equally cross-examined by the Appellants’ counsel on 14/10/99.
Having critically, albeit dispassionately, perused the entire record of appeal, I am unable to appreciate, let alone uphold, the Appellants’ learned counsel’s argument that the 1st Appellant was denied fair hearing at the trial of the instant case. It is so obvious from the record, that when the matter came up on 05/5/99 for continuation of trial, Mr. Okoji, the Respondent’s counsel informed the lower court that his witnesses were not in court. Then Mr. Adefala, the Appellants’ counsel, specifically suggested for 06/7/99 for continuation of trial. The court accordingly adjourned the matter to the 5th & 8th July, 1999 for continuation of trial.
Curiously, however, for reasons best known thereto, the Appellants’ counsel failed to appear in court on the said 06/7/99. Not surprisingly, the 1st Appellant took it upon himself to cross-examine the pw4 (in spite of the absence of the counsel thereof), thus:
“Alhaji Jubrillah Abdullai: my lawyer is downstairs but I will cross-examine the witness.”
Thus, from the circumstances surrounding the case, as evidently reflected in the record of appeal, there is no justification, whatsoever, for the allegation that the Appellants’ right to fair hearing under section 36(1) of the 1999 Constitution has been curtailed or breached upon.
It’s instructive, that by virtue of the provision of section 35(1) of the 1999 Constitution as amended, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
It’s trite that, the test for determining fair hearing is rather an objective one. Thus, what constitutes a fair hearing entirely depends upon the circumstances of each particular case or appeal. See UKWUYOK VS. OGBYLU (2010) 5 NWLR (pt. 1187) 316 at 338 paragraphs A – B.
By virtue of the fundamental and far-reaching nature thereof, the issue of fair hearing goes beyond a mere rhetorical question. It is most certainly a fundamental question. This is arguably so, because where the issue of breach of fair hearing is raised and successfully upheld by the court, the entire proceedings embarked upon by the lower court ought to be declared null, void and of no effect whatsoever. The yardstick for determining fair hearing is not whether any injustice has in fact been occasioned on any party due to want of hearing. But, rather, it’s whether an opportunity of hearing has in fact been accorded the parties entitled thereto. See ATTORNEY GENERAL OYO STATE (1987) 1 NWLR (Pt.53) 678; FED. CIVIL SERVICE COMMISION v. LAOYE (1989) 2 NWLR (pt.106) 652; UBN PLC v. ASTRA BUILDING (WA) LTD (2010) ALL FWLR (Pt.518) 865; (2010) 2 SCNJ (2012) ALL FWLR (Pt.607) 726 at 738 – 739 F -A.
In the instant case, there is every cogent and justifiable reason for me to hold, that the 1st Appellant’s right to fair hearing, cherishingly enshrined under section 35(1) of the 1999 Constitution (supra), has not in any way been breached upon by the lower court in the course of the trial of the cases in question. As copiously alluded to above, the 1st Appellant, in the absence of his counsel, opted to cross-examine the pw4 without any prompting or coercion by the lower court.
His counsel prompted the lower court to adjourn the matter specifically to 06/7/09 for continuation of trial. Yet, the said counsel for reason best known thereto failed to turn up on that date. The principle has cherishingly been settled, that a party who had the ample opportunity of being heard, but failed to utilize same cannot justifiably complain of breach of fundamental right to fair hearing. See OMO V. JUDICIAL SERVICE COMMISSION DELTA STATE (2000) FWLR (PT. 20) 676; (2000) 12 NWLR (PT. 682) 444; OKOYE V. NIG. CONST. & FURNITURE CO. LTD (1991) 6 NWLR (PT. 199) 501; S & D CONST. CO. LTD V. AYOKU (2011) ALL FWLR (PT.604) SC 1 AT 16 D-E.
I think, there is a need to also reiterate that the issue of fair hearing is not a cut and dry doctrine that could be resorted [to] by parties to suit at their whims and caprices. See OLOWU V. THE NIG. NAVY (2012) ALL FWLR (PT.608) 875 at 889 – 890 G-A.
Thus, the issue No. 1 is hereby answered in the affirmative and accordingly resolved against the Appellants.
ISSUE NO. 2:
The 2nd issue raises the question of whether the lower court was right in law, when it granted the reliefs in suit No. ID/588/93 against the original 1st defendant (now deceased) who was not a party to that suit. The instant issue is regarding the finding of and declaratory relief granted by the lower court at page 441 of the record thus:
I accordingly enter judgment in suit No. ID/866/93 in favour of the plaintiff against the 1st and 2nd Defendants and the plaintiff in suit No. ID/216/93 jointly and severally as follows:
(1) A declaration that the plaintiff is entitled to the statutory right of occupancy in respect of the land being at Onipetesi in Agege, Lagos, which is delineated on plan No. ID/52/77 …
(2) The sum of N600,000 is awarded against the Defendants in suit No. ID/855/93 and the plaintiff in Suit No. ID/216/93 jointly and severally.
(3) N750,000 being general damages.
It is evident from the Record, that the original parties to suit No. ID/216/93 are as follows:
SUIT NO. ID/216/93
BETWEEN:
ALHAJI JUBRILU, ABDULAI – PLAINTIFF
And
(1) MRS. IYABO ADETUTU
(2) ALHAJI TIJANI SANNI -DEFENDANTS
See page 1 (Appendix A) of the Record.
On the other hand, the original parties to the second Suit No. ID/855/93, as contained at page 14 of the Record, are as follows:
“SUIT NO.ID/855/93
BETWEEN:
MRS. CHRISTIANA IYABO ADETUTU – PLAINTIFF(S)
AND
1. RASHEED ADETOKUNBO
2. JAMES OJO – DEFENDANTS”
Undoubtedly, the present 1st Appellant was never a party to the second suit No. ID/855/93 in question.
It is evident from the Record, that the findings of the lower court from pages 429 to 442 relate exclusively to Suit No. ID/855/93 in question. As stated above, the 1st Appellant was never a party to that suit. That being the case, therefore, it’s erroneous for the lower court to have found, as it did at pages 441 – 442 of the Record against the 1st Appellant. The principle has long been settled, that a court is deprived of jurisdiction to make a valid declaratory order against a person who was not a party to a suit before the court. See EZENWA VS. AGU (2004) 3 NWLR (PT.861) 431.
In the circumstance, issue No. 2 is answered in the negative, and same is resolved in favour of the Appellants.
ISSUE NO.3:
The 3rd issue raises the question of whether the (alleged) failure of the lower court to visit the locus in quo has not occasioned a miscarriage of justice to the Appellants, especially in the face of the irreconcilable conflicting claims of physical possession by the parties. Though not so specifically stated in the Appellants’ brief, there is every cogent reason for me to believe, as indicated by the Respondent in the brief thereof that the 3rd issue is distillable from ground 5 of the notice of appeal. The word ‘locus’ is of Latin derivative, which simply means, a place. Thus, the term ‘Locus in quo’ denotes a place where something is alleged to have occurred.
A visit to locus in quo is usually resorted where the inspection of a property which cannot be moved into court, either because it is land or property attached thereto, or because of the peculiar nature thereof. If the court is of the considered view that the inspection of such property is of material significance to the determination of the case before it, the court is required to follow the procedures laid down in section 77 of the Evidence Act, which are substantially similar to sections 207 and 243 of the Criminal Procedure Act and the Criminal Procedure Code, respectively.
The case of YESUFU ABODUNDE & ORS VS. R. (1959) 4 FSC 70: (1959) WRN 145 aptly deals with the fundamental principles guiding the conduct of visit to locus in quo. See also OBI VS. MBIONWU & ORS (2002) 14 SC M 189 at 295, wherein the apex court aptly stated the object of a visit to locus in quo thus:
“The purpose of a visit to the locus in quo.. is to clear doubts which might have arisen as a result of the conflicting evidence of both sides as to the existence or non existence of a state of facts relating to a physical object, and such a conflict can be resolved by visualizing the object, the res, the material thing, the scene of the incident of the property in issue. Where there exists such conflicting evidence as aforesaid, it is permissible for the Learned Trial Judge, and he is entitled to apply the courts’ visual senses in aid of its sense of hearing by visiting the locus in quo to resolve the conflict.
The Lower court has found, rightly in my view, that the Respondent was a witness of truth and thus accepted her evidence as to acts of possession, and that she was at the material time in question in possession of the land in dispute. According to the lower court, at page 439 lines 15 – 24 of the Record:
The law is that if there are two persons on the land each asserting that the land is his and each doing something in assertion of the right of possession and one of them is in actual possession and the other is not, if the question is, which of the two is in actual possession? The answer is that the person who has title is in possession and the other is a trespasser.
See Jatan vs. Danladi 1993 8 NWLR pt. 415 Page 597.
I think I cannot agree more with the above finding of the lower courts.
Indeed, the law is very much unequivocal on the issue of who is in actual possession, where there are two or more persons claiming ownership of a piece of land. That is to say, the claimant with a better title that’s in possession. See JATAN VS. DANLADI (1993) 8 NWLR (pt. 45) 579; KYARI VS. ALKALI (2001) 6 NSCQR (PT.2) 819 AT 856; (2001) 5 SC (PT.11) 192; MOGAJI V. CADBURY NIG. LTD (1985) 2 NWLR (pt. 7) 393; DA COSTA VS. IKOMI (1968) 1 ANLR 382 at 390; ADENIRAN VS. ALAO (2002) 4 WRN 1 at 9: HASSAN VS. JAURO (2002) 25 WRN 18 at 22.
In the circumstances of this case, by virtue of the overwhelming evidence adduced by the Respondent at the trial, there is every cogent reason for me to hold that the lower court’s failure to pay a visit to the locus in quo did not occasion a miscarriage of justice to the Appellants. Thus, issue No 3 is answered in the affirmative, and same is hereby resolved against the Appellants.
ISSUE NO.4:
The 4th issue raises the question of whether the interest conveyed in exhibit D8 to the original 1st Respondent (Deceased) was void because of the discrepancy alleged to have been noticed in the said exhibit, and the survey plan attached thereto.
Instructively, the lower court found as a matter of fact at pages 394 – 395 of the Record that –
“The plan attached is dated 1986 but exhibit D8 was made in 1969. The date on the conveyance and the survey plan are not the same. The plan was prepared in 1969 but signed by the surveyor 17 years later in 1986”.
The above discrepancy regarding the dates in the two documents was adjudged by the lower court to have rendered exhibit D8 ineffective.
What’s more, the said exhibit D8 was a registrable instrument by virtue of the provision of section 15 of the Instruments Registration Law of Lagos State, as amended. However, by the non-registration thereof, exhibit D8 has been rendered rather inadmissible. See OREDOLA OKOYA TRADING COY VS. AG KWARA STATE & ORS (1992) 7 NWLR (pt. 254) 412.
In the circumstances, I am of the paramount view, that the lower court was right in dismissing the Appellants’ case No. ID/216/93, and thereby entering judgment in favour of the Respondent. And I so hold. See ELIAS VS. KISU (1962) 1 ANLR 214: OMOREDE VS. ELEAZU (1991) 4 NWLR (pt. 183) 65.
The answer to issue No. 4 is inevitably in the affirmative, and same is accordingly resolved against the Appellants.
ISSUE No. 5:
The 5th issue raises the fundamental question of whether the lower court had correctly evaluated and appraised the facts of the cases in resolving the issue of title in favour of the Respondent.
I think, in view of the fact that the 1st, 3rd and 4th issues have been resolved in favour of the Respondent, there is no gainsaying the fact that the answer to the 5th issue is most undoubtedly in the affirmative, and same is hereby resolved against the Appellants as well.
ISSUE NO. 6:
The 6th issue raises the question of whether the court below was right in its reasoning for the award of damages to the Respondent. It’s evident on the face of the Record, that the Respondent had in the case thereof No. ID/855/93 in question claimed the sums of N500,000 and N75,000 for special and general damages, respectively. At page 441 of the Record, the lower court was recorded to have ordered thus:
“2) The sum of N600,000 is awarded against the Defendants in Suit No. ID855/93 and in Suit No. ID/216/93 jointly and severally being special damages suffered by the plaintiff as a result of the wanton destruction”
The term special damages denotes those damages which are normally awarded regarding any consequences reasonably and probably resulting from the breach or violation complained of. Essentially, special damages denote pecuniary losses which usually crystallize in terms of cash and values before trial. See IJEBU-ODE LOCAL GOVT VS. ADEDEJI BALOGUN & CO. (1991) NWLR (pt. 166) 135; INYANG VS. EBONG (2002) 2 NWLR (pt. 751) 284.
It is a trite and fundamental doctrine, that to succeed in a claim for special damages, the claimant must not only specify (itemize) the loss which should entitle him for special damages, but also prove each item of the particulars of damages. see UTTAH VS. GOLDEN GUINEA BREWERIES LTD (1988) 2 NWLR (pt.75) 373 at 381: HAWAY VS. MEDIOWA NIG LTD (2000) 12 NWLR (pt. 683) 77: WEMA BANK PLC VS. I.I.T. (NIG) LTD (2011) 6 NWLR (pt. 1244) 479 at 509 paragraphs B-C.
As alluded to above, it’s the rule that special damages are not merely awarded as a matter of course. No, they must be specifically pleaded and strictly proved. See WARNER & WARNER INT. VS. FHA (1993) 6 NWLR (pt. 298) 148: OSHINJINRIN VS. ELIAS (1970) 1 ALL NLR 153: AG OYO STATE VS. FAIRLAKES HOTELS (NO. 2) (1989) 5 NWLR (Pt.121) 255: ODUMOSU VS. ACR LTD (1976) 11 SC 55: DUMEZ (NIG) LTD VS. OGBOLI (1972) 1 ALL NLR (pt. 1) 24: WEMA BANK PLC VS. I.I.T. (NIG) LTD (2011) 6 NWLR (Pt. 1244) 479 at 510 F – H.
In the instant case, it’s rather obvious that the N600,000.00 special damages awarded to the Appellants have not been strictly proved in accordance with the requirement of the law. Thus, the issue No. 6 ought to be answered in the negative, and same is hereby resolved in favour of the Appellants.
Hence, in the light of the foregoing far-reaching postulations, the appeal ought to succeed in part. The appeal is accordingly allowed in part.
CONSEQUENTIAL ORDERS:
Having allowed the appeal in part, I hereby make the following consequential orders:
- The decision of the lower court entering judgment in favour of the Respondent (plaintiff) in Suit No. ID/855/93 against the 1st and 2nd Appellants is hereby affirmed.
- The decision of the lower court in Suit No. ID/855/93 entering judgment in favour of the Respondent (plaintiff) against the plaintiff in Suit No. ID/216/93 jointly and severally, is hereby set aside.
- The N600,000 special damages awarded by the lower court in favour of the Respondent against the Appellants, is hereby set aside.
- The N75,000.00 general damages awarded to the Respondent against the Appellants is hereby affirmed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.:
I have read the ruling just delivered by my learned brother I. M. M. SAULAWA JCA, and I am in complete agreement that the appeal be allowed in part. I will add a few words.
Where a party by the evidence on record did not show diligence in utilizing the opportunity to be heard, he cannot turn around to claim lack of fair hearing.
There was no explanation why at critical points during the trial, the Appellants, counsel decided to be absent. In any event, on a whole consideration of the trial, the claim of lack of fair hearing cannot stand. Afterall, on the subsequent dates of adjournment, learned Appellants’ counsel turned up and cross-examined PW1, P-w-2, P-w-3 (witnesses for the Respondent at the trial court) and the Respondent herself on 14/10/99. In KOTOYE vs. CBN (198) 1 NWLR (pt.98) 419 at 448 SC NNAEMEKA – AGU JSC stated:-
“The rule of fair hearing is not a technical doctrine, it is one of substance. The question is not whether injustice had been done because of lack of fair hearing. It is whether a party who is entitled to be heard before deciding had in fact been given the opportunity of hearing.”
The Appellant cannot wave the flag of “lack of fair hearing” and expect the court to declare a miscarriage of justice without any cogent reason. The test is objective and depends on the circumstances of the whole case.
The Appellants in this appeal had relied on Exhibit D8 which had two major flaws. The conveyance was made in 1969. The plan attached to it was dated 1986. Also, the conveyance was not registered in accordance with S.15 of the Instruments Registration Law of Lagos State and is thus inadmissible in court.
The basis of the Appellants’ case then collapsed.
In the circumstances for the reasons given above and fuller reasons ably and eruditely set out by my learned brother, I allow the appeal in part. I abide by all the consequential orders made.
- A. DANJUMA, J.C.A.:
I have had a preview of the leading judgment of my lord, SAULAWA, JCA, and agree and abide by the said judgment and all the consequential orders made therein.
I have nothing more useful to add to strengthen this succinctly written judgment that has captured all the issues raised and admirably resolved in favour of the Appellant, though partially.
Appeal allowed in part only.
Appearances
J.C. Anishere Esq. with L.I. Ugwu Esq. and N.C. Eriaku Esq. For Appellant
AND
L.I. Ugwu Esq. and W.C. Oniku Esq. For Respondent
