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FEDERAL SUPREME COURT OF NIGERIA
15TH JUNE, 1961.
LIONEL BRETT, AG. C.J.F. (Presided)
EDGAR IGNATIUS GODFREY UNSWORTH, F.J.
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
ETHICS – LEGAL PRACTITIONER: Failure to turn up for trial – Attitude of Court to award of costs arising therefrom
ESTOPPEL: Standing by – When applicable.
LAND LAW: Declaration of title – Equitable and legal estates – Priority of title.
PRACTICE AND PROCEDURE: Costs – When payable by counsel for absence at trial – Absence of counsel at trial – Attitude of court to penalizing party for the default of his counsel.
PRACTICE AND PROCEDURE: Appeal – Tender of document for the first time at appellate level which was not presented at trial court – Where a document is put in by consent – Effect.
Kotun (A. Disu with him) -for the Appellant.
J.O. Orojo -for the Respondent.
BAIRAMIAN, F.J. (Delivering the Judgment of the Court):
In this appeal the defendant complains against the judgment given at Ikeja, in the High Court of the Western Region, on the 30th April, 1958, in suit AB/19/56; the judgment granted the plaintiff a declaration of title to a piece of land situate at Adeyemi Street, Mushin.
There is among the exhibits a deed of mortgage made in 1925, between one Williams A. Dawodu and the executors of the estate of Michael Daniel Elliot. The plaintiff alleges in his Statement of Claim, that the mortgagees sold the land by public auction; that one Alli Sanni bought it and obtained a receipt on 21st April, 1927; that Sanni died intestate on 28th October, 1944; that letters of administration were granted to certain persons, who obtained an order of court empowering them to sell the land; that the administrators sold it to the plaintiff on the 8th February, 1954, and put him in possession; and that on the 13th September, 1954, they gave him a deed of conveyance.
The defence is that the mortgagees had some of Dawodu’s land sold in plots by auction on 10th January, 1926, at which one Yesufu Alabi Musa bought the land in dispute as plots 101 and 102, and that Musa joined with the surviving trustee of the estate of Elliot in conveying the plots to the defendant by deed dated the 19th July, 1954. The defence also states that the defendant erected a substantial building on the land, and that he will rely on estoppel, standing by, etc.
The plaintiff had said in his Statement of Claim that about January, 1955, he observed some workmen on the land; that in consequence of inquiries he caused a letter to be written to Yesufu Alabi Musa warning him to refrain from further trespass; that the plaintiff later found that Yesufu had sold the land to the defendant, who was erecting, and was still in process of erecting a house on the land, claiming to be the owner.
On the 3rd March, 1958, the trial Judge, in the presence of Counsel, fixed the case for hearing on the 30th April and 1st May. On the 30th April, 1958, Counsel for the plaintiff appeared, but Counsel for the defendant did not. Plaintiff gave evidence, and called a witness, and his case was closed. The note thereafter reads:
“Defendant says that he has paid his Counsel in full and his title deed is with his Counsel. I adjourned the suit till 10.30 a.m. to enable defence Counsel to appear. Time is now 9.45 a.m. On his appearance I shall deal with the question of cost in favour of the plaintiff.
“Court: The time is now 10.50 and up till now there is no appearance of the defence Counsel nor even a letter from him to explain his absence. I shall proceed with the case and shall comment further on this action at the close of the case.”
Then the defendant gave evidence; and, later in the day, the learned trial Judge gave his judgment. In it he says that the issue is, who bought the land from the executors through their auctioneer, and decides that on the evidence Alli Sanni was the purchaser.
Mr Kotun, who was to have appeared for the defendant at the trial, appeared for him at the hearing of his appeal. He explained that his clerk had wrongly entered in the diary the 1st May only for the trial, and that was why he did not attend the trial; he pointed out that Alli Sanni bought on a receipt, which meant a gap in the legal title between the mortgage and the conveyance of 13th September, 1954, to the plaintiff; and he asked for leave to apply to put in the defendant’s conveyance.
It seemed fair, in the circumstances of this case, to allow the application to be made: for not to allow it would have meant penalizing the defendant because his Counsel had not turned up at the hearing; and the defendant’s conveyance was admitted in evidence by consent. Learned Counsel for the plaintiff/respondent, having regard to the defendant/appellant’s conveyance, suggested that the plaintiff should be non-suited and given an opportunity to regularize his legal title. This cannot be done, for the surviving trustee of Elliott’s estate joined in making a conveyance to the defendant and has no longer the legal estate to convey to the plaintiff.
Learned Counsel for the plaintiff also wished to have more time to look into the question whether the person who conveyed to the defendant as trustee of Elliot’s estate was lawfully clothed with that character. I think it is too late for that. The defendant had pleaded his conveyance, and all those enquiries should have been made in anticipation of its being tendered in evidence in the court below. Moreover, the hearing of the appeal was adjourned on 1st February last for the sake of an application being made to let the conveyance be tendered in evidence; and those enquiries could have been made by the 8th June, when the hearing was resumed. As it is, the conveyance was put in by consent, and it is too late to think of questioning it now. Incidentally, another trial would not, in my view, serve any useful purpose in this case.
I have already mentioned that the plaintiff stated in his pleading that about January, 1955, he saw workmen on the land; that in consequence of inquiries he wrote to Yesufu Musa; that later he found that Yesufu had sold to the defendant, who was claiming to be the owner. In his evidence the plaintiff said the following:
“In 1955 I went on the land. I warned the workers. I later went to L.E.D.B. to find out who now claimed to be the owner of the land and I found it was the defendant. I therefore brought this action.
“XXd: The workers would not tell me who was building on the land so I went to the L. E. D. B.”
It does not seem that the plaintiff was diligent in finding out who was building: for his pleading is that he saw workmen about January, 1955, but his action was filed on 22nd February, 1956.
In his evidence the defendant stated that he built on plot 101 in 1955. Admittedly his conveyance relates to the land in dispute.
From the evidence now before the Court, it is clear that the defendant bought with a conveyance dated 19th July, 1954, without notice of the plaintiff’s equitable interest in the land, and built in 1955 in good faith that the land was his property, without any notice from the plaintiff, who was dilatory in finding out who was building on the land, and in effect stood by for a year. I have no doubt that, if the defendant’s conveyance had been put in at the trial, the learned trial Judge would have refused judgment to the plaintiff.
As regards cost, it seems to me that the fair course is to let the defendant stand his own cost both in the Court below and in the appeal. I bear in mind that on the 1st February we ordered the defendant to pay ten guineas to the plaintiff for the adjournment to enable him to apply for the admission of his conveyance; but, there again, the adjournment would have been avoided, if Mr Kotun had put in a notice of motion in advance of the 1st February for that purpose. It seems to me that the plaintiff cannot be asked to pay for costs arising from the fact that Mr. Kotun did not turn up at the trial – the mistake may have been due to his clerk, but it was one for which others cannot be asked to pay – and it must be left to Mr. Kotun to do the right thing by his client, which he no doubt will wish to do.
I would allow the appeal and dismiss the action, without any order as to costs either here or below, but also without prejudice to the order of the 1st February, 1961, on the appellant to pay ten guineas to the respondent.
BRETT, AG. C.J.F.: I concur.
UNSWORTH, F.J.: I concur.