MRS. OYINDAMOLA KASUNMU & ORS V. PRINCE DAVID AKINTOLA ADEPEGBA (2010)

MRS. OYINDAMOLA KASUNMU & ORS V. PRINCE DAVID AKINTOLA ADEPEGBA

(2010)LCN/3552(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of January, 2010

CA/L/39/04

RATIO

PROCESS: ATTITUDE OF COURT TOWARDS UNDUE AND INORDINATE DELAY IN THE DETERMINATION OF SUITS

The provision in our rules for judgment to be entered against a party who is absent at a trial court is a rule which upholds the principles of justice that fair hearing also includes a timeous determination of a matter filed in Court. In the same situations, substantial justice is done when judgment is entered against a reluctant party i.e. one who is obviously unwilling to adduce evidence in challenge of the case made out against him. PER MONICA. B. DONGBAN-MENSEM J.C.A.

COURT: BASIC FUNCTION OF A TRIAL COURT

This issue attacks the very basic function of a trial court i.e. the evaluation and ascription of value to the testimonies of witnesses appearing before the trial Court. PER MONICA. B. DONGBAN-MENSEM J.C.A.

Justice

MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

Between

1. MRS. OYINDAMOLA KASUNMU
2. MADAM ADEYOOLA AKINSONWON
3. CHIEF SOWUNMI SOGBESAN
4. MRS. OLAWUNMI ABEGUNDE
5. MRS. ADEKUNLE WILLIAMS
6. MR. BABATUNDE WILLIAMS – Appellant(s)

AND

PRINCE DAVID AKINTOLA ADEPEGBA – Respondent(s)

HON. JUSTICE MONICA. B. DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Lagos Coram Oduneye J. delivered on the 6th June, 2003. The Judgment is reproduced at pages 125-138 of the Record for this appeal.
The Respondent, who was the Plaintiff, and shall hereafter be referred to as the Respondent, commenced the suit by a writ of summons. The writ which was dated 5th August, 1998 sought the following reliefs:
(1) The Plaintiffs’ claim jointly and severally is for a Declaration that the Plaintiffs are the persons jointly and severally entitled to the grant of Statutory Right of Occupancy in respect of that parcel of land situate, lying and being at Ajegunle Ilo, Ajegunle Village along Abeokuta Express Road, Lagos, which said parcel of land is part of a larger area of land on a plan attached to a Deed of conveyance dated 17th day of June, 1915 and registered as No. 127 at page 418 in volume 90 of the Register of Deeds kept at the Lands Registry in Lagos.
(2) The sum of N200, 000. 00 being special and general damages as well for the destruction of the Plaintiffs’ cash crops by the defendant and or his agents servants or privies.
The particulars of special damages were endorsed as follows:
(1) Cash Crops Destroyed:
(a) 2000 Cassava Rubbers @ N10 each      –    N20,000.00
(b) 500 Banana Trees @ N50 each        –        N25, 000.00
(c) 500 Pawpaw Trees @ N50 each        –       N25.00000
(2) General Damages          –              N130,000.00
TOTAL                                       –              N200,000.00.
(3) Perpetual Injunction restraining the Defendant by himself privies, servants and/or agents and any other person or body claiming through him from further committing further acts of trespass on the said land.

The parties filed and exchanged pleadings, the matter proceeded to hearing on a rather slow motion punctuated with numerous and endless applications made by the Appellants. Page 2 of Appellant’s brief gives a history of the case and all the change of Counsel made. The numerous applications and change of Counsel give clear impression that the Appellants were not desirous of seeing the conclusion of the matter within a reasonable time.
Due to numerous applications which unduly delayed the conclusion of the matter, the Appellants were foreclosed and therefore called no witnesses. The Appellant have formulated five issues for determination in this appeal. These are:
(1) Whether the learned trial Judge was right when he believed and acted on the evidence led by the Respondent and his witnesses (Grounds 2, 3 and 7).
(2) Whether the learned trial Judge was right when he held that the Respondent established long and undisturbed possession sufficient to entitle him to a grant of declaration of title and perpetual injunction in favour of the Respondent (Grounds 1 & 6).
(3) Whether the Respondent established locus standi sufficient to warrant judgment in his favour (Ground 5).
(4) Whether there was evidence to proof trespass before the Court to justify the award of N500,000.00 or any other sum (Ground 4).
(5) Whether the learned trial Judge was right when he refused to entertain the Appellants’ application dated 25th May, 2003 which sought to re-open the case to enable the Appellant lead evidence in their defence but instead proceeded to give judgment against the Appellants (Ground 8).

Issue No.4 is taken first as it goes to the root of the jurisdiction of the Court. The Appellants allege that the Respondent had no locus standi to stake out the suit against them because he claims that the land is family land but he sues in his personal capacity. The suit should therefore have been dismissed. Cited in support of this submission are the cases of Ezekwe vs. Onyeama (1993) 8 NWLR (Pt. 309) pg 76 and Sogunle & Ors vs. Akerele & Ors (1967) NMLR 58.

The Respondent is shown to have pleaded facts establishing his roots and rights to the land and therefore his locus standi which the Appellants never challenged in their statement of defence. Further, the learned Counsel to the Respondent submits that under Customary Law; when man dies his children inherit his property. The Respondent established that Emmanuel Adedosu Adepegba was his father and the parcel of land came to his personal possession by partition. Reliance is placed on the case of Odige vs. Aniemeka (1992) 7 NWLR (Pt. 251) pg 25 where the Supreme Court held that it would amount to injustice to deny a party their property because they are unable to establish their representative capacity. I am bound by this decision. The right of the Respondent to sue has not been put to the test nor has it been effectually challenged. This issue is resolved in favour of the Respondent.
I shall next address Issue No.5 as to whether the learned trial Judge rightly foreclosed the Appellants in the suit of the Respondent. The summation of facts of this case by learned Counsel to the Appellants is worth reproducing in extenso on this issue:
“The Respondent called seven witnesses but the Defendants did not testify neither did they call any witness although their Solicitor in their absence made some feeble attempt to cross-examine the Respondent and his witnesses (see pages 87-95). It must be admitted that the Defendants changed their Counsel many times, first from Adetunji John to A.A. Adeleye & Co. (see pages 96-97) and later to Adeyinka Oshin & Co. (see pages 70-77) and finally to Wemimo Ogwule & Co. (see pages 79-82). Apart from change of Counsel, there was another attempt to join some parties to the suit. This application was argued from 23rd May, 2002 till 17th January, 2003 when it was finally dismissed (see pages 99-110). From 17th January, 2003, the case was adjourned on several occasions until 14th May, 2003 when the learned trial Judge closed the Appellants’ case. Another application for leave 10 appeal was argued on 30th April, 2003 and dismissed on 15th May, 2003 on which day the Respondent’s Counsel delivered his final address and judgment fixed for 6th June, 2003 (see pages 112-118 of the Record), It is important to note however, that on 25th May, 2003, the Appellants’ Solicitors now acting Wemimo Ogunde & Co. filed an application seeking leave to change Counsel and to re-open the Appellants’ case (see pages 78-82). The learned trial Judge refused to entertain the application.”

The grouse of the Appellants is that the learned trial Judge refused to take their application to re-open their case and that they were allowed “only about 35 days to look for a Counsel…” Could they possibly have, within 35 days looked for a Counsel without an adjournment?
It is the submission of the learned Counsel that the refusal of the trial Judge to grant an adjournment to enable the Appellants argue their motion to re-open the case constitutes an infraction on their right to fair hearing. The following cases were cited in support:
(1) Salu v. Egeibon (1994) 6 NWLR (Pt. 348) pg 23;
(2) Ceekay Traders Ltd. v. General Motors Co. Ltd (1992) 2 NWLR (Pt. 222) pg 132;
(3) Alsthom S.A. v. Saraki (2005) 3 NWLR (Pt. 911) pg.203.
The learned Counsel for the Respondent rebutted the argument of the Appellants by reference to the same case of Salu v. Egeibon (supra) cited by the Appellants’ Counsel. The said case also held that where a party indulges in dilatory tactics, it would not be said that the party is aim at a fair hearing rather that party is using the due process to defeat justice being done to the opposing party. Also cited in support are the following cases:
(1) Egbo v. Agbara (1997) 1 NWLR (Pt. 481) p. 293@315;
(2) Abaye v. Ofili (1986) 1 NWLR (Pt. 15) p. 134;
(3) Oladiti v. Sungas Co. Ltd (1994) 1 NWLR (Pt. 321) pages. 433, 449 & 450;
(4) Adedigi v. Akintaro (1991) 8 NWLR (Pt. 2(8) p. 209;
(5) Omoniyi v. Central Schools Board (1998) 4 NWLR (Pt. 89) pages 448-461;
(6) Trade Bank Plc v. Deen-Mak Cost Co. Ltd (1996) 2 NWLR (Pt. 432) p. 577.

In the course of his submission, the learned Counsel for the Respondent made out a catalogue of six incidences when the matter was fixed for the defence to open their case but they failed to. This was not denied by the Appellants.
All litigants, whether they are initiators as Plaintiffs at trial or Appellants on appeal or they are Defendants or Respondents, are entitled to fair hearing. Fair hearing comprises the right to be heard and also the right to have one’s case determined in good time. That justice delayed is justice denied is a very common verse in legal prose. The case of Salu v. Egeibon (supra) says it all as follows:
“Where an application for an adjournment is made to a Court, the Court should bear in mind the requirement that justice should be done to both parties and that it is also in the interest of justice that the hearing of a case should not be unduly delayed. It should grant it if a refusal of the application is most likely to defeat the rights the parties altogether or be an injustice to one or the other of them, unless there is a good or sufficient cause for such refusal, otherwise an appellate Court will not only have power but will be under a duty to review the ruling refusing the application.”

In the case of Egbo v. Agbara (supra), the Court admonished trial Courts against undue and inordinate delay in the determination of suits once the actual hearing commences. The trial Courts can do this by being alert and ensuring that they recognize dilatory antics by parties and take steps to stop the abuse of its process. One effective way of protecting the Court’s process and upholding the rule of law is to refuse frivolous or frequent applications for adjournment from a litigant when the ball is in his court to prosecute the matter before the Court.
The provision in our rules for judgment to be entered against a party who is absent at a trial court is a rule which upholds the principles of justice that fair hearing also includes a timeous determination of a matter filed in Court. In the same situations, substantial justice is done when judgment is entered against a reluctant party i.e. one who is obviously unwilling to adduce evidence in challenge of the case made out against him. I find no reason to interfere with the decision of the trial Judge on this issue.

The three outstanding issues can all be determined under issue one i.e. whether the learned trial Judge was right when he believed and acted on the evidence led by the Respondent and his witnesses.
It is the submission of the Appellants that the Respondent’s evidence given through him and six other witnesses was insufficient to warrant the Judgment given in his favour. To support this, the Appellants cited some contradiction in the evidence of the Respondent and some of his witnesses as to the character of the land and the long possession of the land.
This issue attacks the very basic function of a trial court i.e. the evaluation and ascription of value to the testimonies of witnesses appearing before the trial Court. In this appeal the learned trial Judge held as follows:
“… The evidence given by the Plaintiff witness have not been controverted, I therefore believe the evidence of the witnesses for the Plaintiff when there is no other evidence, the burden of proof is discharged on a minimal proof (see the case of Kosile v. Folarin (1989) 3 NWLR Pt. 107 p.1 at p. 12). For the Plaintiff to succeed in his claim of title based on acts of ownership, such acts must be positive enough to warrant the inference that the Plaintiff is the owner. (See Awarh) v. Aladibo (2003) Vol. 3 MJSC p. 157@ 167).

The Plaintiff has established a prima facie case as the owner of the land. There is sufficient evidence of sale and possession since 1916. The Plaintiff has been in possession for 90 years. The sale to the Plaintiff was never challenged by the Defendants head of family who infact confirmed the sale. The long and undisturbed possession of the Plaintiff on the land entitles him to the declaration he is asking for. I am of the view that the Plaintiff has succeeded in proving one of the five ways of procuring title to land. (See the case of Idundun v. Okumagba (1976) 9-10 Sc, p. 227. See also Nwosu v. Udeaja (1990) 3 WBRN, p. 1 at 3.)”
Given the failure/neglect of the Appellants to effectively participate in the trial, the learned trial Judge used the material placed before him. The learned Counsel for the Appellants has raised issues urging this Court to speculate on what the defence case would have been. That is not the duty of this Court. The Appellants cannot convert an appeal into a trial at which questions which should have been put to the witnesses under cross-examination are put forward for consideration under issues for determination in an appeal. No answer will arise from those postulations.
The learned Counsel to the Respondent adequately responded to the said submission in these terms:
“In this connection also, the Respondent will also refer to the case mentioned by the Appellants Salu v. Egeibon and highlight its ratio decided about some circumstances which may justify refusal of applications including the so called application in this case. Salu v. Egeibon (1994) 6 NWLR (Pt. 343) p. 23:
(i) if there had been good and sufficient cause for the refusal of the application it will be upheld. Page 53A;
(ii) it is also in the interest of justice that the hearing of a case should not be unduly delayed. Page 428;
(iii) if therefore a party indulges in asking for incessant and unreasonable adjournments a trial Court should not allow him to use the due process of law to defeat the ends of justice. Page 50A;
(iv) A Judge must balance the requirement of fair hearing with the requirement of hearing to be within a reasonable time. Page 50A-B;
(v) Where however a party indulges in dilatory tactics it could not be said that party is aiming at a fair hearing rather that party is using the due process to defeat justice being done to the opposing party. Page 50C.

In all circumstances the trial Judge must nonetheless keep in mind what is the best way to do fill justice in the case. Page 45B”
I agree. There is no need to say more.
This appeal is without merit. It is hereby dismissed.
A cost of N30,000.00 is awarded to the Respondent and against the Appellants.

BODE RHODES-VIVOUR, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Dongban-Mensem, J.C.A. For the reasons given which I am in agreement with, I too dismiss the appeal with N30,000 cost to the respondent.

HUSSEIN MUKHTAR, J.C.A: I have had the privilege of reading in advance the judgment of my lord Dongban-Mensem, JCA just delivered with which I entirely agree and adopt as mine. The appeal is completely devoid of merit and deserves nothing short of an outright dismissal. I accordingly dismiss it and subscribe to the order for costs contained in the judgment.

Appearances

A.P. Sanusi (Mrs.)For Appellant

AND

A.A. OmoyinmiFor Respondent