⦿ CASE SUMMARY OF:
Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors (2012) – SC
– Hearing a case Christmas period; zz8
– Vacation sitting;
– Urgent hearing;
– Court vacation;
– Fair hearing;
1. MILITARY GOVERNOR OF LAGOS STATE;
2. THE ATTORNEY-GENERAL OF LAGOS STATE;
3. THE DIRECTOR OF TOWN PLANNING & LAND MATTERS
4. LAND USE AND ALLOCATION COMMITTEE;
5. SAMUEL OLATUNDE SMITH;
1. ADEBAYO ADEYIGA;
2. ALHA JI T.O. ASHIRU;
3. EKUNDAYO KUPONIYI;
4. ALHA JI SIKIRU ADEYIGA;
5. MOSES ADEWUNMI ADEKOYA;
6. SAMUEL ONATEMOWO;
7. PHILIPS OGUNBANWO (Suing for themselves and on behalf of other members of Shangisha Landlords Association as per order of court dated 21st November, 1988)
⦿ LEAD JUDGEMENT DELIVERED BY:
Olufunlola Oyelola Adekeye, J.S.C
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Lawal Pedro, SAN.
* FOR THE RESPONDENT
– Mr. Adefala.
⦿ FACT (as relating to the issues)
The suit was filed before the High court of Lagos State on the 17th of June 1988. The seven plaintiffs now respondents in this appeal sued in a representative capacity for themselves and on behalf of other members of Shangisha Landlords Association as per order of court dated 21/11/1988 against the 1st – 4th defendants now appellants seeking for declaratory order as follows: “An order that members of the Shangisha Landlords Association whose lands and/or buildings at Shangisha Village were demolished by the Lagos State Government and/or its servants or agents during the period of June 1984 to May 1985 are entitled to first choice preferential treatment in the allocation and/or (as soon as possible) reallocation of their particular plots as agreed in the meeting held on the 16/10/84 with the Ministry of Lands, Housing and Development Matters.” The 5th respondent Samuel Olatunde Smith was joined as a defendant pursuant to the leave granted by the trial court on the 15th of October 1993. Parties were allowed to amend their pleadings.
The summary of the claim of the plaintiffs/respondents based on the averments in their pleadings was that members of the Shangisha Landlords Association purchased various plots of land from the different families who owned the entire Shangisha Village. Shangisha village which is situated behind centre for Management Development, opposite the Lagos State Government Secretariat in Alausa had been in existence for more than a century. The plaintiffs built their houses on the plots purchased by them and were in possession for several years. The plaintiffs were not served with any contravention or demolition notices by the 1st – 4th defendants or their agents before they demolished their houses and development at Shangisha village. The demolition exercise continued from June 1984 to May 1985. The Association made representation to the Governor of Lagos State culminating in several meetings held at the office of the Permanent Secretary, Lands, Housing and Development Matters to resolve the outcome of the demolition exercise. A panel was set up by the Lagos State Governor under a principal secretary in the Governor’s office to inquire into the complaints about the demolition. Though the reports were submitted, there was no positive move over the complaint.
The case of the defendants/appellants based on the averments in their pleadings was that Shangisha village is a part of the 7,300 acres of land compulsorily acquired by the Lagos State Government by Government Notice No.236 of 14th October 1969 published in the Lagos State official Gazette No.35 Vol.2 of 24th October 1969. As a result of the acquisition the land became vested in the Lagos State Government by virtue of the public Land Acquisition Vesting order of 1976 published as Lagos State Legal Notice No.7 of 1976 in the Lagos State Extraordinary Gazette No.25 Vol.9 of 18th June, 1976. The plaintiffs/respondents were not physically on the site at the time of the acquisition. They squatted and erected buildings on the land without the knowledge and approval of the Lagos State Government. As no building plans were issued to them to erect the illegal structures, contravention and demolition notices were duly served on the affected buildings and structures before the Lagos State Government carried out the demolition of the illegal structures. The Lagos State Government set up a panel whose term of reference was to inquire into various encroachments by squatters on Lagos State Government Estate.
The trial in the suit commenced in May 1993 and due to the delays caused by various interlocutory applications filed by both parties, it extended till the 29th of December 1993 and judgment was delivered on the 31st of December 1993.
The learned trial Judge found in favour of the plaintiffs/respondents. Being aggrieved by the judgment, the defendants filed an appeal in the Court of Appeal, Lagos. At the Court of Appeal, two applications were filed to regularize the Record of appeal as proceedings of the 23rd of December 1993 was omitted from the record. The lower court heard and determined the appeal and gave its judgment on the 25th of September 2001 dismissing the appeal of the 1st – 4th appellants.
Being dissatisfied with the decision of the lower court, they further appealed to this court.
1.a. Whether the court below was right when it held that it was not necessary for any of the parties to bring an application by way of summons for urgent hearing of the case during the court’s Christmas vacation and particularly for the proceedings dated the 29th and 31st of December, 1993.
1.b. Whether there was any oral application made by Chief A.O. Adefila of counsel to the plaintiffs/respondents that the case be heard urgently and during the court’s Christmas vacation.
2.a. Whether the court below was right in confirming the decision of the trial court that the defendants had agreed to allocate to the plaintiffs alternative plots of land and that exhibit P25 would appear to have confirmed the oral evidence of P.W.1 to that effect.
2.b. Whether the court below properly evaluated the evidence of the plaintiff before affirming the declaratory judgment of the trial court and granting mandatory injunction compelling the defendants to allocate 549 plots of land to the plaintiffs.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, WITH #50,000 COST]
1. a & b. WAS RESOLVED AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. The word, “or”, features in order 48 Rule 5 (1). In such situation the word “or” used is disjunctive and should therefore be given its ordinary plain meaning. It denotes an alternative and not implying similarity. It gives a choice of one amidst two or more things that is why in the literary sense it means either.
ii. I agree with the reasoning of the lower court that the first option is a matter for the discretion of the judge, while the second option is a matter for the parties. The prevailing circumstances in the instant case are as follows – 1) At that time of hearing of the case this matter had been in court for five years. 2) The hearing had prolonged before the same judge throughout the year, 1993. 3) As at the 20th of December, 1993 when the appellants applied for an adjournment, the learned trial Judge made it clear that he was going to retire from the bench on 1st January, 1994 and it was therefore imperative that the part-heard matter be concluded before his retirement. 4) The counsel for the respondent Mr. Adefala according to the record vehemently opposed the adjournment sought by counsel for the appellants on the grounds that there appeared to be a plan by the appellants to ensure that the learned trial Judge did not conclude the case before he retired from the bench as the appellants had failed to appear at the trial after having been served as many as seven hearing notices since 29th November 1993 to conclude a matter that was part-heard. The learned trial Judge exercised his discretion and fixed continuation of hearing for the 22nd – 24th December, 1993. The circumstance of urgently prevailing in the hearing of the suit does not require compliance with Order 48 Rule (2). The court and counsel had accepted the first option to treat the part-heard suit as an urgent matter; which can be heard during vacation. It was the learned trial Judge and not the parties who had rightly decided that the matter was urgent in the prevailing circumstance.
2. a & b. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANTS, AND IN FAVOUR OF THE RESPONDENTS.
i. I hold that the reasoning of the lower court is the answer to the foregoing submission of the appellants. At record, the lower court held that – “The issues transcended ownership of the land. It was whether or not the defendants agreed to allocate alternative plots of land to each of the 549 plaintiffs having regard to the manner in which they were evicted and their structures demolished.” Further at page 727 of the record, the court held that – “When the plaintiff’s case is taken as unchallenged the result to be arrived at on the evidence is that the plaintiffs who were shown to be in possession of their individual portions of the land were ejected therefore by the defendant. The position of the law on the point is as explained in Okoko v. Uzeku (1978) 4 SC 77 at page 87 the Supreme Court said: It is the law and this court had held times without number that trespass to land is actionable at the suit of the person in possession of the land. Amakor v. Obiefuna (1979) 1 All NLR (pt. ) pg.119, Adesoye v. Shiwoniku 14 WACA 347 Emigwara & ors v. Nwaimo & ors 14 WACA 347 Tongi v. Kalu 14 WACA 331.” The unchallenged evidence of PW1 and the documentary evidence tendered, supplied ample evidence that the appellants demolished the structures of the respondents of the disputed land.
ii. When the evaluation of evidence by a particular trial Judge is being challenged, the principles that are examined are:
a. Whether the evidence is admissible.
b. Whether the evidence is relevant.
c. Whether the evidence is credible.
d. Whether the evidence is conclusive.
e. Whether the evidence is probable than that given by the other party Magaji v. Odofin (1978) 4 SC 91.
It is the trial court alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance of justice tilts, makes the necessary findings of fact and come to a logical conclusion. The evaluation remains the exclusive preserve of the trial court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus it is the court best suited to assess their credibility. It is only when it fails to evaluate such evidence properly or at all that an appellate court can intervene and re-evaluate such evidence otherwise the appellate court has no business interfering with the finding of the trial court on such evidence.
⦿ SOME PROVISIONS
Order 48 Rules 4 and 5 of the High court of Lagos State (Civil Procedure Rules) 1972 stipulates that –
Rule 4: Subject to the directions of the Chief Judge, sittings of the High Court for the dispatch of civil matters will be held on weekdays except:
(a) On any public holidays;
(b) During the week beginning with Easter Monday;
(c) During the period beginning on Christmas Eve and ending on the 2nd January next following;
(d) During long vacation i.e. the period beginning on the first Monday in August and ending on a date not more than six weeks later as the Chief Judge may by notification in the Gazette appoint.
1. Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a judge during any of the period mentioned in paragraphs (b), (c) and (d) of rule 4 except on a Sunday or public holiday where such cause or matter is urgent or a judge at the request of all parties concerned, agreed to hear a cause or matter.
2. An application for an urgent hearing shall be made by summons in chambers and the decision of the judge on such an application shall be final.
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
The bottom line to the doctrine of fair hearing envisaged by virtue of Section 33 (1) of the 1979 now in pari materia with section 36 (1) of the 1999 constitution as applicable in the determination of civil rights and obligation of citizens, is a trial conducted according to all the Legal rules formulated to ensure that justice is done to all the parties. It requires the observance of the twin pillars of the rules of natural justice namely audi alteram partem and nemo judex in causa sua. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. The right to fair hearing is a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in a case. – Adekeye, JSC. Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012)
However whenever a party has been given ample opportunity to ventilate his grievances in a court of law but chooses not to utilize same, he cannot be heard to complain of breach of his right to fair hearing as what the court is expected to do by virtue of section 36 of the 1999 constitution is to provide a conducive atmosphere for parties to exercise their right to fair hearing. – Adekeye, JSC. Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012)
Furthermore a party complaining that he has been denied fair hearing during the trial of a case ought to remember that in a civil case, a balance has to be struck between the plaintiff’s right to have his case heard expeditiously and the defendant’s right to put across his defence to the plaintiffs suit. Where the party has been afforded the opportunity to put across his defence and he fails to take advantage of such an opportunity, he cannot later turn around to complain that he was denied a right to fair hearing. Hence a party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn round to accuse the court of denying him fair hearing because equity aid the vigilant and not the indolent. In the instant appeal, the appellants failed to make use of the opportunity granted to them created by adjournments at their instance and abandoned their defence on the adjourned dates. A person who has abandoned his case cannot complain of lack of fair hearing. – Adekeye, JSC. Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012)
The position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish. A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstance the onus of proof is naturally discharged on a minimum proof. – Adekeye, JSC. Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012)
In this case, the learned trial Judge exercised his discretion in considering the trial of this case as a matter deserving urgency and thereby heard same during Christmas vacation and furthermore acted judicially and judiciously in granting the mandatory injunction. Where the exercise of discretion by a trial court is in issue, an appellate court is usually reluctant to interfere with the decision except where the discretion was exercised in an arbitrary or illegal manner or without due consideration of the issues by the trial court. In the instant case, the Court of Appeal affirmed that the trial court rightly exercised its discretion during the trial of this case. This court has no reason to disagree with that conclusion. – Adekeye, JSC. Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012)
Where documentary evidence supports oral evidence, oral evidence becomes more credible. – Rhodes-Vivour, JSC. Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors. (2012)