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Jinadu vs. Esurombi-Aro

CHIEF ADESINA JINADU

( SUBSTITUTED FOR CHIEF BELLO DAVIES ON

22 ND MARCH  2004)

YINUSA ABU

KEHINDE SAVAGE

(SUBSTITUTED FOR LATE LAWRENCE SAVAGE)

OLAJIDE SAVAGE

ALHAJI AMAO LAWAL

ISIAKA ADEWUSI

( SUBSTITUTED FOR LATE TESLIMI ADEWUSI )

MADAM IDOWU TOKOSI

( SUBSTITUTED FOR LATE MARIAM TOKOSI )

LAMIDI TOKOSI

ALHAJI RAFIU KEKERE-EKUN

(SUBSTITUTED FORLATE KARIMU KEKERE-EKUN)

GANIYU ANIMASHAUN

ALHAJI ALIATA RUFAI IGBOGBOJI

(SUBSTITUTED FOR LATE RAIMI SULE IGBOGBOJI)

ALHAJI NURUDEEN OKO-OSI

(SUBSTITUTED FOR LATE NIMOTA BANKOLE)

ALHAJI HAMZAT LAGUDA

(SUBSTITUTED FOR ALHAJI A. K. LAGUDA)

( For Himself and on Behalf of The Yesufu Adeosi Family )

V

CHIEF ISRAEL ESUROMBI-ARO

CHIEF ABDUL FATAI AROMIRE,

THE OJORA OF LAGOS

( For themselves and on behalf of Ojora Chieftaincy Family)

COURT OF APPEAL

( LAGOS DIVISION )

ISA AYO SALAMI JCA (Presided and Read the Lead Judgment)

WALTER SAMUEL NKANU ONNOGHEN JCA

CLARA BATA OGUNBIYI JCA

CA/L/86/2001

MONDAY, 8TH NOVEMBER, 2004

ACTION -  Representative action - Appropriateness of

APPEAL - Consolidation of appeals - Whether appropriate

APPEAL - Ground of appeal - Where admissibility of evidence is complained of - Whether leave of court necessary before filing same

APPEAL - Issues not put before trial court - Lack of jurisdiction by appellate court thereon

APPEAL - Lapse of time in bringing appeal - Party claiming same must prove miscarriage of justice

APPEAL - Review decisions of trial court - Duty on Court of Appeal

COURT - Duty on not to go on to a voyage of discovery

COURT - Duty on to do substantial and not cloistered justice

COURT - Evaluation of evidence - Duty on trial court

COURT - Inadmissible evidence - Where same is admitted inadvertently by trial Judge - Duty on to discountenance when arriving at a decision

COURT - Issues before trial Judge - Duty on to determine and not speculate

COURT - Issues not put before trial court -  Lack of jurisdiction by appellate court thereon

CUSTOMARY LAW - Customary tenant - Rights of - Scope of

DOCUMENT - Documentary evidence - Letter not shown “to be delivered by post or ordinary” in accordance with section 91 ,

Evidence Act - Whether admissible

EVIDENCE - Admissibility - Documents otherwise inadmissible - Where admitted inadvertently -  Whether relevant to court’s decision

EVIDENCE - Admissibility of - Where ground of appeal complains of admissibility of evidence - Whether leave of court necessary before filing same

EVIDENCE - Compellability of witness in civil trials - Compellability of opposing party to give evidence on behalf of the other party

EVIDENCE - Documentary evidence - Where inadmissible - Whether admissible with parties’ consent

EVIDENCE - Documentary evidence - Document not pleaded - Whether admissible

EVIDENCE - Documentary evidence - Letter not shown “to be delivered by post or ordinary” in accordance with section 91, Evidence Act - Whether admissible

EVIDENCE - Documentary evidence - Priority of over oral evidence

EVIDENCE - Documentary evidence - Proof of existence thereof

EVIDENCE - Documentary evidence - Unsigned document - Whether goes to admissibility or weight attached to same

EVIDENCE - Documentary evidence - Where maker is not a witness Admissibility thereof

EVIDENCE - Documents - Identity of maker of - Where not in issue - Whether necessary to prove the handwriting or identity thereof

EVIDENCE - Documents - Where maker is not a witness - Whether admissible

EVIDENCE - Witnesses in civil trials - Competence of - Competence of

in civil trials

JURISDICTION - Issues not tried by trial court  - Lack of jurisdiction of appellate court in respect of

LAND LAW - Customary tenants - Rights of

LAND LAW - Declaration of title to land - Claim for - Need for clear description of land in dispute

LAND LAW - Declaration of title to land - Party claiming - What must prove

LAND LAW - Possession of land - Party claiming - What he needs to prove

LEGAL PRACTITIONER - Address of counsel - Whether can rectify omission in proceedings

PLEADINGS - Need to plead facts and not evidence

PLEADINGS - Need to plead facts and not law - Whether facts that bring the matter within the law can be pleaded

PLEADINGS - Where facts are pleaded - Whether necessary to plead expressly the documents which such facts are hinged upon

PRACTICE AND PROCEDURE - Action brought in representative capacity - Appropriateness of

PRACTICE AND PROCEDURE - Miscarriage of justice - Meaning and application of

STATUTE OF LIMITATION - Whether applicable to customary tenancy

STATUTE - Evidence Act Section 91 - Whether letter not shown “to be delivered by post or ordinary” is admissible thereunder

STATUTE - Evidence Act Section 92(1) - Weight attached to admissible evidence - How determined

WORDS AND PHRASES - Miscarriage of justice - Meaning of

Issues:

1.              Whether exhibits D, R, S and V were admissible in law

2.              Whether on the totality of the evidence, oral and documentary, judgment sought to have been entered in favour of the plaintiffs.

3.              Whether the delivery of the judgment fifteen months after the

final address has occasioned a miscarriage of justice to the appellants.

4.              Whether there is evidence that the 24th defendant/ appellant’s family are customary tenants of the plaintiffs

5.              Whether the learned trial judge was right when he held that all the defendants fought this case in a representative capacity.

Facts:

In the lower court, the respondents as plaintiffs claimed a declaration of title under native law and custom to a parcel of land which was part of the Ojora Chieftaincy land situated at Iganmu, Lagos, forfeiture of customary tenancy and occupational right of all the defendants and each of them in the land in dispute as well as possession of the said lands.

The 13th appellant who was not originally party to the suit sought and obtained leave to be joined and was joined as the 24th defendant. He also brought a counterclaim. After hearing the evidence of all the parties, the court ordered written addresses which were adopted by oral submissions. The Judge granted all the reliefs of the plaintiffs while rejecting the counterclaim of the 13th appellant.

Aggrieved by the judgment, some of the defendants (i.e. 1st - 5th, 7 th - 11th, 15th and 16th defendants as 1st - 12th appellants appealed. The 24th defendant appealed separately, but as a result of an order of consolidation, he was joined as the 13th appellant.