In the Supreme Court of Nigeria,Holden at Abuja,On Friday, February 10, 2012,Before their Lordships:Walter Samuel Nkanu Onnoghen, Justice, Supreme Court;John Afolabi Fabiyi, Justice, Supreme Court;Olufunlola Oyelola Adekeye, Justice, Supreme Court;Mary Ukaego Peter-Odili,Justice, Supreme Court;BetweenMilitary governor of Lagos State,The Attorney General of Lagos StateThe Director of Town Planning & Land MattersLand Use and Allocation CommitteeSamuel Olatunde Smith (appellants)andAdebayo Adeyiga,Alhaji T.O. Ashiru,Ekundayo Kuponiyi,Alhaji Sikiru Adeyiga,Moses Adewunmi Adekoya,Samuel Onatemowo,Philips Ogunbanwo (respondents).(Suing for themselves and on behalf of other members of Shangisha Landlords' Association as per order of court Dated November 21, 1988).Issue oneWHETHER 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 December 29 and 31, 1993.Issue twoWhether 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.The appellants argued and submitted that the lower court misconstrued the provision of Order 48 Rules 4.5 and 7 of the High Court of Lagos State Civil Procedure Rules 1972, which is par material with Order 50 Rules 4 and 5 of the High Court of Lagos State Civil Procedure Rules 1994, which are unambiguous as to their purport and application. Rule 4provides that no cause of matter will be heard during the period beginning on Christmas eve and ending on January 2, save where such a matter of urgent hearing shall be made by summons ' Rules (2) states that an application for urgent hearing shall be made by summons ' the rules do not anticipate a judge determining the urgency. In reading Rules 4(c ) and 5 (2) together, it is the parties that will try to satisfy the court that the matter is urgent and not the court determining such. In the overall circumstance, the appellants concluded that the proceedings of December 29 and 31, 1993, were conducted during the Christmas vacation. The consent of all the parties to the suit was sine qua non for the proceedings to be valid. The urgency anticipated by the Rules is a situation that would affect the subject matter of the suit like a destruction of the re-or an irreversible event that would permanently prejudice the right of the parties. As it was, retirement of the judge would have compelled the hearing of the case to another judge with the right of the parties intact.The counsel for the respondents vehemently opposed the adjournment sought on December 20,1993, by counsel for the appellants on the ground that it was a plan by the appellants to ensure that the judge did not conclude the case before his retirement. The adjournment by reason of which the case was adjourned to December 22, 23 and 24, 1993, was at the instance of the appellants. The respondents further stated that it was not necessary for the parties to bring an application by way of summons as the rules permitted the learned trial judge to hear a matter during the period of Christmas vacation if same was urgent.In construing Order 48, it is obvious that Rule 5 makes room for two exceptions to the rule that matters may not be heard during any of the days specified in Order 48 Rule 4. These exceptions are:' Where the matter is urgent or;' Where the parties consent that the case be heard during that period.The word or features in Order 48 Rule (1).In such situation, the word used is disjunctive and should, therefore, be given its ordinary 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.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:' At that time of hearing of the case, this matter had been in court for five years;' The hearing had prolonged before the same judge throughout the year, 1993;' As at December 20, 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 January 1,1994 and it was, therefore, imperative that the part-heard matter be concluded before his retirement;' The counsel for the respondent, Mr. Adefila, according to the record, vehemently opposed the adjournment sought by the 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 November 29, 1993, to conclude a matter that was part-heard.The learned trial judge exercised his direction and fixed continuation of the hearing for December 22 to 24, 1993. The circumstance of urgency 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 judge and not the parties who had rightly decided that the matter was urgent in the prevailing circumstances.Military administrator of Delta State v. Olu of Warri (1997) 7 NWLR (pt.5.513). They argued that the court did not give the appellants the opportunity to be heard before exercising its discretion to adopt extraordinary measures. In as much as the appellants had not waived their right under the rules, there was a denial of fair hearing.The bottom line to the doctrine of fair hearing envisaged by virtue of Section 33(1) of the 1979 now in pari material 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 natural justice namely Audi alteram pattern and nemo judex in causa sua.A hearing cannot be said to be fair if any of the parties is refused a hearing or denial 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.FBN PLC v. TSA Ind. Ltd. (2010) 15 NWLR (pt. 1216) pg. 247.Bamgboye v. University of Ilorin (1999) 10 NWLR (pt.622) pg. 290However, whenever a party has been given ample opportunity to ventilate his grievances in a court of law but chooses not to utilise 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 conducive atmosphere for the parties to exercise their right to fair hearing.Furthermore, a party complaining that he has been denial 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 suit. Where the party has been afforded the opportunity to put across his defense and he fails to take advantage of such an opportunity. He cannot later turn around to complain that he was denial 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 around to accuse the court of denying him fair hearing because of equity aid 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.If a counsel takes a procedure as regular then he cannot be heard to object later before an appellate court. In the instant appeal when the learned trail judge decided to hear the matter during those dates falling during the Christmas vacation because it was urgent, the counsel appearing for the appellants was not only in court; she consented to the dates fixed for hearing. The appellants could not turn round to complain about the sitting before the court of appeal and particularly in this court.The consent amounted to a waiver of the right of the right of the appellants to complain or object.The appellants submitted that the two lower courts misdirected themselves on the facts and erred in deciding that a binding agreement in the respect of the land had occurred in the facts of this case and particularly at the meeting of October 16, 1984, in the event which transpired between the parties the appellants referred to the letter tendered as Exhibit P27 in which the respondents rejected the 50 plots offered by the Lagos State government and demanded for 550 plots. The issue was never resolved between the parties. Secondly, that the letter P.25 relied upon heavily by the two lower courts to have confirmed the claim of the plaintiffs did not categorically state the number of the plots at stake, while the government did not agree to give priority of allocation or any allocation at all to the respondents. The emphasis of the respondents was that they be given first choice preferential treatment by the Lagos State government in the allocation or re-allocation of the plots in Shingisha village.The plaintiffs have failed in the circumstance of this case to establish rights to the 549 plots of land within the Shangisha Village in accordance with the five ways in which title to land can be proved outside of the grant of occupancy.The court below failed to advert properly to the onus of proof on the respondents seeking declaratory judgment and to the requisite standards of proof. Where a trial court fails to evacuate such evidence at all or properly as in the instant appeal and the evaluation does not involve credibility of witnesses, the appellant court can intervene to re-evaluate such evidence.The appellant cited case like Teniola v. Olofunkan (1990) 5 NWLR (pt.602) at 280Okonji v. Njokanma (1991) 14 NWLR (pt.638) pg. 250The respondents replied to these two issues by a brief summary of the case of both parties as averred in the paragraphs 9, 14-20, 25, 27 and 31 of the averments in the plaintiffs/respondents amended statement of claim and paragraphs 10, 11, 12, 15, 24 and 29 of the defendants/appellants amended statement of defence. The Court of Appeal affirming the judgment of the trial court held that the issue before the parties transcended ownership of land. It was whether or not the appellants agreed to allocate alternative plots of land to each of the 549 plaintiffs/respondents having regard to the manner in which they were evicted and their structures demolished. The courts held that exhibit P25 confirmed the aforesaid agreement by 1st - 4th appellants to allocate alternative plots of land to each of the 549 plaintiffs/respondents and in the circumstances the appellants breached that agreement. The respondent submitted and drew the attention of this court to the concurrent findings of fact of the two lower courts of the foregoing claim of the respondents, which are justified and supported by evidence.The respondent urged this court to dismiss the appeal and affirm the judgments of the lower court.The foregoing is the summary of the agreement and the submission of both parties on these two issues.I shall re-state the claim of the respondents as plaintiffs before the trial court by way of emphasis, it reads:-'An order that members of the Shangisha Landlords' Association whose lands and/or building 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 of their particular respective plots as agreed in the meeting held on October 16, 1984, with the Ministry of Lands, Housing and Development Matters.'I have gleaned through the record of appeal bearing in mind that the law permits me to take judicial notice of all relevant information therein which will assist me in doing substantial justice in the determination of this appeal.Besides the evidence of P.W.I, documents tendered in evidence by the 1st P.W. were application forms, receipts, offer of settlement, list of members of plaintiff association ' 594 names, exhibits P5 ' P27. The records is replete with letters of protest, letters of appeal to Governor of Lagos State, to the Head of State of the Federal Republic of Nigeria, series of applications for interim order of restrain, applications for committal, letters of threat from allocates of land to members of the Landlords Association etc. The respondents based their demand for first choice preferential treatment on the averments in their pleadings ' the undetermined paragraphs of the further amended statement of claim are worthy of note ' Paragraph 8.The 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th plaintiffs are members of Shangisha Landlords' Association and the duly authorised to institute this action for themselves and on behalf of the entire members of the said association.'The appellants reacted to the foregoing averments in their 2nd further amended statement of defence. At the hearing of the case, the respondents gave evidence in support of the averments in their pleadings and tendered the exhibits P5 ' P27. The appellants and their counsel did not appear in court on the dates fixed for the hearing of the case. The dates were based on the appellants' counsel's application for adjournment. In short these dates were fixed with consent of the counsel for the appellant. It was also imperative that the matter be heard on those dates in view of the urgency of the situation. In short, the appellants abandoned their case though they were given the opportunity to defend the same.At the trial, the 1st P.W gave evidence in great details in support of the plaintiffs' case and his pieces of evidence (save as to the number of the members who are not entitled to the reliefs hereby sought in this action) were totally in the line with pleaded case. What is most important is that even during the proceedings and trial in this action meetings were held between the plaintiffs and the Lagos State government (defendant) herein to find an amicable settlement out of court to the disputes herein. Unfortunately this has not been achieved. As the evidence of 1st P.W. stood unchallenged and uncontradicted, I accept the same in toto. From all these exhibits, it stood very clear that the government of Lagos State has committed itself to allocate plots in the scheme involved to the members of the plaintiffs Landlords Association and is therefore bound in law to do so.In the letter dated July 23, 1993, tendered as exhibit P27, the respondents rejected 50 plots by the Lagos State government and put forward a substantial claim for 550 plots. The appellants submitted that beyond the issue of formal application for re-allocation and the unresolved proposals, there is absolutely no evidence that the appellants ever actually allocated land to the plaintiffs, which was their exclusive right to do so, nor at anytime and by any document did they promise or bind themselves to or oblige to grant preferential treatment to the plaintiffs in respect to any land or plots of land, not to talk of 549 plots of which have not been identified, numbered, individually allocated or paid for.The appellants further held that the grant of mandatory injunctions by the two lower courts exposes the claim to a claim for little or right to land. Whereas the respondents did not claim for compensation for acquisition or damages for trespass or declaration that they were the persons entitled to statutory grants of occupancy in respect of their specific holdings.I hold that the reasoning of the lower court is the right and the proper answer to the foregoing submission of the appellants.
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