Yesufu Babajide V Akitoye Aisa And Anor (1966)

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ONYEAMA, J.S.C.

The plaintiff, Yesufu Babajide, claimed against the defendants a declaration of title to an area of land; the writ was issued from the High Court at lbadan on the 29th of December, 1960. On the 20th of February, 1961, the court ordered pleadings allowing the plaintiff ninety days within which to file a Statement of Claim and a plan of the land in dispute, and the defendants sixty days thereafter within which to file a Statement of Defence and a plan if necessary.

On the 5th of June, 1961, the court granted the plaintiff an enlargement of thirty days for complying with the order as to pleadings, and on the 4th of July, 1961, the plaintiff filed his Statement of Claim and plan claiming that the land had descended to him from his ancestor Odubiyi and accusing the defendants and their servants and agents of trespass on the land.

On the 20th of October, 1961, the plaintiff filed notice of motion for judgment as the defendants had not up to then filed their Statements of Defence although, according to affidavit, the Statement of Claim and the plan had been served on their counsel Mr R. 0. A. Akinjide on the 12th of July, 1961.

The application ultimately came up for hearing on the 11th of December, 1961 and an order was made entering judgment for the plaintiff. As the proceedings of the 11th of December, 1961 are of considerable importance in this appeal, we set them out in full:

“Yesufu Babajide v. Akiteye Aisa and Another. Oloko holds Kolawole’s to move. Peluola holds Akinjide’s brief on notice, not opposing the application. ORDER:-Order as prayed.

Judgment is hereby entered by consent against the defendants, jointly and severally for declaration of title to the piece or parcel of land situate lying and being at Iropo, Eruwa Council Area, Ibadan and which is more particularly shown as edged red in the plan filed with the Statement of Claim. A counter-signed copy of the plan filed to be lodged in court within four weeks of today, otherwise this judgment will become suspended till one is so lodged. See the case of Adedire Ogunleye v. Gabriel Arewa, reported at page 9 of 1960 Western Nigeria Law Report, Part 1. Costs Assessed at 45 guineas.

(Signed) O. SOMOLU-Judge.”

The judgment was duly enroled.

On the 15th of August, 1962, the defendants gave notice of motion under Order 1, rule 12(b) of the Sheriffs and Civil Process Law for an order setting aside the judgment of the 11th of December, 1961. They based the application on the allegation contained in paragraph 8 of the supporting affidavit as followings:-

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“That we did not give our solicitor instruction not to oppose the motion for judgment and if we had the opportunity of giving instructions to him at all before the motion was heard, we could have instructed him to oppose motion.”

In his affidavit Mr Akinjide, solicitor for the defendants, swore:

“2. That the motion of 11/12/61 was served on me and I had no opportunity of seeing the defendant before it was taken.