A. T. Bakare V. T. S. Apena (Deceased) & Ors. (1986)

NNAMANI, J.S.C 

On 28th April, 1986, I dismissed this appeal and indicated that I would give my reasons for that judgment today. I now give my reasons.

In suit No. 10/168/75 the respondents herein, who were plaintiffs therein, claimed against the appellant, defendant therein for:

“(a) Declaration of title under native law and custom to all that piece and parcel of land situate, lying, and being at Ikeja, near Alade Village in the Ikeja District of Lagos State of NIGERIA;

(b) N500.00 damages for acts of trespass committed by the Defendant, his privies, servants and or agents on the said land;

(c) Perpetual injunction restraining the Defendant, his privies, agents and or servants from further acts of trespass”

Pleadings were ordered and exchanged. The matter proceeded to trial in which both sides gave evidence and called witnesses. On 9th March 1979, the learned trial Judge, A.L.A.L. Balogun, J., dismissed the plaintiffs/respondent claims in their entirety. It was after this judgment that the events which really led to the appeal before this Court began. In the learned trial Judge’s own words –

“On Friday the 9th day of March, 1979,I read the judgment in this action in open court; but soon thereafter when I retired into the chambers I discovered, to my dismay, that although I had found “that the land in dispute originally belonged to the ancestors of the plaintiffs one Amore” (in that the Defendant had admitted the averments of facts in paragraph 5 of the Statement of Claim relevant thereto) the Defendant in fact did not do so”.

As is clearly stated in the record of proceedings and not disputed in the briefs of argument filed on behalf of both parties, the learned trial judge apparently decided to recall his judgment for the necessary amendment.

On the morning of Saturday, 10th March, 1979, he went to the Chambers of Messrs. Olunwa, Tinubu and Co. the Plaintiff’s/respondents Solicitors. This visit was in the full view of the plaintiffs who were bewildered and uneasy to find the Judge who had given judgment against them the previous day in their Solicitor’s Chambers.

Perhaps I should pause here to state that there are no substantial disputes over the events of those fateful days, i.e. 10th and 12th March, 1979, although I do agree with Chief Sabo Sowemimo, S.A.N., learned counsel to the appellant, that fairness demanded that the long petition addressed to the Chief Judge of Lagos State which was heavily used by the learned Justices of the Court of Appeal ought to have been sent to the learned trial Judge for his comments. As it is we have only Mr. Olunwa’s version as to what happened in his Chambers. According to this version, which is contained in a letter of 12th March, 1979 to the learned Judge, the learned trial Judge, on visiting the Respondents’ Solicitors chambers invited them to attend Court on Monday 12th March, 1979 when he intended to recall his judgment of 9th March, 1979 for amendment.

Mr. Olunwa states further that he and his professional colleague, Alhaji Tinubu, opposed the proposed amendment and rectification and an argument ensued between them and the learned trial Judge. In the course of this argument, the learned trial judge found it necessary to bring the Court file from his car, while they on their part showed him a copy of the Notice and grounds of appeal already prepared against his judgment of 9th March. Let me reiterate that there are no substantial disagreements on these matters.

In a letter dated 12th March, 1979written by Senior Registrar on the instructions of the learned trial judge, it was stated that Messrs Olunwa and co. had been “notified by His Lordship that the above mentioned judgment (i.e. judgment of 9th March, 1979) will be recalled on Monday 12th March, 1979 at 9 a.m. to enable His Lordship correct a fundamental error which he had discovered, and which had bothered him so much”.

On 12th March, 1979, Mr. Olunwa did not appear in Court. Mr. Adejonwo learned counsel to the appellant appeared presumably having been invited too by the learned trial judge. He addressed the Court on the question of the learned Judge’s competence to amend his own judgment. Thereafter the learned trial Judge, A. L.A. L. Balogun J., proceeded to deliver a judgment which, though long, undoubtedly showed industry and learning, and in which he discussed his court’s inherent jurisdiction to amend his judgment of 9th March, 1979. He recalled the said judgment of 9th March, 1979 and amended it correcting what he had referred to as fundamental errors. The result was the same as his judgment of 9th March. In other words, the plaintiffs’/respondents claims were dismissed in their entirety. The plaintiffs/respondents then appealed against the judgment of 12th March to the Court of Appeal. In order to emphasise the issue which the Court of Appeal dealt with, I find it necessary to set down the grounds of appeal.

They were in these terms:-