Adeboanu Manufacturing Industries (Nigeria) Limited V. E. I. Adedeji & Anor (2000)

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ADEREMI, J.C.A.

Upon the death of the original plaintiff Alhaja Sidikatu Oshodi, the 2nd respondent (Olufemi Akiyode was substituted for her as the plaintiff. After some amendments of his pleading with the leave of the court, the plaintiff hereinafter referred to as the 2nd respondent claimed four reliefs at the Court below against the defendants (Adeboanu Manufacturing Industries Nigeria Limited and E. I. Adedeji) jointly and severally both of whom are hereinafter referred to the Appellant and the 1st Respondent respectively. The reliefs so claimed against the Appellant and the 1st Respondent jointly and severally in the Court below as per paragraph 20 of the further amended statement of claim are: –

(1) A declaration that the plaintiff is the person entitled to the issuance of a Certificate of Occupancy in respect of a piece or parcel of land lying, being and situate at Agindingbi village, Ikeja Division of Lagos State

(2) An order setting aside the Certificate of Occupancy No.10/10/1982J dated 18th of November, 1982 wrongfully granted to the first defendant by the Governor of Lagos State in respect of the land in dispute.

(3) N500.00 damages for trespass on the said land.

(4) An order for injunction retraining the defendants their servants, agents and/or privies from committing further acts of trespass on the said land.

The 2nd respondent led evidence in proof of the averments in his pleading by giving evidence personally and calling two witnesses. At the conclusion of the evidence of the plaintiff/2nd respondent, the case was adjourned on two occasions to enable the defendants react to the plaintiff’s case. When they failed to appear and neither was their counsel available, the Court took the final legal submissions of the court for the plaintiff/2nd respondent and thereafter adjourned for judgment on 28/2/97 on which day the Appellant brought an application “to arrest the judgment”. The application was filed on the day the judgment was to be delivered. Explaining the reason for the delay in filing the motion, Miss Odogun, learned Counsel for the defendants submitted that it was due to what she called inability to reach the court’s file; she prayed for a date to argue the application. Chief Pekun Martins, learned Counsel for the plaintiff/2nd respondent while alluding to the chequered history of the case, he urged the trial Judge to note that the defendants had voluntarily stayed away from defending the case since 1994. He admitted that counsel for the 1st defendant/appellant served him with summons for further directions on the morning of 28/2/97 – the date for the delivery of the judgment. He urged the trial Judge to ignore the application. In agreeing with the submissions of Chief Pekun Martins, the learned trial Judge (Olorunnimbe J.) observed inter alia:-

“This suit was filed in 1986. The 1st and 2nd defendants retained the firm of Solicitors – Messrs Wale Ajiboye & Co. who entered appearance for them Trial started on 4th October, 1994. The judgment is now about to be read… The motion is not before me now. Indeed, it has just been filed this morning. It is not correct as submitted by Miss. S. R. Odogun that they could not get the case file. On the 23/1/97, a counsel from Messrs Kayode Sofola & Co applied for and collected the certified true copies of the process file herein. I make bold to say that ‘arresting’ a judgment is unknown to our law. I am afraid I cannot accede to the request of Miss. Shakirat R. Odogun learned counsel for the applicants. The judgment shall be read, as it is hereby read”.

Consequently, the learned trial Judge proceeded to read the judgment on that day. The relief by the plaintiff were granted as prayed. Thereafter, the 1st defendant/appellant brought an application to set aside the said judgment and for an order staying the execution of same. After taking arguments of counsel, the Court below in a reserved ruling delivered on 1/8/97 dismissed the application. Being dissatisfied with the judgment delivered on 28/2/97, the 1st defendant/appellant entered a notice of appeal against it on 27/5/97 incorporating three grounds of appeal. Also, being dissatisfied with the ruling delivered on the 1st of August, 1997 the 1st defendant/appellant filed a notice of appeal against it with seven grounds incorporated. The notice of appeal was filed on 15/8/97. By order of this Court made on 10th April, 2000, the two appeals were consolidated distilled from two sets of grounds of appeal in the two notices of appeal are four issues which as contained in the Appellant’s brief of argument are as follows: –

(1) Whether the lower Court was right in proceeding to deliver judgment in the matter when an application that went to the root of the matter, to wit; the request by the defence to be let in defend was still outstanding to his knowledge?.

(2) Whether the lower Court was correct in not setting aside the judgment delivered in the matter in the circumstances of the case?

(3) Whether the parties to the suit were properly constituted bearing in mind the pleadings in the case when the Lagos State Government was not made a party to the suit?.

(4) Whether the lower court was right to have set aside the Certificate of Occupancy NO/51/51/1982J when no evidence had been adduced to impugn the irregularity of its issuance?.

The Respondent for their part raised two issues for determination and they, as contained in the Respondent’s amended brief of argument, are: