S & D Construction Company Ltd. V. Chief Bayo Ayoku & Anor (2002)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C:A. 

In suit No. ID/1221/95, the appellant (hereinafter referred to as the plaintiff) brought its suit against the respondents (hereinafter referred to as the defendants) claiming the fol1owing reliefs:

“(1) A declaration that the plaintiff is the owner of the leasehold interest of all the piece or parcel of land lying and situate at Isola Expressway more particularly described and delienated on the survey plan attached to the deed of lease dated 17th day of February, 1978 and registered as No.85 at page 85 in volume 1739 of the Lands Registry Office in Lagos.

(2) Damages for trespass committed by the defendants on the said land in the sum of N10,000.00.

(3) A perpetual injunction against the defendants their servants agents and/or their privies from committing further acts of trespass on the said land.”

The plaintiff later filed its statement of claim. The defendants filed an amended statement of defence and counter-claim dated 24/3/97. The defendants’ counter-claim was couched in these words:

“The 2nd defendant/counter-claimant repeats paragraphs 10, 11, 12, 13 and 14 above and clauses against the plaintiff for a declaration that the 2nd defendant/counter-claimant is the holder of and/or entitled to the right of occupancy in or over all that piece or parcel of land situate lying and being at and known as Plot 23 Block M in the Isolo Industrial Scheme along Isolo/Apapa Expressway, Ilasamaja in the Lagos State more particularly described and delienated in survey plan No. 118/SD/5C dated 11/1/82 with pillar No. TPA 6308, TPA 6125, TPA 1706 and TPA 1709 a copy of which survey plan is attached hereto and marked “Annexture A”.

The plaintiff on 7/4/2000 filed a 2nd amended statement of claim and defence to the defendant’s counter-claim.

As the number of suit reveals, it was filed in 1995. It was finally slated for hearing on 7th and 8th September, 2000. The court notes for 8/9/2000 reveal that the plaintiff and its counsel were not in court. The defendants’ counsel prayed the court to dismiss plaintiff’s case. The suit was accordingly dismissed with N1,200.00 costs in favour of the defendants.

Since the defendants had a counter-claim, the lower court allowed them to call evidence in support of the counter-claim. The defendants called two witnesses in support of the counter-claim and then closed their case. Defence counsel commenced the address in the course of which he sought to recall DW1. The request was granted by the court. At about 12.30 p.m. in the course of the evidence of DW1 on his recall, plaintiff’s counsel Mr. Biodun Bakare appeared in court. He explained that he had been unwell the previous day and was just coming from the doctor on 8/9/2000 when he appeared in court. The hearing proceeded with plaintiff’s counsel fully participating. At the end of the days proceedings, plaintiff’s counsel sought an adjournment to enable him cross-examine DW1, a request which the lower court granted. Three days later however, i.e. on 11/9/2000, the plaintiff’s counsel brought an application (1) that the lower courts order dismissing plaintiff’s claim be set aside and (2) that the defendants’ counter-claim be dismissed or struck out on the ground that the lower court had no jurisdiction. Holloway J. heard the application and in a ruling delivered on 18/10/2000 dismissed it.

Plaintiff’s counsel filed an appeal against the ruling of the lower court. Counsel then refused to cross-examine DW 1 or take a further part in the proceedings before the lower court. The lower court adjourned the case for judgment on the defendants’ counter-claim.

On 26/10/2000, judgment was delivered in favour of the defendants on their counter-claim. The plaintiff filed another appeal against the judgment of the lower court on the counter-claim.

In respect of the appeal against the order dismissing plaintiffs’ suit, the appellant has formulated the following issues for determination.

“3.01 Whether the learned trial Judge was right in refusing to set aside the judgment dismissing the plaintiff’s case in default of appearance when there was no hearing notice given in respect of the date the plaintiff’s case was dismissed?.