Mohammed Ibrahim V. Traclease Ltd & Anor (2007)

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ADZIRA GANA MSHELIA, J.C.A.

This is an appeal by the Plaintiff/Appellant against the judgment of Adebiyi J. sitting at the Lagos Judicial Division of the High Court delivered on the 29th day of April, 2004.

The appellant was the plaintiff in the lower court while the respondents were the defendants/counter-claimants. Appellant claimed against the defendant as per his statement of claim at page 5 of the record of appeal as follows:-

(i). The sum of N1,355,000.00 as special damages.

(ii). The sum of N200,000.00 as general damages.

Defendant on the other hand filed defence and counter-claimed as follows:-

“WHEREUPON the defendants counter-claim the sum of N703,000.00 being money had and received by the plaintiff with interest at 21% till final payment of the said sum.”

I find it necessary to briefly highlight the events that too place before the trial court. The suit was initially struck out on for want of prosecution. On 2nd December 2002 the trial court granted defendants/respondents’ application re-listing the suit earlier struck out on 19/03/01. On 20th January, 2003 the defendants/respondents’ application for extension of time within which to enter appearance and file defence and counter-claim was granted. After series of adjournments at the instance of plaintiff/appellant trial commenced on 30th October 2003. The defendant/respondents only witness gave evidence in chief in absence of the appellant who failed to appear in court though served. The matter was adjourned for adoption of written address.

When the written address of defendants/respondents was served on the plaintiff/appellant’s counsel, it was then plaintiff/appellant filed motion for change of counsel and same was granted. The appellant’s counsel made oral application on same date 10th December 2003 for time to apply for certified True Copy of the courts proceedings and it was refused by the court. On 5/1/04

Plaintiff/Appellant prayed for an order granting him leave to counter-claim and call fresh evidence in defence of the counterclaim.

The application was refused. Both counsel then filed written addresses. The learned trial judge on the 29th of April, 2004 entered judgment in favour of the respondent.

The appellant being dissatisfied with the decision has now appealed to this court. Appellant filed his Notice of Appeal which contained five grounds of appeal. The grounds of appeal without particulars are as follows:-

GROUNDS OF APPEAL

I. Error-in-law- The learned trial judge erred in law when it declare itself “Functus Officio” in respect of the ruling of 10th December 2003.