Akinsola Dawodu & Anor V. F. O. Ologundudu & Ors (1986)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.C.A.

This is an appeal by the second defendant against the ruling of Ayorinde, dated the 21st day of November, 1985. This matter first came before this court as an application for a stay of execution dated the 30th day of January, 1986. Because of the nature of the issues involved, this court decided to hear the appeal on the bundle of papers exhibited to the motion paper and such other relevant papers as the parties may deem it necessary to file rather than hearing the issues twice. So with the consent of counsel on both sides the application was converted into an appeal. Briefs were duly filed by counsel on both sides.

At the beginning of the hearing of the appeal there was a minor argument as to whether the appeal was filed within time as the notice of appeal Exh. C to the original application carries the date 30th of January, 1986. The learned counsel for the appellant was able to satisfy us that the appeal was filed on the 5th of December, 1985 as per Exh. C to the further affidavit of Mukaila Bello sworn to on the 22nd of April, 1986; that is, on the 14th day of the ruling appealed against.

The facts of the case bring out vividly the some-what important points of procedure that fall to be decided in this appeal. On the 25th of May, 1974, the plaintiffs commenced an action against the first and 2nd defendants for a declaration of title to land and N200.00 damages for trespass. The writ of summons was served personally on the 2nd defendant on the 7th of June, 1974. He duly entered an appearance through his counsel whose address was endorsed on the memorandum. Pleadings were duly filed and exchanged.

Thereafter trial commenced before Oluwa, J., at the Ikeja Division of the Lagos State High Court. When the learned Judge was transferred to the Lagos Division of the High Court, he continued the hearing of the case there, but could not complete the hearing before he retired from service. The case was subsequently assigned to Ayorinde, J. On the 18th of October, 1983, he ordered hearing notices to be served on the parties. When the matter came up for mention in court on the 12th of February 1984, the learned Judge noted that hearing notices had been served on all the parties save the second defendant. It ought to be mentioned, too, that those other parties to the suit, although served and had duly entered appearance and had all filed their statements of defence, showed no further interest in the matter. Further, on the 13th of February, 1984, the learned Judge ordered that service of the hearing notice on the second defendant be effected by a single insertion of an advertisement in the “Daily Times of Nigeria.” The plaintiffs maintain that the order was carried out on the 13th of April, 1984. But the 2nd defendant swore that neither he nor his counsel saw the advertisement. On the 21st of March 1985, the trial of the case commenced de novo. Then on the 25th of March, the learned Judge directed the learned counsel for the plaintiffs to write a letter to the counsel for the second defendant informing him that the trial of the case had commenced. The learned counsel for the second defendant, Mr. Shomade, maintains that at the time he got the letter the hearing of evidence had been concluded. On the other hand, the learned counsel for the plaintiffs, Chief Shodipo maintains that the letter dated the 25th day of April, 1985, was signed for and on behalf of the second defendant on the same day. What is clear is that on the 28th of March, 1985, plaintiff’s evidence closed. No oral evidence was called to resolve the issues as to when precisely the letter in question was received by the second defendant or his counsel. The second defendant first appeared in court on the 7th of May, 1985. A junior in Mr. Shomade’s Chambers, Mr. Atolagbe, appeared for him. According to the court’s record, Mr. Atolagbe was recorded as saying:

“We intend to call evidence. We filed our statement of defence.”

Then Mr. Shodipo is recorded as replying:

“If he wants to put his witness in the box I would not object. The defendants were given notice in the press and letters were written to them. Mr. Shomade and Nwanze came to court once.”

When the court ruled that defendant should proceed to give evidence Mr. Atolagbe is again recorded thus,

“I am asking for one hour’s stand down. It is 11.05.”

After the short adjournment, hearing commenced. All that transpired showed that the 2nd defendant was not prepared for hearing on that day, and so at a certain point learned counsel had to ask for an adjournment, and the court adjourned with costs. On resumption, on 16th May, 1985, Mr. Shomade himself appeared. He stated thus:

“I was not served with the hearing notices when this matter was transferred to this court from Mr. Justice Oluwa where it was partly heard from 1979 September to 14th July, 1983. I never saw the advertisement in the Daily Times. Order 5 rule 1, when a person is represented by legal practitioner preliminary service should be made to him. I require time to read the Record of Proceedings before I can continue with the case of the second defendants.”

On the opposition of the learned counsel for the plaintiff, the learned Judge insisted that the second defendant should first conclude his evidence in chief after which he would consider the application for an adjournment. After the cross-examination of the second defendant, Mr. Shomade repeated his application for an adjournment to enable him considers his position in the matter, and the case was adjourned. Thereafter, on the 7th of June, 1985, the second defendant, by a motion on notice prayed the court for an order,

(i) setting aside the proceedings in the suit on the ground that it was commenced and heard in the absence of the second defendant and that no hearing notice was served on him; and