Alhaja Abeni Bako & Ors. V Joseph Bolaji Laniyan & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

The plaintiffs sued the defendants before an Ikeja High Court claiming a declaration of right of occupancy in respect of a parcel of land, damages for trespass and injunction. In the course of the trial the plaintiff sought to tender a survey plan of the disputed piece of land. Learned counsel for the defendants objected on the ground that the witness through whom it was sought to be tendered was not the maker. The learned trial Judge in his ruling refused to admit the plan which was then marked “X” rejected.

The plaintiffs appealed against this refusal by a notice of appeal dated 31 May, 1990. The Court of Appeal allowed the appeal of the plaintiffs. But in doing so the lower court proceeded to set aside the judgment of the learned trial Judge delivered on 1 June, 1990 whereby the plaintiffs case was dismissed for refusing to proceed with the case when called upon repeatedly to do so by the learned trial Judge.

In order to appreciate the complaints in this appeal, it is necessary to relate the background facts. As I have already indicated, the learned trial Judge in the course of the trial rejected a survey plan sought to be tendered by the plaintiffs in a ruling dated 31 May, 1990. Mr. Lardner, SAN for the plaintiffs intimated the court that he would appeal against the decision within two hours. The court then adjourned further hearing to 1 June, 1990 to enable Mr. Lardner to bring his application for a stay of proceedings. The plaintiffs filed their notice of appeal against the ruling of 31 May, 1990 on the same day i.e. 31 May, 1990 as indicated by Mr. Lardner. That notice contains only one ground of appeal. It reads:

“1. That decision of the learned trial Judge rejecting in evidence the plan sought to be put in evidence is wrong in law in that the plan is admitted in the statement of defence,”

On I June, 1990 Mr. Lardner, SAN sought an order to stay further proceedings pending the determination of the plaintiffs’ appeal to the Court of Appeal. The application to stay further proceedings was refused by the learned trial Judge.

Mr. Lardner for his part asked for an adjournment to enable him to make a similar application for stay of proceedings before the Court of Appeal. The learned trial Judge refused to grant an adjournment. Rather he asked the learned counsel for the plaintiffs to proceed with his case. Learned counsel would not. He remained defiant. In consequence the learned trial Judge dismissed the plaintiffs’ case in its entirety.

On 17 August, 1990 the plaintiffs filed another notice of appeal dated 16 August, 1990 against the dismissal of his claim. That notice does not contain any grounds of appeal. Paragraph 2 thereof reads:

2. PART OF DECISION OF THE LOWER COURT

The decisions (i) refusing a stay of proceedings pending the determination of the appeal lodged against the ruling rejecting in evidence the plaintiffs’ composite plan showing

(a) the plaintiffs’ land

(b) the land claimed by the defendants; and

(c) the area of overlap which is the subject matter of the case.

(ii) dismissing the suit when the plaintiffs announced their inability to proceed further with the trial, the posture of the case then being that their action was bound to fail if they proceeded, as a judgment of the court respecting must be tied to a plan before the court and the plan of the land in suit had been rejected in evidence by the learned trial Judge.”

Paragraph 3 states: