Alhaji Moro Saadu Oloje V. Alhaji Wahab Alawo (2003)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE AMAIZU J.C.A.

This is an appeal against the ruling of Adebara J., of the Kwara State High Court, sitting, at the Ilorin Division of the Court. The ruling was delivered on the 20th day of Match, 2001.

The plaintiff, now the respondent, brought an action against the defendant, now the appellant, and a company known as Crown Flour Mills Ltd. In the said action, the respondent claimed against the appellant and the Crown Flour Mills Ltd. jointly and severally as follows –
“(a) A sum of N3,970,000 (three million, nine hundred and seventy thousand naira only) for the loss of use of his vehicle at the rate of N10,000.00 (Ten thousand Naira) per day with the exception of Sundays from 8th day of August, 1998, when his Bedford Lorry with registration number KW 7296 AC was unlawfully seized by the defendants herein till 15th day of November, 1999 and a subsequent sum of N10,000 (Ten thousand Naira) per day until the said vehicle is released to the plaintiff.

(b) A sum of N50,000 (Fifty thousand naira) being the general damages for unlawful seizure of the plaintiff’s lorry.

(c) An order commanding the defendants to release the plaintiff’s vehicle with registration number KW 7296 AC forwith without further delay.”

The respondent later brought a motion praying the court for leave to amend both the writ of summons and the Statement of Claim filed in the suit.

The court granted the application. The appellant was shown in the amended writ of summons and Statement of Claim as the sale defendant in the suit. In other words, the claim against Crown Flour Mills Ltd. was dropped. Consequently, the claim as stated above was against the appellant only.
By a motion on notice dated 1st March, 2000, the respondent applied to the lower court for the following reliefs:-
“(i) An Order commanding the defendant/respondent to release, the plaintiff/applicant’s vehicle with registration number KW 7296 AC forthwith which is in her custody since 8th day of August, 1998 pending the determination of this case.

(ii) And for such further order or orders as this Honourable court may deem fit to make in the circumstances of this case.”

The motion was served on the clerk of the appellant’s counsel. The clerk failed however to bring it to the notice of the appellant’s counsel. When the motion was called up for hearing, the learned trial judge after satisfying himself that there was proper service on the appellant’s counsel, heard the submission of the learned counsel for the respondent. The learned trial judge later adjourned the motion for ruling.

Before the date fixed for ruling, the learned counsel for the appellant got to know of the motion. He filed a motion on notice seeking the following reliefs-_
“(1) Leave and order of court permitting the defendant in suit No. KWS/188/99 who is the applicant herein to defend the motion filed by the plaintiff on 1/3/2000 seeking the court’s order for the release of vehicle No. KW 7296 AC.
(2) And for such further or other orders as this Honourable court might deem fit to make.”

The motion was supported by an affidavit. Paragraph 10 thereof reads –
“That the defendant’s counter affidavit which has been filed and served on the plaintiff’s counsel is also attached herewith as Exhibit A.”

The application was granted on 2/11/2000. The learned trial judge however in dealing with the respondent’s motion for the release of his vehicle refused to take into consideration the counter affidavit filed by the appellant in respect of the motion. He granted the application of the respondent and ordered that the appellant should release to the respondent –

“the vehicle with registration number KW 7296 AC forthwith which is in her custody since 8/8/96 pending the final determination of this case.”

The appellant was dissatisfied with the ruling. She has appealed to this court. Her Notice of Appeal dated 20th March, 2001, contains two grounds of appeal. Chief Odeyemi of counsel, distilled two issues from the said two grounds. They are –
(1) Whether by virtue of the leave to defend the interlocutory Motion granted by the trial court on 2/11/2000, the appellant was not entitled to use her counter-affidavit filed on 24/3/2000 to defend the motion.
(2) Having been fully seized of the undenied facts in the statement of defence filed on 24/3/2000 whether the trial court was right in ordering the appellant to release vehicle No. KW 7296 AC to the respondent forthwith.