Alhaji Saka Ashiru V. Idris Ayoade (2005)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

The plaintiff who is the respondent herein claimed against the defendant who is the appellant herein the following relief:

“(1) Declaration that the plaintiff is entitled to the statutory right of occupancy to the piece of land situate, lying and being at Sango area along Ilesa Ibaripa Road, Saki more particularly delineated on survey plan number LS AT/Y/149 drawn and signed by W. T. Adeniji dated 4th day of June, 1993 edged red on an area of 1086.112 square meters.

(2) The sum of one hundred thousand naira (N100, 000.00) only being aggravated and general damages for trespass and unlawful demolition of the plaintiff’s foundation erected on the land in dispute.

(3) An order of perpetual injunction restraining the defendant, his agents, privies, servants or any other person whatsoever from further acts of trespass on the said land in dispute.”

On his part the appellant in his statement of defence and counter-claim also claimed the following reliefs against the respondent:

“(1) A declaration that the defendant is entitled to a statutory right of occupancy to that piece or parcel of land situate lying and being at Saka Mechanic Area along Ilesha Ibaripa Road measuring approximately 1762.116 square metres more particularly delineated in survey plan No. LW 131.93 filed by the defendant in this suit and verged red on the plan.

(2) Injunction restraining the plaintiff, his agents and/or servants or any person or persons claiming title through him from interfering with the defendant’s ownership and possessions of the said land.”

At the trial, four witnesses gave evidence in support of the plaintiff’s case. And four witnesses including the defendant himself gave evidence for the defence. The DW3 and the defendant himself testified on the 4/7/94. The matter was adjourned to the 11/7/94 from whence the events which have given rise to this appeal really started.

On that 11/7/94, although the plaintiff had been stated to be very ill and bedridden, the parties were recorded to be present. Counsel for both parties was also present in court. Learned counsel for the defendant told the court that his last witness was not in court. This is at page 33 line 42 of the record. The reason for his absence was not recorded thereat. But from the remarks of the trial Judge on the 18/7/94 at page 34 lines 14-16 of the record, the witness was reportedly absent due to sickness. The matter was however adjourned to the 18/7/94. The learned trial Judge remarked that that would be the last adjournment.

On the 18/7/94, the parties were in court. But learned counsel for the defendant wrote for further adjournment apparently due to scarcity of fuel. The application for adjournment was from the record opposed by learned counsel for the plaintiff. And the learned trial Judge reacted in the following terms:

“I mentioned to him at the last adjournment that the adjournment then would be the last adjournment, he has now shifted his reason for adjournment from the sickness of his possible witness whom he said to be ill for another two months to scarcity of fuel. There is no doubt in my mind that the defence counsel is adopting all sorts of delay tactics to frustrate the court from finishing the case as quickly as possible. I am not disposed to granting any further adjournment at this stage.

Mr. Siyanbola says he is opposing the application for another adjournment because the previous adjournments were at the instance of the defence counsel based on flimsy excuses. He says a motion on notice was filed by the plaintiff’s counsel on 6/6/94 praying the court to enter judgment as per the writ of summons. Urges the court to grant the application by refusing further adjournment.

Order: Application is hereby granted. The court will deem it as the defence has decided to close the defence.