Chief N. P. Ugboaja V. Sodolamu Akitoye-sowemimo & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN. J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal NO. CA/L/136/98 delivered on the 30th day of April, 2001 in which the court struck out the appeal of the appellant against the judgment of the High Court of Lagos State in Suit No. ID/7307/90 delivered on the 21st day of November, 1996.

By a writ of summons filed on the 20th day of November, 1990, the original respondent claimed against the appellant as follows:-

“(i) Declaration that he is the registered proprietor of the parcel of land situate at 41, Ogundana Street, Off Allen Avenue, Ikeja, Lagos State or in the alternative is entitled to certificate of occupancy of the said parcel of land by virtue of a Deed of Conveyance registered as No. 48 in Volume 48 at page 1482 in 1975 in the Lagos Lands Registry.

(ii) N50,000.00 (fifty thousand naira) as damages for trespass on the said land.

(iii) Perpetual injunction to restrain the defendant from further trespass on the said land”.

It is the case of the respondent that he acquired a large piece of land including the land in dispute from one A. T BAKARE whose title to the land was confirmed by the Supreme Court in Suit NO. SC/121/74 between: A.T Bakare vs Owodina & Ors and a deed of declaration registered in favour of the said respondent’s predecessor in title as No. 50 at page 50 in Volume 1072 at the Lagos State Lands Registry, Lagos, which said title was again confirmed by the Supreme Court in another case, to wit, Suit No. SC/528/98 between Olowolagba & Ors vs R. A Bakare (1998) 3 NWLR (Pt. 643). The respondent stated that he had leased portions of the large parcel of land so acquired to third parties who developed their respective portions without let or hindrance; that the piece or parcel of land now in dispute between the parties forms part and parcel of the large piece or parcel of land acquired from the said A. T Bakare.

On the other hand, it is the case of the appellant as stated in his pleading that the land in dispute belongs to him tracing his title thereto to one S. A Bamisille as evidenced in a deed of conveyance dated the 16th day of October, 1975 and registered as No. 10 at page 10 in Volume 1528 in the Lagos State Lands Registry, Lagos, and the deed of assignment dated 7th June, 1983 and registered as No.74 at page 74 in Volume 1866 in the Lagos State Lands Registry, Lagos.

Both parties filed their pleadings, pleading the above facts. The respondent, as plaintiff, testified in support of his case and called two witnesses. On the 27th day of September, 1996, the plaintiff closed his case and the matter was adjourned to the 9th day of October, 1996 for defence to open.

When the case came up for defence on the said date, learned counsel for the defendant/appellant, Chief O. O. Ajala applied for an adjournment on the ground that:-

(1) he had a matter before the Supreme Court in Abuja and,

(2) he had filed an application for further direction on the 20th day of September, 1996 which application was fixed for hearing on 21/10/967.

It should be noted that the application for further direction was filed the same day the plaintiff closed his case and was not fixed for hearing on the date the defence was to open but about two weeks thereafter. The plaintiff’s counsel was opposed to the application for adjournment and requested the court to close the case of the defendant appellant as a result of which the trial judge ruled as follows:-

” I am of the view that the defendant has been given an opportunity to be heard and he is not interested (sic) in the utilization of that opportunity. In the circumstances, the case of the defendants shall be closed and it is hereby closed for his lack of interest in prosecuting his defence. Accordingly I so rule, case adjourned till 16th October, 1996 for address”.