Credit Alliance Financial Services Ltd. V. Antoine Mallah (Suing by His Attorney, Emmanuel Ayodele) (1998)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A. 

he respondent as plaintiff had instituted action against the defendant now known as the appellant claiming as follows in his pleadings:

“(a) A declaration that the possession of flat 2 at No.2B Obadeyi Close, S. W. Ikoyi is unlawful as same was without the knowledge and/or consent of the plaintiff.

(b) The sum of four hundred naira (N400,000.00) being damages for the unlawful use and occupation of the said flat and furniture therein.

(c) Perpetual injunction restraining the defendant, its servants, agents and/or privies from continuing their unlawful acts by immediately vacating the premises and restoring all the furniture to reasonable state of repairs.”

The appellant filed a motion for extension for leave to file its statement of defence and it was granted. On 19/10/93 the defendant was absent in court and the trial proceeded with the hearing of the evidence of one Emmanuel Ayodele a done of the power of the attorney who described himself as a business man testifying for the respondent (plaintiff) who was absent in court. After his testimony he urged the court to give judgment in terms of the claim made. In his judgment the court below declared as follows:

“I hereby enter judgment for plaintiff against the defendant for the sum of N37,500.00 as general damages for the use of the furniture in the premises. Altogether, there shall be judgment for plaintiff against the defendant company for the sum of N387,500.00 as being claimed in the writ of summons.

From the totality of the evidence before me, it is undisputed that the plaintiffs were in both physical and constructive possession of the premises. So I hereby declare that the defendant possession of the flat 2 at 2B, Obadeji Close, S.W. Ikoyi since December 1990 is unlawful, illegal and unauthorized.”

By a motion dated 13/12/93 the judgment debtor the appellant applied for prayers along this line to wit:

“(1) an order extending the time within which the defendant/applicant can apply to set aside the judgment of this honourable court handed down of the 1st day of November, 1993;

(2) an order setting aside all the judgment of this honourable court handed down against the defendant on the 1st day of November. 1993;

(3) an order setting aside all the execution and enforcement of judgment processes already issued pursuant lo the said judgment, including the praecipe for the writ of execution dated 1st December, 1993,

the writ of fifa (if any) issued pursuant thereto and the judgment Form 41 (notice of attachment) issued out of the registry of this honourable court on the 8th December, 1993;

(4) an order of interlocutory injunction restraining the above named plaintiff and the deputy-sheriff of the High Court of Lagos State (whether by themselves or by their representatives, servants and/or agents or by whomsoever or howsoever otherwise), from making any attempts or further attempts or from continuing the processes or taking any other or further steps to execute and or enforce the judgment of this honourable court handed down on the 1st day of November, 1993 against the defendant pending the hearing and final determination of the issues raised under this application,”