Daniel Asiyanbi And Others V Emmanuel Awe Adeniji (1967)

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COKER, J.S.C. 

This application is a sequel to the Judgment delivered by this Court in the substantive appeal in this case on the 4th March, 1966. In the substantive appeal the appellants were the defendants and the respondent the plaintiff in an action which originated from the High Court, Ibadan. The claims were for a Declaration of Title to a parcel of land known as Oke Awo in the He district of Western Nigeria and an Injunction to restrain the defendants from acts of trespass on the land.

In the course of the proceedings in the High Court and after the delivery of the plaintiff’s Statement of Claim, the defendants purported to file a counter-claim against the plaintiff asking for a Declaration of Title to the same land which the case of the plaintiff involved. The defendants eventually filed their Statement of Defense but made no specific reference therein to their counter-claim although in their evidence at the trial they stated that they claimed as per their counter-claim. At the end of the hearing the learned trial Judge gave Judgment in favor of the plaintiff allowing his claims. He also stated, as regards the counter-claim filed by the defendants, that it was dismissed.

The defendants appealed to this Court and after hearing the arguments of Counsel on both sides this Court gave Judgment as stated on the 4th day of March, 1966. The concluding portions of the Judgment so far as they are relevant to the present application are as follows:–

“There was a counterclaim by appellants for a declaration of title to the land in dispute. We think it proper to observe in passing that as a counterclaim, the claim was hardly properly before the Court; it was filed out of time and without leave of the Court (See Order 20 Rule 4 High Court Rules Western Nigeria). In any event, it should have been brought by way of a cross-action. The counterclaim was, however, dismissed and there has been no appeal against the order.

Accordingly, it is ordered that the Judgment and order for costs made by the High Court Western Nigeria in Suit I/195/59 in so far as it relates to the principal claim are hereby set aside, and in their place we order that an order of dismissal be entered in respect of the plaintiffs’ claim. There has been no appeal from the order dismissing the appellants’ counter-claim which must therefore stand.”

Later, in accordance with the practice of this Court, the Judgment was entered and a formal order drawn up thereon in the following terms:-

“UPON READING the Record of Appeal herein and after hearing Chief F. R. A. Williams (Mr. Biodun Sanni with him) of counsel for the Appellant and Mr. Olu Ayoola of counsel for the Respondent:

IT IS ORDERED:

1.That the judgment and order for costs made by the High Court Western Nigeria in Suit I/195/1959 in so far as it relates to the principal claim be hereby set aside;

2. that an order of dismissal be entered in respect of the plaintiff’s claim;

3. that the order dismissing the appellant’s counter-claim do stand;

4. that the costs of this appeal be fixed at 60 (sixty) guineas to the Appellant.”

The defendants obtained a copy of the drawn-up order, obviously had some qualms about such parts of it as concerned their counter-claim and so brought the present application in which they sought for an order:–