Dr. Adebayo Adeniran V. Alhaji Alimi Togunde (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This appeal arose from an interlocutory application filed by the Defendant /Applicant now Appellant before this court, by way of a Motion of Notice dated the 8th of December, 2003. The Appellant, then Defendant/Applicant had prayed before Abimbola J. in suit No. 1/217/92 sitting at Ibadan in the Ibadan Judicial Division of oyo state High court.

MOTION OF NOTICE

TAKE NOTICE that this Honourable Court will be moved on the day of 2003 at the hour of 9′ Oclock in the forenoon or soon thereafter as counsel may be heard on behalf of the Defendant/Applicants for the followings:

(i) An order amending the statement of defence in terms of the schedule of Amendment attached

herewith.

(ii) An Order extending the time within which the Defendants may file his Counter Claim.

(iii) Such further or other orders as this Court shall deem fit to make in the circumstances.

Dated this 8th day of December, 2003.

The background facts before filing this Application is that, the plaintiff at the Ibadan High court claimed against the Defendant that the plaintiff is entitled to the Statutory/customary Right of occupancy of the parcel of land situate lying and being at Adekola Village, via Olode off Ife Road Ibadan, special and general damages and perpetual injunction restraining the Defendant from further acts of trespass.

Pleadings were filed delivered and exchanged by the parties and issues were joined. Five (5) witnesses gave evidence on behalf of the Plaintiff. The plaintiff gave evidence in chief and cross-Examination was in progress when the Defendant prayed the Lower court for leave to inter aria amend the statement of defence in terms of the scheduled of amendment attached to his application.

The plaintiff did not fire counter Affidavit but opposed the application on points of Law. The Learned Trial Judge in his ruling delivered on 7th January, 2004 dismissed the said application.

Aggrieved by the ruling of the Trial court, the Defendant sought and obtained leave to appear against the interlocutory decision and hence this appeal.

The Appellant fired a Notice of Appear dated the 16th day of January, 2004 which contains three (3) Grounds of Appear.