Dr. Tosin Ajayi V. Prince (Mrs.) Olajumoke Adebiyi & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C

This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on the 4th of July, 2000. The judgment of the Court Appeal affirmed the judgment of the High Court of Lagos State delivered on the 12th November, 1996. The facts of the case are that the plaintiff Oba John Ojomo now deceased commenced an action in the High Court of Lagos State against Dr. Tosin Ajayi as 3rd defendant the Attorney-General of Lagos State as 1st defendant and the Military Governor of Lagos State as 2nd defendant. By order of the trial court, the plaintiff amended his statement of claim on the 4th December 1995, and thereupon claimed against the defendants as follows:

(a) A declaration that the acquisition and/or revocation of his Right of occupancy by Lagos State Government of his land at Opebi Village Ikeja covered by the registered Deed of conveyance dated 7th July 1977 and registered as No.94 at pages 94 in volume 1635 Lagos State, is a nullity.

(b)An Order directing the immediate provision and grant to the plaintiff by the 1st and 2nd defendants of a parcel of land comparable in size in a comparable locality for a term of ninety years at a nominal ground rent of not more than one Kobo per annum free of all survey, stamping, registration and other charges.

Alternatively, against the defendants jointly and severally damages or compensation in the sum of N20,000,000 (Twenty Million Naira) for the unlawful confiscation and permanent eviction of the plaintiff from his aforementioned land.

(c) An Order directing the payment of mesne profits of damages or compensation for the unlawful occupation of the said land by the defendants from the date of purported acquisition thereof at the rate of N2,000,000 per annum until the date of payment.

The plaintiff unaware of the purported Notice of Acquisition was dismayed when the 3rd defendant relied on Lagos State Government Notice No. 140 contained in the Lagos State Gazette No. 11 volume 7 of 1974. The plaintiff engaged a Registered Surveyor, Ademola Ashipa who produced a composite plan LAT/90/LA/95; Exhibit E which showed that out of the plaintiffs land contained in his deed of conveyance; Exhibit A measuring 5592.184 square metres, only 1485 square metres edged Blue in area in Exhibit E falls within the area of Acquisition. It is evident from the composite plan; Exhibit E that the plaintiff’s land falls within his predecessor-in-title’s land Alhaji Isiba verged Green. The area verged Blue covered by the Notice of Acquisition encroached upon the plaintiff’s land verged Red.

The 1st and 2nd defendants, the Military Governor of Lagos State and the Attorney-General of Lagos State though were served with all Court processes did not file their defence to the case.

The 3rd defendant who filed a defence to the case, engaged in applying for several adjournments including filing motions to amend his statement of defence. At the stage when the plaintiff had closed his case, the 3rd defendant brought summons to dismiss or strike out the action for lack of jurisdiction on the ground that the case is statute barred by the limitation law of Lagos. Though it took the 3rd defendant three years after this suit was instituted before his statement of defence was filed, he did not plead facts raising the statute of limitation or the defence of Public Officers Protection Law Cap 114 Laws of Lagos State. The defence of Public Officers Protection Law and the Limitation Law of 1994 are special defences which in accordance with Order 17 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994 must be specially or specifically pleaded. The learned trial judge was however of the impression that the summons dated the 2nd of August 1996 brought after issues have long been joined by the parties and the plaintiff had called all his witnesses and closed his case was brought to stall the proceedings.

The learned trial judge after hearing arguments from both parties dismissed the application in its entirety and ruled that the 3rd defendant shall put up his defence and at the end of his defence he would be allowed to raise any point of law the learned senior advocate may wish to put up. The 3rd defendants counsel continued to apply for adjournments to contact the 3rd defendant. On the 27th of September, 1996 the learned trial judge refused to grant any further adjournment sought by the 3rd defendant in the matter and closed his case. On the 12th of November 1996 the learned trial judge delivered judgment and granted the reliefs sought by the plaintiff in the Amended Statement of claim (vide pages 137-147 of the record). The learned trial judge awarded the sum of N100,000 per annum with effect from 1st of January 1986 until possession is yielded.

Having been aggrieved by the decision of the learned trial judge the 3rd defendant appealed to the Court of Appeal. In the judgment of the Court, the learned justice relied on the cases of Odusote v. Odusote (1971) All NLR pg. 221 and Solanke v. Ajibola (1965)1All NLR 46 at pg. 54 to hold that:-

“With these number of adjournments at the instance of the appellant the impression, one gets is that he was not diligent. It is useless course for a party to continuously employ tactis to delay the disposal of cases expeditiously by 28th September, 1996 even after the series of adjournments, the appellants counsel was not sure of where the appellant was. Hence the learned trial judge was correct not to accede to further request for an adjournment for ample opportunity to hear his own side of the story has been given”. Vide pages 215 lines 5 – 13.

The Court of Appeal further held at pg. 217 lines 8 -15 that:

“That is what happened in the instant case. The respondent and the appellant had joined issues on their pleadings. Nowhere did the appellant plead facts raising issues of Notices of Acquisition and Limitation arising out of Public Acquisition Law which he now sought to raise in his summons for directions of 2nd August 1996.