Engineer Shamsideen Olanrewaju Yussuf V. Afolabi Ilori (2007)

LawGlobal-Hub Lead Judgment Report

MSHELIA, J.C.A.

By an amended writ of summons and amended statement of claim filed in suit No. ID/1713/91 at the High Court of Lagos State, Ikeja Judicial Division the respondent as plaintiff, claimed against the original appellant Air Marshall Nuraini Yusuff as the defendant the following reliefs:-

“1. A declaration that the plaintiff is entitled under native law and custom to the right of occupancy of all that piece or parcel of land situate, lying and being at Alagbade near Arowokoko Village, Lagos and more particularly described and delineated in plan No. 269 drawn by A. O. Craig, licenced surveyor.

2. The sum of N50, 000.00 as general damages for trespass committed by the defendant on the said land.

3. A perpetual injunction restraining the defendant, his servants, agents or privies from committing further acts of trespass on the said land.”

By paragraph 16 of the amended statement of claim, respondent claimed as per the amended writ of summons. The amended statement of claim did not contain different reliefs from that claimed in the writ of summons.

After the amendment respondent filed a motion on notice dated 30th September, 1993. The application was brought pursuant to Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 wherein respondent sought for an order for judgment in default of defence. The motion came up for hearing before Akande, J. on the 29th day of November, 1993. Appellant’s counsel Chief Oriade sought for adjournment on the ground that his client travelled out and he could not be briefed by him to enable him file a counter affidavit. Counsel for the respondent Mr. Okunuga opposed the application on the ground that the said application which was filed on 20th October, 1993 was duly served on the appellant on 23rd November, 1993. By Order 40 rule 5 of the Lagos State High Court (Civil Procedure) Rules appellant had 2 clear days to respond to the application. That the amended writ of summons and statement of claim were served 4 months ago. The learned trial Judge Akande, J. refused the application for adjournment and called upon applicant’s counsel to move the pending application. Mr. Okunuga moved the motion on notice and sought for an order for judgment in default of defence in accordance with Order 24 rule 11 of the High Court Lagos State (Civil Procedure) Rules, 1972. Chief Oriade on the other hand urged the court to dismiss the application on the ground that the order under which the application was brought was not appropriate since the respondent sought to recover land and not debt. The learned trial Judge in a considered ruling delivered on the same date 29th November, 1993 had this to say:-

“The Order 24 rule 11 is in my view very relevant and appropriate in this application. The said application therefore has merit, since the facts in the affidavit are uncontroverted. I take them as true and act on same. In the circumstances, the application succeeds order as prayed per prayer on the motion papers.”

Being dissatisfied appellant appealed to this court by filing a notice and grounds of appeal dated 1st day of December, 1993 which same appeared on page 36 of the record. The notice of appeal contained three grounds of appeal. The three grounds without particulars are as follows:-

Grounds of Appeal:

(1) The learned trial Judge, the Honourable Justice Inumidun Akande (Ms) erred in law in refusing to exercise her inherent jurisdiction to grant the application of the defendant/appellant for an adjournment of the hearing of the plaintiff/respondent’s motion for an order for judgment in default of filing a statement of defence.

(2) The learned trial Judge erred in law in making an order entering judgment and awarding costs of N500, 000.00 in favour of the plaintiff/respondent under Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 in default of filing a defence.

(3) The learned trial Judge erred in law in failing to dismiss the motion of the plaintiff/respondent for an order entering judgment under Order 24 rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 in default of filing defence.

In compliance with Order 6 of the Court of Appeal Rules, parties exchanged briefs of argument. Appellant filed amended brief of argument on 8/02/07. While respondents brief was deemed filed and served on 13/05/07. Appellant did not file reply brief.