Federal Housing Authority & Anor V Mr. A.A. Kalejaiye (2010)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C

The respondent as plaintiff sued the appellant as defendant in the Lagos High Court for the sum of N39, 340,800 as special and general damages for trespass and an order of injunction to restrain the 1st defendant from:

(a) Committing acts of trespass to the plaintiffs property being a house situate at House 9, “A” close, 7th Avenue, Festac Town, Lagos.

(b) Committing any further acts preventing the plaintiff from exercising his legal right of ownership over the said property of remaining on the said premises unlawfully.

The parties filed and exchanged pleadings. The defendants filed separate pleadings but did not appear in court to defend the case.

The plaintiff gave evidence and closed his case in June, 1997. After two adjournments at the instance of the defendants the learned trial Judge closed the case and reserved judgment since it was clear that the defendants were not defending the case. Before the close of the case learned counsel for the defendant cross-examined the plaintiff extensively.

In a judgment delivered by the learned trial judge on the 19th of March 1998 judgment was entered for the plaintiff as follows:

“In sum, I am satisfied that the plaintiff has proved his case by his uncontroverted evidence. He is entitled to judgment against both defendants. I accordingly find the two Defendants liable for trespass by going into the plaintiffs house, ejecting him therefrom and depriving him of possession of it. There will be judgment for the plaintiff for damages in the sum of N5,000 for trespass and a further sum of N9,557,300 being value of the plaintiffs property taken away by the 1st defendant and not returned to him.”

Finally, the learned trial Judge restrained the defendants from:

“(1) Committing further acts of trespass to the plaintiffs property, House No.9 ‘A’ Close 7th Avenue, Festac Town, Lagos.

(2) Committing further acts of preventing the plaintiffs from exercising his legal rights of ownership over the said property, House No. 9 ‘A’ Close, 7th Avenue, Festac Town, Lagos, or remaining on the said house unlawfully.

The defendants claim to have been aware of this judgment on the 24th of April, 1998 ie over a month after it was delivered. On the 27th of April, 1998 the defendants applied to set aside the judgment.

In a Ruling delivered on the 22nd of July, 1998 the learned trial Judge refused to set aside the Judgment and dismissed the application. On the 17th of November, 1998 the defendant sought for extension of time within which to seek leave to file Notice of Appeal. He withdraw the application and on the 27th of March, 2001 he filed an application before the Court of Appeal praying for the following Orders:

1. An order extending the time within which to seek leave to appeal against the judgment delivered by his Lordship Hon. Justice A.O. Silva on the 19th day of March, 1998
2. An order extending the time to file Notice of Appeal against the said judgment.
3. An Order granting leave to the applicants to appeal against the judgment delivered on the 19th day of March, 1998 by his Lordship Hon. Justice A.O. Silva.
4. An order deeming the Notice of Appeal already filed and served as duly filed and served.

In a considered Ruling delivered on the 9th of May, 2002, the Lagos Division of the Court of Appeal (Coram: Oguntade, Aderemi, Chukwumah- Eneh JJCA as they then were) found the application to be unmeritorious and dismissed it with costs of N4,000 to the respondent.