Ibrahim & Ors v. Akinrinsola (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Lead Judgment)

This is an appeal against the judgment of the Court of Appeal, Lagos Division Coram: Bode Rhodes-Vivour JCA (as he then was), Paul A. Galinje JCA (as he then was) and Hussein Mukhtar (JCA), delivered on Thursday 14th January, 2010 striking out the Appellants’ application for leave to appeal and enlargement of time within which to appeal.

The 3rd Appellant’s claim against the Respondent at the trial High Court of Lagos State as endorsed on the Writ of Summons and Statement of Claim is as follows:
i) Possession
ii) Mesne Profit at the rate of N250,000 (Two Hundred and Fifty Thousand Naira) per annum until possession is given up.

While the Respondent’s counter-claim against the 3rd Appellant at the trial Court as endorsed on the Amended Statement of Defence and Counter-claim is thus:

“i) Specific performance of the agreement between the Plaintiff and the Defendant’s husband whereby the title in all the piece of land, all the buildings built thereon together with all the appurtenance thereon situate at 11B, Hinderer Road, Apapa, Lagos State was to be transferred to the Defendant’s Husband.

ii) Alternatively
a. The sum of N7,950,000.00 (Seven Million Nine Hundred and Fifty Thousand Naira) which the Plaintiff owes the law firm of Fola Akinrinsola, Ojo & Co., in legal retainership fees for the work done and services rendered by same as the Plaintiff’s retainership solicitors, company secretary and legal director.
b. Interest at the rate of 21% per annum on the said sum of N7,950,000.00 (Seven Million Nine Hundred and Fifty Thousand Naira) from the 1st day of September, 1992 till judgment is delivered in this matter.”

The Respondent subsequently filed an application on 21st of November, 2000 to strike out the 3rd Appellant and or dismissing the suit on the basis that the 3rd Appellant was no longer a legal entity or juristic person having been wound up by the Corporate Affairs Commission on the 4th of March, 1997.
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The 1st and 2nd Appellants also filed an application to join as Claimants in the suit at the trial Court. The Respondent’s and the 1st and 2nd Appellants’ aforesaid applications were consolidated and after hearing argument on both applications, the learned trial Judge dismissed the suit with costs on the basis that the 3rd Appellant was no longer a legal entity vide a ruling delivered on the 12th of November, 2003.

It is noteworthy that the 1st and 2nd Appellants were not joined as parties to the suit by the trial Court before the suit was dismissed. The suit at the trial Court was Suit No. LD/5014/94, HERWA Ltd. v. Mrs. Fola Akinrinsola (for herself and on behalf of the Estate of Late Fola Akinrinsola).

The Appellants subsequently filed an application at the Court below on 22nd of January, 2009 for extension of time for leave to appeal, and enlargement of time to appeal etc. against the decision of the Honourable Justice Marsh of the High Court of Lagos State delivered on the 12th day of November, 2003 in which the suit of the 3rd Appellant was dismissed.

After hearing the Appellants’ application, the Court below struck out same on the basis that it was incompetent, the Appellants having failed to exhibit the decision of the trial Court sought to be appealed against by the Appellants. The ruling of the Court below delivered on the 14th of January, 2010 struck out the Appellants application for leave to appeal and enlargement of time within which to appeal dated 21st of January, 2009.

The Court below held that where there is no judgment of the trial Court, it is impossible to proceed with an appeal against the said judgment. It ruled the application incompetent, struck same out and also ruled that an order for trial de novo cannot be made “because the applicant is not an appellant”.

Dissatisfied with the said decision of the Court below, the Appellants filed a notice of appeal dated 16th of March, 2020 containing two (2) grounds of appeal, urging this Court to grant reliefs to set aside the ruling of the Court below and remit the case back to the High Court to start de novo.

In the brief settled by Sylvester Imhanobe, Esq., for the Appellants, learned Counsel distilled two issues for determination to wit:

1. Whether the learned Justices of the lower Court were not wrong in giving the word ‘shall’ in Order 7 Rule 7 of the Court of Appeal Rules, 2007a peremptory meaning.
2. Whether upon the proof that the judgment in Suit No. LD/5014/94 cannot be found in the High Court of Lagos State Registry, the learned Justices of the lower

Court were not in error in refusing to remit Suit No.D/5014/94 back to the High Court to be heard de novo.
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The learned Counsel for the Respondent, Mr. Afolabi Seriki, Esq., submitted a sole issue for determination, thus:
“Whether the learned Justices of the Court of Appeal were right in striking out the Appellant’s Motion on Notice dated 21st of January, 2009 but filed on the 22nd of January, 2009 for leave to appeal and enlargement of time to appeal against the decision of Honourable Justice Marsh of the High Court of Lagos State delivered on 12th of November, 2003 dismissing the suit herein.”