Mr. Joseph Adebayo Adedoyin V. Mr. Taiye Oniyide (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Ilorin, Kwara – State (Coram) Akoja (J) delivered on the 26th November, 2010 wherein the trial Judge, on oral application by the counsel to the Defendant/Respondent dismissed the Claimant/Applicant’s suit on the ground that Form 23 was not filed by the Appellant. The Appellant filed Form 24 out of time but failed to file Form 23.

The Appellant took out a writ against the Respondent on the 24th September, 2009 against the Respondent’s claiming the following reliefs:

“The Claimant is claiming from the Defendant general damages of Two Million N2,000,000,00) Naira for the following:

(1) Unlawful arrest and false imprisonment when the Defendant brought a policeman with a warrant of arrest and arrested the Claimant on 15th November, 2006 at his rented house at 5 Oke Aluko Agba Dam Housing Estate, Ilorin and took the Claimant police to the station and detained him there until he was bailed out.

(2) Trespass when the Defendant came to the Claimant’s apartment at 5 Oke Aluko Agba Dam Housing Estate Ilorin unlawfully and uninvited to disturb the quiet enjoyment of the Claimant’s premises on 14/11/2006.

(3) Assault and battery committed on the person of the Claimant on 14/11/2006 when the Defendant trespassed the Claimant’s rented apartment at 5 Oke Aluko Agba Dam Housing Estate Ilorin to wrestle with the Claimant and fell him down, beat him and also beat the Claimant’s wife and children.

(4) Malicious prosecution when the defendant set in motion judicial process of arrest, imprisonment and personally prosecuted the Claimant in a Chief Magistrate Court Ilorin and the prosecution ended in favour of the Claimant when the Claimant was discharged and acquitted on 18/2/2009

(5) For injuries suffered as the result of the above conduct on the Defendant which caused the Claimant not only personal injuries, pains and humiliation but also caused monetary damages for the expenses of defending the criminal trial at the Magistrate Court.”

On the 26th November, 2010, the learned trial Judge, in a reserved ruling held inter alia thus:

“The situation brings to the fore, the relevance and or applicability of the provision of Order 33 Rule 2 sub-rules (3) of the High Court (Civil Procedure) Rules, 2005 which provides thus:

(3) If the Claimant does not make the application in accordance with sub-rule (1), the defendant or defendants may do so or apply for an order to dismiss the action.”

The provision is mandatory and the court has no discretion in the matter.

Accordingly therefore, the Court holds that this suit is not competent for serious non-compliance with the rules of this Court.