Mrs Agnes Adebisi Adelekun V. MR. Bolaji Fahm & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment)

The Respondents filed Suit No. LD/537/2009 at the High Court of Lagos State, wherein they claimed as follows against the Appellant as the Defendant –

i) A Declaration that the claimants are the persons entitled to the ownership of the Land and building lying and being at No. 29, Makinde Road, Off Ojuelegba, Surulere Lagos (now known as 33, Western Avenue Surulere, Logos State).

ii) AN ORDER for possession of the property situate, lying and being at No. 29, Makinde Road, off Ojuelegba, Surulere Lagos (now known as 33, Western Avenue Surulere, Lagos State) which were let to the Defendant deceased husband under a monthly tenancy which was duly determined by a Notice to Quit dated 28/7/2008.

iii) N3,260,000.00 being arrears of rent for 163 months covering the period of 1st day of February, 1995 to 31st day of August, 2008 at the rate of N20,000,000 per month.

iv) Mense profit at the rate of N20,000.00 per month from the 1st day of September, 2008 until Possession is given up.

The Appellant filed an Application dated 2/3/2011 to amend her Statement of Defence but her Solicitors thereafter filed a Motion on Notice dated 8/3/2011 to withdraw representation for her at trial. Meanwhile, the suit was adjourned to 9/3/2011 for hearing. On the said 9/3/2011, the Application to withdraw representation was struck out by the Lower Court for failure to file and serve it within the prescribed time by the Rules of the Lagos State High Court Rules.

The suit was further adjourned to 12/4/2011 for trial, and on that day, the Application to amend her Statement of Defence was heard and granted, and trial commenced on that same 12/4/2011. The 2nd Respondent adopted her Statement on Oath and tendered 5 documents as Exhibits 1-5 in evidence. She was not cross-examined by the Appellant’s counsel, and was discharged.

The Appellant was ordered to open her defence but her counsel asked for a short adjournment”, which was refused, and she entered the witness box. She adopted her statement on oath, and told the lower Court that she had a “list of documents” she wished to rely on. The Respondents’ counsel had no objection, and it admitted “all the 8 documents listed in [her] list of documents to be relied on at the trial – – – as Exhibits D1-D8”. She was cross-examined by the Respondents’ counsel, and with no re-examination, she was discharged.

Thereafter, the Appellant filed an Application dated 11/5/2011, praying for –

1. An Order of Court granting leave to the Defendant/Applicant to recall the Claimants/Respondents’ witness in this suit.
2. An Order of Court granting leave to the Defendant/Applicant to recall the Defendant/Applicant Witness.

The Application was supported by a 36-paragraphs Affidavit. The Respondents did not file a counter-Affidavit and in its Ruling of 26/6/2011, the lower Court dismissed the said Application for being “unmeritorious and misconceived”.

Dissatisfied, the Appellant sought and was granted leave by this court to file a Notice of Appeal containing 1 Ground of Appeal against the said Ruling, and in line with our Rules, she distilled the following Issue for Determination there-from in her brief of argument settled by Ajibola Dalley, Esq., and that is –

“Whether the Appellant’s application to recall both the Appellant witness and Respondent witness for re-examination and cross-examination was rightly refused in the circumstances of this case?

The Respondents adopted her issue as formulated in their brief of argument prepared by Banjo Abass, Esq., and I will do same in dealing with this appeal.