Mrs Margaret Aderinsola Vogt & Ors V. Mrs Susan Modupe Akin-taylor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the Honourable Justice Nwaka sitting at the High Court of Lagos State in Ikeja delivered on the 25th day of June, 2009.

The facts that led to this appeal are as follows:

The Claimants now the Appellants commenced an action at the High Court of Lagos, Ikeja division on the 26th day of October, 2007 praying the court to declare as a nullity the Judgment of the High Court of Lagos State delivered by Gbaja-Biamila J. in the case of Mrs. Susan Modupe Akin-Taylor V. Mrs. Margaret Aderinsola Vogts & Ors with suit No. ID/741/2000. The Appellants also sought an Order setting aside the said judgment and restraining the Respondent from giving effect to the judgment.

The Defendant, now the Respondent in reply filed a statement of defence and counter claim dated the 21st day of December, 2007. In the counter-claim, the Respondent sought the following reliefs:

1. A declaration that the Judgment of the Hon. Justice O. Gbaja-Biamila of the High Court of Lagos State dated 3rd of July 2003 in suit No: ID/741/00 is regular and valid and occasioned no miscarriage of justice to the claimants
2. An Order granting leave to issue a writ of execution/attachment and sale against the 7 storey building situate at No. 2, Allen Avenue, Ikeja Lagos State being one of the properties of Late Chief Gabriel Akinmade-Taylor in respect of which probate was granted to the Claimants/Judgment debtors on the 28th day of February, 1998 in satisfaction of the Judgment debts in suit No. ID/741/00 – Mrs. Susan Akin-Taylor V. Mrs. Aderinsola Vogts & Ors and Suit No. ID/250M/2004 Mrs. Susan Akin-Taylor V. The Administrator-General & Public Trustee of Lagos State & Anr., respectively.
3. Such further Order and/or direction as may be deemed necessary in the circumstances of this case.

On receipt of the Respondent’s statement of defence and counter-claim, the Appellants filed a motion on notice dated 24th April, 2008 with a written address praying the court to strike out the Statement of Defence and counterclaim on the ground that it failed to disclose any Defence and cause of action and/or may prejudice, embarrass or delay the fair trial of the action. The Respondent, in response, filed a counter-affidavit with a written address dated 3rd of June, 2008. Issues were joined at the trial court and the court in a ruling delivered on the 25th day of June, 2009, dismissed the Appellants’ motion on notice.

The Appellants, being dissatisfied with the ruling of the trial court has brought this appeal. The Appellants’ brief was not dated, but was filed on the 29th of April, 2010. It was deemed filed on 2/11/10. The Respondent’s brief was dated 29th of November, 2010 and filed on the 30th of November, 2010.

The Appellants’ Counsel, Tochukwu Orakwue identified one sole issue for determination which is stated below:

“Whether the failure of the Learned Trial Judge to consider the submissions of the Appellants has led to a miscarriage of Justice”

Similarly, Counsel to the Respondents, Mercy Oseghale (Miss) identified one issue, that is:

“Whether the learned trial Judge was right in dismissing the Appellants’ Motion on Notice which prayed to strike out the Respondent’s statement of defence and counter-claim and setting the matter down for hearing on the merits”

It seems to me that the issue identified by both learned Counsel are the same, even though they are differently worded. I have therefore decided to rephrase the sole issue before this court for determination as follows:

“Whether the ruling of the trial court dismissing the Appellants’ motion on notice and setting the matter down for hearing on the merits led to a miscarriage of justice”

On this issue, the Appellants’ Counsel submitted that the trial court misdirected itself, when in its ruling, it refused the Appellants’ application to strike out the Defendant’s/Respondent’s statement of defence and counter claim. He contended that the lower court arrived at its decision without considering the submissions of the Appellants on the sole issue for determination in the written address supporting the motion for striking out. He argued that this occasioned a miscarriage of justice. He cited IROLO V. UKA (2002) 14 NWLR Pt. 786 Pg. 195 @ 225; OKONJI V. NJOKANMA (1991) NWLR Pt.202 Pg.131