Mukaila Owolabi & 11 Ors. V. Wosilatu S. Bello & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of an Ogun State High Court Holden at Ijebu-Ode Judicial Division, delivered on the 26th of March, 1998.

The hearing of this case originated from Ota Judicial Division and Judgment delivered at Ijebu-Ode Judicial Division where the learned trial judge was transferred to. The Respondents in this appeal who were the Plaintiffs at the lower Court by paragraph 15 of their amended Statement of Claim claimed as follows:

(1) Declaration of Statutory Right of Occupancy of the parcel of farmland at Iloye vs. Temidire, Sango Otta, Ogun State as per the Survey Plan

(2) N1, 000.00k damages for trespass committed by the Defendants, their servants, agents and or privies on the land aforesaid.

(3) Permanent injunction restraining the Defendants, their servants, agents and/or privies from further acts of trespass therein.

Pleadings were exchanged amongst the parties and the case was opened and tried. After series of adjournments, precisely on the 26th of March, 1998 when the learned trial Judge was to deliver judgment in the consolidated suits, learned Counsel for the Appellants brought a motion to arrest the judgment. The motion is dated 11th March, 1998 and filed in Court on the 12th of March, 1998 alleging that due to the default and/or negligence of the Counsel and not that of the Appellants urged the Court not to visit the fault of the Counsel on the Appellants. On the said motion, the trial Court held as follows:

“I do not consider this is a case in which my judgment should be arrested and the case reopened as the Plaintiffs Counsel had addressed the Court on 10/3/98 and judgment reserved till today”

The learned trial Judge delivered the judgment on the 26th of March, 1998 and granted the Respondents claims in their writ of summons.

Appellants being dissatisfied with the said judgment appealed to this Court to set aside the said judgment on the ground that the proceedings and the judgment are vitiated by the breach of the principles of natural justice and Section 33(1) of the 1979 Constitution. Appellant’s notice of appeal is dated and filed on the 29th of April, 1998 containing three grounds.

In compliance with the rules of this Court, parties exchanged briefs of argument. Appellants’ brief of argument was settled by Otunba Olatunji O. Ogunyemi on the 14th of September, 2004 while the Respondents brief of argument was settled by Mr. Akinlolu Omoyinmi on the 15th of November, 2004. Appellants in their brief of argument raised three issues for determination as follows:

(1) Whether, the Appellants who were the Defendants at the trial Court were afforded the opportunity to fair hearing based on the principles of natural justice

(2) Whether the Appellants while before the trial Court were afforded their fundamental and Constitutional right to fair hearing as Constitutionally guaranteed by Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 now Section 36 (1) of the 1999 Constitution

(3) Whether the learned trial Judge had not visited the default, mistake and inadvertence of their Counsel Chief E. O. Madandota on the Appellants during the hearing and trial of the suit, thereby denying them opportunity of fair hearing