Oba Jimoh Ajagungbade Iii V. Oba Samuel Adegboyega Osunbade (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the ruling of the Oyo State High Court of Justice in Suit No. 1/784/2001 delivered on the 12th of December 2011.

?The brief facts of the case are that the Appellant herein as Plaintiff took out a Writ of Summons and Statement of Claim against the Governor of Oyo State in 2001 as per his Writ at pages 3-8 of the record of appeal. The Respondent applied to be joined as Defendant to the suit. By an order of the lower Court, the Respondent was joined as the 3rd Defendant in the suit. On 25th March 2003, the Respondent filed a statement of Defence and Counter-claim against the Appellant alone.

The Respondent as 3rd Defendant/Counter- Claimant filed a motion dated 15th February 2009 to amend his Statement of Defence and Counter-Claim. Upon taking the arguments of counsel in the case, the learned trial Judge granted the amendments in part. The Respondent as 3rd Defendant/Counter-Claimant instead of filing the amended processes in line with the order of the Court amended his processes beyond the order of the Court dated 4//2/2011.

?Appellant by a motion dated 28th March,

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2011 challenged the competence of the amended Statement of Defence and Counter-Claim not having been amended in line with the leave of the Court granted the Respondent. The lower Court upheld the objection of the Appellant that there was no basis for the joinder of the Governor of Oyo State and the Attorney-General of Oyo State in the counter-claim. The Court struck out the misjoined parties and ordered the Respondent to file the appropriate Amended Statement of Defence and Counter-Claim within 7 days.

Appellant filed another motion on the 5th of July 2011 for an order setting aside the order directing the re-filing of the Amended Statement of Defence and Counter-Claim. The lower Court upon hearing the motion to set aside on the 12th of December 2011 dismissed the application for lacking in merit.

?Dissatisfied with the ruling, Appellant filed his notice of appeal on 22nd of December 2011. The record of appeal was transmitted to this Court on the 9th of March 2012. Appellant?s Brief of argument was filed on the 24th of April, 2012. Respondent?s brief of argument was filed on 30/10/12 but deemed properly filed and served on the

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13/6/2016.

At the hearing of the appeal, learned counsel for the parties adopted and relied on their respective briefs of argument. While learned counsel for the Appellant urged the Court to allow the appeal, learned counsel for the Respondent urged the Court to dismiss the appeal.

Learned counsel for the Appellant distilled three issues for determination thus:

(i) Whether the lower Court was right in not setting aside the order made in this case on 31st May, 2011 directing the counter claimant to re-file his amended statement of defence and counter claim within 7 days? (Grounds 1, 2 and 5).