Seye Oladejo V. Dr. Muiz Adeyemi Banire (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DR. MUIZ ADEYEMI BANIRE Respondent(s) (Delivering the Leading Judgment)

This appeal is against the Ruling of OPESANWO J of the Lagos State High court delivered on the 15th February 2012, wherein the ruling was for continuation of trial witnesses being present in the court and that a filing of the interlocutory application is no automatic right to suspend trial for any reason whatsoever.

The fact of the case is as follows:

The trial had commenced with about six witnesses whose evidence had been taken in the matter of Libel in which, Claimant/Respondent by the writ of Summons and Statement of Claim dated 24th December, 2007 claimed for:

1. The sum of N50,000,000.00 (Fifty Million Naira) as damages for injurious publication by the Defendants in the 2nd Defendant’s edition of Friday, the 24th day of August, 2007 on Page 20 thereof and which publication was deliberately calculated to disparage and lower the reputation of the Claimant before the right thinking members of society.
2. Public apology to be published in conspicuous pages of two widely published Newspapers.
3. The costs of this Action”

See pages 1 to 7 of the record of appeal.

The Defendant/Appellant’s counter-claim against the Respondent is as endorsed on the 2nd Amended Statement of Defence as follows:

“The sum of N20,158,800 (Twenty Million, One Hundred and Fifty Eight Thousand, Eight Hundred Naira) being damages for assault and battery on the Counter-Claimant by the Defendant to the Counter-Claim and his servant or agents (thugs) on the 16th of December, 2007.”

While the case was part heard, the Appellant/ Defendant applied to further amend his Statement of Defence which was granted on 25/1/12, consequent upon which the Appellant filed the 2nd amended Statement of Defence and filed a motion dated 13/2/13, praying the court for the following reliefs:

(i) An order striking out the Writ of Summons and Statement of Claim in the suit herein both dated the 24th of December, 2007 on the ground that they were signed by a person whose identity is not disclosed and who is not a Legal Practitioner,

(ii) An order striking out the Claimant’s claim in the suit herein.

When the suit came up before the trial court on the 15th of February, 2012 the Appellant’s aforesaid application dated the 13th of February, 2012 was brought to the attention of the court and the fact that the Respondent’s solicitors had been served with same two days earlier. The Appellant’s counsel suggested that since the Respondent’s counsel was still within time to respond to the application that the matter be adjourned for the hearing of the said application.

The Respondent’s counsel objected to the Appellant’s counsel request and insisted that trial must continue notwithstanding the pendency of the Appellant’s application dated 13th of February, 2012, which challenges the competency of the suit herein and the jurisdiction of the trial court to entertain same. After listening to arguments from counsel to the Appellant and the Respondent on the propriety of hearing the Appellant’s pending application before proceeding with further trial, the learned trial judge by virtue of a ruling delivered on the 15th of February, 2012 held that trial must continue on the said date since the motion was not ripe.

The trial court also ordered continuation of cross-examination of the Respondent by the Appellant’s counsel. As a result of the aforesaid the Appellant’s counsel concluded his cross-examination of the Respondent on the 15th of February, 2012 while the trial court adjourned for continuation of hearing or any pending motion.

The Appellant being dissatisfied with the ruling filed a Notice of Appeal dated 27th of February, 2012. The sole ground of appeal reads thus: