Uche Obi V. Madam Rahoto Ogunbiyi (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an Interlocutory appeal against the decision of the High Court of Lagos State Coram L.A. Okunnu (Mrs) J, delivered on the 4th of September, 2009, relisting suit No. ID/1482/2003 which was struck out on 10th October 2006 upon a motion on notice dated 31st July, 2006, by the Claimant (Respondent) in this present appeal, without affording the Defendant (Appellant in this present appeal) an opportunity of being heard in opposition, and without first hearing and determining, an earlier preliminary objection by the Defendant dated 30th June, 2009.

Simply put, the facts culminating in this appeal are as follows:

The Respondent (Claimant at the lower court) had by Writ of Summons and Statement of Claim dated 29th of September, 2003 and filed on same date, sought the following reliefs against the Defendant (Appellant) at the lower court viz:

(a) A declaration that the Plaintiff is the bona fide and beneficial owner of the parcel of land covered by Lagos State Certificate of occupancy registered as No. 63 at page 63 in volume 1996 AB and a person entitled to absolute possession and which parcel of land is more described with abuttals and dimensions delineated on survey plan on LAT/38C/LA/91 drawn by Lat Survey Consultants dated 4th February, 1991 situate at Apakun Oshodi, Lagos State.

(b) An order of perpetual injunction restraining the Defendant whether by himself, his agents, workman, privies, servants and legal representatives from further committing any or further acts of trespass on the parcel of land now in dispute.

(c) The sum of N200,000.00 (Two Hundred Thousand Naira) being damages for acts of trespass committed by the Defendant on the Plaintiff’s parcel of land.

As reflected at page 22 of the Record of Appeal, the suit was struck out on the 10th of October, 2006, for absence of counsel for the respective parties, and non diligent prosecution, by Hon. Justice Z.A. Ashiyanbi of Ikeja Judicial Division of the High Court. There was no letter from learned counsel explaining their absence.

The case was subsequently, on the 4th of December, 2007, re-assigned to another Judge, O.A. Ipaye (Mrs) by Justice L.G.A. Marsh – Administrative Judge – (Page 26 of the Record of Appeal) upon application for its reassignment – (page 25 of the Record of Appeal) who on the 10th of November, 2008, made an order for its accelerated hearing, and the claimant was directed by the Judge to comply with Order 25 Rule 1 forthwith and serve Forms 17 and 18 0n the Defendant. The matter was adjourned to the 1/12/2008 for pre-trial conference (page 27 of the Record of Appeal).

This is because, from records, the Defendant (Appellant in this appeal) did not respond to motion on notice for injunctive relief dated 29/09/03, filed by the Claimant (Respondent in this appeal) although they were served with processes by substituted service – Page 27 of the Record of Appeal.

From records, on the 28th of February, 2009, learned counsel for the Claimant, V.I.P. Nwana Esq., informed court that the Defendant had still not complied with the order of court under order 17 Rule 1 of the Court Rules.

As gleaned from page 30 of the Record of Appeal, the matter was reassigned to Okunnu J. on the 4th of March, 2009 by Honourable Justice L.G.A. Marsh – the Administrative Judge.

On the 27th day of May, 2009, the proceedings of court in suit No.ID/1482/2003, subject matter of this present appeal went thus:

“Parties: Claimant present, Defendant present.