West African Portland Cement Plc V. Mr. David Kehinde Oduntan & Anor (2007)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the ruling of O. Osidipe, J. sitting at the High Court of Justice, Abeokuta on 21st January, 2003. At the hearing of this appeal, only the appellant was represented by counsel. The Respondents and their counsel were absent. However since briefs were filed and exchanged, this appeal was heard in accordance with Order 6 Rule 9 (5) of the Court of Appeal Rules, 2002. The Appellant, who was defendant/applicant in the court below filed a motion on notice dated 1st October, 2001 praying the court for three reliefs as follows:-

1. An order of court that the plaintiffs/respondents are estopped by their conduct from taking any further steps in the prosecution of this case.

2. An order of court that this case has been settled out of court by payment of the sum of N6m to plaintiffs/respondents by the defendant/applicant since December, 1998.

3. An order closing this case having been fully settled by the parties.

The grounds which the application was anchored were:

(a) That the equitable doctrine of estoppel preclude the plaintiffs/respondents from re-opening and/or continuing with the trial of the case

(b) That the plaintiffs were paid the sum of N6m by the defendant in December, 1998 in full and final settlement of this case including ancillary case in suit NO.HCS/14/98.

In order to fully understand the circumstance leading to the above prayers vis-a-vis the ruling of the learned trial judge being appealed against, let me state the facts of the case leading to this application.

On 2nd February, 1994, the respondents who were plaintiffs in the court below took out a writ of summons against the appellant who was defendant. Pleadings were filed and exchanged. And in a further amended statement of claim dated 14th April 1997, the respondents claimed as follows:

“Whereof the plaintiffs claim the sum of N118,681,425.00 (one hundred and eighteen million, six hundred and eighty-one thousand, four hundred and twenty five naira) as special and general damages for the injurious activities of the Defendant company causing damages to the Plaintiffs whereof he is losing money from his poultry, fish and crops farm in the estate and the building structures are under threat of collapse”.

The appellant had filed her statement of defence denying liability. Hearing commenced and the plaintiffs called witnesses and closed their case. The defendant called some witnesses and had difficulties in bringing some of her witnesses to court. While the matter was still pending, the parties entered into negotiation for an out of court settlement.

In the process, Hon. Justice O. Sodipo was transferred and the case went to two other judges who could not hear the case before they retired. The case was transferred back to the Learned Justice Sodipo to continue from where he had stopped. When the case was called on 26/11/2002, the court’s attention was drawn to this application filed by the defendant since 12th October, 2001 which had not been heard. The learned trial judge then ordered that the motion be moved. Since it is the ruling on the application that is being appealed against; I wish to also set out the facts on the affidavit in support of the application. Although the affidavit is a bit lengthy, it is necessary to set it out as it is.

AFFIDAVIT IN SUPPORT OF MOTION