CHIEF N. P. UGBOAJA V SODOLAMU AKITOYE-SOWEMIMO & 3 ORS
(2008) LCN/3460(SC)
In the Supreme Court of Nigeria
Friday, July 11, 2008
Case Number: SC. 324/2001
JUSTICES:
WALTER SAMUEL NKANU ONNOGHEN, (Lead Judgment) JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI JUSTICE, SUPREME COURT
IBRAHIM TANKO MUHAMMAD JUSTICE, SUPREME COURT
JAMES OGENYI OGEBE JUSTICE, SUPREME COURT
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT
BETWEEN
APPELLANTS
1. CHIEF N. P. UGBOAJA
AND
RESPONDENTS
1. SODOLAMU AKITOYE-SOWEMIMO
2. MOTOLA SOWEMIMO
3. EFUNIKE ANIMASHAWUN
4. JAIYEOLA SOWEMIMO [For themselves and on behalf of all the beneficiaries of the Estate of Chief Sobo Sowemimo (Deceased)
S. N ONNOGHEN, JSC
(Delivered by Judgment of the Court ):
This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal NO. CA/L/136/98 delivered on the 40th day of April, 2001 in which the court struck out the appeal of the appellant against the judgment of the High Court of Lagos State in Suit No. ID/7307/90 delivered on the 21st day of November, 1996.
By a writ of summons filed on the 20th day of November, 1990, the original respondent claimed against the appellant as follows:-
“(i) Declaration that he is the registered proprietor of the parcel of land situate at 41, Ogundana Street, Off Allen Avenue, Ikeja, Lagos State or in the alternative is entitled to certificate of occupancy of the said parcel of land by virtue of a Deed of Conveyance registered as No. 48 in Volume 48 at page 1482 in 1975 in the Lagos Lands Registry.
(ii) N50,000.00 (fifty thousand naira) as damages for trespass on the said land.
(iii) Perpetual injunction to restrain the defendant from further trespass on the said land”.
It is the case of the respondent that he acquired a large piece of land including the land in dispute from one A. T. Bakare whose title to the land was confirmed by the Supreme Court in Suit No. SC/121/74 between: A.T. Bakare v. Owodina & Ors and a Deed of Declaration registered in favour of the said respondent’s predecessor in title as NO. 50 at page 50 in Volume 1072 at the Lagos State Lands Registry, Lagos, which said title was again confirmed by the Supreme Court in another case, to wit, Suit NO. SC/528/98 between Olowolagba & Ors v. R. A Bakare (1998) 3NWLR (Pt. 643). The respondent stated that he had leased portions of the large parcel of land so acquired to third parties who developed their respective portions without let or hindrance; that the piece or parcel of land now in dispute between the parties forms part and parcel of the large piece or parcel of land acquired from the said A. T Bakare.
On the other hand, it is the case of the appellant as stated in his pleading that the land in dispute belongs to him tracing his title thereto to one S. A Bamsille as evidenced in a Deed of Conveyance dated the 16th day of October, 1975 and registered as NO. 10 at page 10 in Volume 1528 in the Lagos State Lands Registry, Lagos, and the Deed of Assignment dated 7th June, 1983 and registered as NO.74 at page 74 in Volume 1866 in the Lagos State Lands Registry, Lagos.
Both parties filed their pleadings pleading the above facts. The respondent, as plaintiff, testified in support of his case and called two witnesses. On the 27th day of September, 1996, the plaintiff closed his case and the matter was adjourned to the 9th day of October, 1996 for defence to open.
When the case came up for defence on the said date, learned counsel for the defendant/appellant, Chief O. O Ajala wrote for an adjournment on the ground that:-
(1) he had a matter before the Supreme Court in Abuja and,
(2) he had filed an application for further direction on the 27th day of September, 1996 which application was fixed for hearing on 21/10/1997.
It should be noted that the application for further direction was filed the same day the plaintiff closed his case and was not fixed for hearing on the date the defence was to open but about two weeks thereafter. The plaintiffs counsel was opposed to the application for adjournment and requested the court to close the case of the defendant/appellant as a result of which the trial judge ruled as follows:-
“I am of the view that the defendant has been given an opportunity to be heard and he is not interested (sic) in the utilization of that opportunity. In the circumstances, the case of the defendants shall be closed and it is hereby closed for his lack of interest in prosecuting his defence. Accordingly I so rule, case adjourned till 16th October, 1996 for address”.
The learned counsel for the plaintiff however addressed the court on the 24th day of October, 1996 in the presence of O. O Ojo Esq, learned counsel for the defendant/appellant at the conclusion of which address Mr. Ojo made no reply neither did he make any application to that court for anything. The matter was then adjourned to the 8th day of November, 1996 for judgment, which judgment was eventually delivered on the 21st day of November, 1996. Meanwhile, the defendant/appellant never appealed against the ruling of the court made on the 9th day of October, 1996 closing the case for the defence.
On the 21st day of November, 1996, the trial court delivered its judgment in favour of the plaintiff/respondent and granted all the reliefs claimed.
The appellant was dissatisfied with the judgment and appealed to the Court of Appeal, holden at Lagos on a notice of appeal containing the following ground and particulars:-
“GROUNDS OF APPEAL
The learned trial judge misdirected himself, by closing the case of the defendant, and giving judgment for the plaintiff, without hearing the other side, who has filed a further Statement of Defence, and counter claim on the suit.
PARTICULARS
- There were abundant documents before the trial court, that the defendant has filed a Motion on Notice for further direction, and a letter for an adjournment which the learned trial judge rejected, when my solicitor, was before the Supreme Court, Abuja for an urgent application.
- That the order to (sic) the Honourable Court made on the 9th day of October, 1996, refusing the letter for an adjournment, and/or failing to give the notice of further direction dated 27/9/96, an accelerated hearing, were made NOT in the interest of justice.”
It should also be noted that out of the above ground of appeal, the learned counsel for the appellant formulated two issues for determination by the lower court! The issues are as follows:
(i) Whether the appellant was given a fair hearing in the circumstances of this case by the learned trial judge.
(ii) Whether the learned trial judge was right in giving judgment in favour of the respondent herein”.
In considering the appeal, the lower court held as follows:-
“It is easy to deduce from the above ground of appeal that the complaint of the appellant concerns that refusal of the lower court to grant the adjournment which the appellant’s counsel has sought from the lower court on 9/10/96. The Notice of Appeal however, was directed against the judgment of the lower court delivered on 21/11/96. Nothing in the grounds of appeal can be construed as directed against the contents of the judgment of the lo
