Abayomi Babatunde V. Pan Atlantic Shipping And Transport Agencies Ltd & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

This appeal has a chequered history. It is one of the old land cases still lingering in the courts. The plaintiff in 1988 took a writ of summons from the Lagos State High Court. Five reliefs were indorsed in the writ. On filing its statement of claim which was later amended some of the reliefs were abandoned and the plaintiff made the following claims against the appellant and the 2nd respondents that: –

(a) The defendants do deliver up the sub-lease registered as 92/92/1823 at the Lagos Lands Registry for cancellation by this Honourable Court.

(b) This Honourable Court do expunge the aforesaid sub-lease from the records and entries of the land registry. ”

In their amended statement of defence, the defendants denied the claim and indorsed a counter-claim against the plaintiff. The counterclaim reads as follows:

“AND the defendant counter-claims:

“(i) A declaration that the defendant is the person entitled to the statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being along Oshodi-Tin-Can Island Express Road. Ibafon, Olodi Apapa, Awori-Ajeromi District, Badagry Division of Lagos State covered by plan No. 1387 “A & B” signed by A. O. Adebogun, Esq., licensed surveyor attached to the deed of lease dated the 20th day of March, 1978 and registered as No. 13 at page 13 in volume 1695 of the Lands Registry in the office at Lagos.

(ii) An order setting aside the deed of lease dated the 28th day of March, 1978 and registered as No. 68 at page 68 in volume 1707 of the register of deeds kept in the Lands Registry at Lagos.

(iii) Perpetual injunction restraining the plaintiff, its servants and/or agents from interfering with the possession and/or use of the land in dispute by the defendant, his servants and/or agent.”

A reply and defence to the counter-claim was filed by the plaintiff. It was also subsequently amended.

The background facts of the case according to plaintiff’s version are that the 1st respondent herein as plaintiff at the Lagos State High Court, sued the appellant and 2nd respondent as 1st and 2nd defendants over a land dispute, on February, 2nd, 1987. Pleadings were closed by the parties but before the commencement of trial, the plaintiff filed an application for summary judgment. The application was moved on the 27th of February, 1989 and dismissed on the same day on the grounds that triable issues were disclosed in the pleadings and the suit was adjourned for trial before Agora, J. Trial opened in the case on 6th of February, 1990 when the 1st plaintiff’s witness testified and tendered some exhibits and the matter was adjourned for his cross-examination. Agoro, J. was then elevated to the Court of Appeal as a result of which proceedings had to recommence de novo before Desalu, J. Before Desalu, J. trial again opened on the 6th day of June, 1991 and the plaintiff’s 1st witness again testified extensively tendering some exhibits. The said witness was cross-examined after which the 2nd defendant amended its statement of defence and the suit adjourned for further hearing. Unfortunately, Desalu, J. took ill from which he never recovered and the case was then re-assigned to Adeyinka, J. Before Adeyinka, J. the plaintiff on the 11th day of April, 1994 moved an application for accelerated hearing dated the 18th of January, 1994, pursuant to which the court set down the suit for hearing on the 9th of June, 1994. Eleven days after the suit was set down for trial i.e. on the 22nd of April, 1994, the plaintiff filed a notice of discontinuance of the suit against all the parties including the 3rd defendant who had been joined by an order of court and had delivered its defence albeit out of time.

In a short ruling delivered on the 2nd day of September, 1994, Adeyinka, J. dismissed the suit against the 1st and 2nd defendants and struck it out against the 3rd defendant on the basis that it had not filed its pleadings. The plaintiff appealed against this ruling to the Court of Appeal. The 3rd defendant also filed a cross-appeal contending that the case against it ought to have been dismissed and not struck out.

The Court of Appeal in its judgment varied the order made by the trial court from one of dismissal of the suit to one of striking it out.

It is against this decision that the 2nd defendant/respondent, but now appellant before this court, appealed on 2 grounds of appeal in his notice of appeal. (Pages 279-281 of the printed record of appeal).