AJANI V. GIWA

• Pages: 874-884

874

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NIGERIAN SUPREME COURT CASES

[1986] 2 N.S.C.C.

AJANI V. GIWA

5

TAIWO AJANI

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APPELLANT

V

SITU GIWA

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RESPONDENT

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10

SUIT NO. SC 7

2

/

1

985

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

UWAIS,

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J.S.C.

KARI BI-WHYTE,

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J.S.C.

KAWU,

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J.S.C.

OPUTA,

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J.S.C.

20th June, 1986

Appeals (Civil) - Leave to appeal, Need for - Defendant declining at close of

plaintiffs case to present his own case due to absence of his Counsel then

later after address of plaintiff's Counsel and adjounzment for judgment, seeking

leave, to give evidence and call witnesses - Refusal of his application -

Ground of Appeal against subsequent judgment for plaintiff complaining that

trial Judge failed to exercise his discretion to grant defendant's application

thereby coming to wrong decision occasioning miscarriage of justice - Absence

of leave to appeal against interlocutory order of refusal and leave to appeal

on mixed law and fact - Ground of appeal incompetent and appeal wrongly

allowed by Court Of Appeal.

ISSUE:

1. Whether an appeal based on mixed law and fact can be heard without leave

having been obtained by the appellant.

FACTS:

The Appellant instituted an action against the Respondent in 1970, claiming

inter

alia

a declaration of entitlement to a particular Certificate of Occupancy granted

under the Land Use Decree, damages for trespass and injunction to restrain fur-

ther acts of trespass, in his Amended Statement of Claim. The Claim was par-

tially heard by four different Judges, before it came before the trial Judge in 1977.

The Counsel for the defendant did not appear, and the hearing started without him.

The defendant was present thoughout and the defence Counsel appeared on the

third day and cross-examined the Plaintiff and his first witness. They adjourned

by consent, to continue on specified date. The Plaintiff's case closed in Decem-

ber 1978, and the defence Counsel was again absent. Case was adjourned and

on the return date, instead of opening the defence case, the Counsel applied to

recall a witness. On the adjourned date the Counsel was absent, but brought a

motion for the defendant to give evidence and call witnesses, while the Plaintiff's

Counsel proceeded to address the Court. When the motion was heard, the

defence Counsel was again absent and his brief was held by another Counsel.

The application was dismissed. Judgment was given for the Plaintiff, the defend-

ant appealed to the Court of Appeal, and the plaintiff entered a preliminary objec-

tion. The first two grounds of appeal were dismissed, but the Court of Appeal held

that the trial Judge was unfair to the defendant for refusing to grant his application

to give evidence and call witnesses.

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