AN Ikeja High Court will on November 5 hear a motion by a family seeking to stay proceedings in a property dispute it initiated against Union Bank Plc and two others, 28 years ago.
Justice Doris Okuwobi fixed the date after dismissing the family’s application to amend pleadings and re-open their case, 15 years after both parties had closed their cases.
The first to fourth plaintiffs in the suit are: Miss Biodun Ajibola, Dr Rukayat Ajibola, Hakeem Ajibola and Kabiru Ajibola, suing on behalf of themselves and other members of the late Alhaji Kazeem Ajibola’s family.
The first to third defendants are: Union Bank Plc, Mr. J. T Bamkefa and Mr. Gerald O. Duru.
In the suit filed by the late Alhaji Ajibola on September 27, 1990, the plaintiffs are challenging Union Bank’s authority to sell a property located at No 26, Sopeju Street, Shogunle, Ikeja, to the third defendants.
The late Alhaji Ajibola used the property as security for a loan from the bank on June 20, 1973.
Following his default in repayment and based on an agreement between late Ajibola and Union Bank, the property was sold to Duru, for the bank to recover its money.
But dissatisfied with the sale, the late Ajibola instituted the suit at the Ikeja High Court and after his death in the course of litigation, the plaintiffs inherited the suit.
The suit was dismissed on March 20, 1996, but after a counsel ‘revived it in error, it was dismissed again on September 17, 2004.
The plaintiffs appealed following which the Court of Appeal, in a November 2016 ruling, ordered that the case be re-heard on its merits.
On July 20, 2017, the plaintiffs filed an application seeking an order granting them leave to re-open their case by calling Chief Sunday Omoteosho as an additional witness and another granting them leave to file Chief Omoteosho’s statement on oath.
They also sought leave to amend their writ of summons and statement of claim and other accompanying processes as well as an order of the court compelling all parties to comply with Order 3 Rule 2 of the High Court of Lagos State Civil Procedure Rules 2012 by filling all accompanying documents.
Their application was supported by a 16-paragraph affidavit deposed to by Mr Hakeem Ajibola.
But the respondents opposed the application. Counsel to first and second respondents, Mr Patrick Odozi deposed to a 20-paragraphs counter-affidavit challenging the applicants’ motion.
Odozi argued that the amendment sought to be effected by the plaintiffs “is strange to law practice.”
Odozi said: “It is clear as a fact that the plaintiffs only want to frustrate the expeditious prosecution of a case instituted since September 27, 1990.
“It has been the attitude of Hakeem Ajibola and his supporting counsel at all the stages of this proceeding to truncate and frustrate all our efforts to bring this case to a logical conclusion.
‘The respondents will be greatly prejudiced by the grant of this strange application as the bank has effectively recovered the security in the mortgage since 1990, and has effectively passed titled to the third respondent (Duru).”
According to Odozi, the plaintiffs’ application was “actuated by bad faith and deceit as prayers being sought are not for amendment per se but to re-open a case closed since March 4, 2004 over 15 years ago, to call additional witness not considered since inception of the suit.
He contended that trial in suit was concluded on December 17, 2003 and the court had ordered filing of written addresses and adjourned for adoption to March 4, 2004 before the matter went on appeal, which was not disposed of until September 17, 2014.
He noted that the Court of Appeal in its final verdict on the appeal directed that the matter be remitted to the lower court for conclusion on its merit.
Odozi added that the plaintiffs, who had the benefit of reading the addresses of the respondents, were out to re-open their case to introduce facts which were never in the original case filed by them. According to him, “the situation at hand, which the plaintiffs are trying to play on are not in tandem with what Order 24 Rules 2 and 3 of the court is about.
“Where any substantial amendment is required it ought to have taken place either during Case Management or during trial and not after close of case of parties.”
He prayed the court to dismiss the application.
Delivering her ruling, the trial judge, Justice Doris Okuwobi upheld Odozi’s prayer.
The judge dismissed the plaintiff’s application and also awarded cost of N100, 000 against them.
Justice Okuwobi held that after considering applications filed by the plaintiffs and the counter-affidavit of the respondents the only issue which arose for determination was whether or not the plaintiffs were entitled to the prayers sought by them in a matter in which evidence closed on December 17, 2003.
The court also held that Order 24 of the court which regulates amendment of originating process and pleadings permit amendment at any time before the close of Case Management Conference and not more than twice during trial before judgment, “with this the practical implication of this provision of Order 24 Rule 1 , is that no amendment will be entertained after conclusion of trial and close of address even before judgment , as it used to be under the 1994 Rules of the court.”
Justice Okuwobi held: “It goes without equivocation that the plaintiffs cannot now apply under the 2012 Rules to amend pleading in a case that is closed. It is indeed ridiculous for the plaintiffs to want an amendment 15 years after close of the case of parties.
“The prayer to re-open the plaintiffs’ case by calling an additional witness is indeed strange going by the fact and peculiar circumstances of the case
“To do the wish of the plaintiffs is to direct a path of chaos in the judicial process more in this suit which was instituted in 1990, 28 years ago.
“On the whole, I find all the prayers sought in this application a little too late in the day, the case of parties having closed in 15 years. It is very important to make an application for an amendment as soon as the defect in proceedings in known or detected because if the application is unreasonably delayed, it may be refused.
“I therefore find the application fails and it is accordingly hereby dismissed. I hereby order the plaintiffs to file plaintiffs final address. Cost of N100,000 is awarded in favour of first and second respondents “, the court ruled.
Meanwhile, the plaintiffs have again approached the Court of Appeal to upturn the ruling. They have also filed an application for stay of proceedings at the lower court.
