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  • 2003-04-21
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Kadir vs. Yusuf

ALHAJI KAREEM KADIR

(Baale of Dugbe-Osin)

V

ALHAJI M. B. YUSUF

(For himself and on behalf of other members of Dugbe-Osin Community Development)

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA ( Read the Lead Judgment )

WALTER SAMUEL NKANU ONNOGHEN, JCA

CA/IL/41/2000

THURSDAY, 18TH APRIL, 2002

ACTION - Representative action - Authority to sue - How determined

APPEAL - Ground of appeal - Classification of by counsel as of mixed fact and law or of law or fact - Whether conclusive

APPEAL - Ground of appeal and its particulars - Need to consider same together

COURT - Applications before the court - Priority of - Discretionary power of court to determine

COURT - Discretion of court - Manner of exercise of as a question of fact

COURT - Discretionary power of court - Exercise of in respect of equitable reliefs - How done

COURT - Judgment of court - Where wrong or based on mistake Bindingness of until set aside

JUDGMENT AND ORDERS - Final judgment - Whether a judgment is - How determined 


JUDGMENT AND ORDERS - Judgment of court - Where wrong or based on mistake - Bindingness of until set aside

JUDGMENT AND ORDERS - Null judgment of court - bindingness of

JURISPRUDENCE - Substantive law - Priority of over rules of court

LOCUS STANDI - Party challenging in limine locus standi of a plaintiff Effect

PRACTICE AND PROCEDURE - Declaratory reliefs - Party seeking Duty on to lead evidence in support of

PRACTICE AND PROCEDURE - Declaratory reliefs - Whether can be granted based on  a party’s admission

PRACTICE AND PROCEDURE - Substantive law - Priority of over rules of court

Issue:

Whether the reliefs claimed by the respondent are such that could be granted without taking oral evidence as did the learned trial Judge in this case.

Facts:

At the High Court of Justice Kwara State, sitting at the Ilorin Division, the respondent as plaintiff brought an action against the appellant as defendant. In the action, the respondent claimed against the appellant for declarative reliefs and injunctive order. The respondent in accordance with the rules of the lower court filed his statement of claim, a copy of which was served on the appellant. He however did not file his statement of defence within the time specified by the rules of the court. The respondent then brought a motion on notice praying the court for an order entering final judgment for the respondent/plaintiff/applicant against the appellant for default of pleadings. The lower court heard the motion and adjourned for judgment. Meanwhile, while the court adjourned the suit for judgment, the appellant brought a motion to file his statement of defence out of time. The application notwithstanding, the court gave judgment and granted the respondent’s prayers as per the writ of summons. The appellant was dissatisfied with the judgment and appealed to the Court of Appeal.