Between Restorative Justice and Damning Consequences: Cost of N2.5m Against Prof. I.O. Smith SAN in View

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On Monday, 16th of May, 2022, Honourable Justice O. O. Ogunjobi of the High Court of Lagos State, after delivering a Ruling in an application filed by the 1st Defendant in Suit No.: LD/22/2004 (Esther Olufunke Fasesan V. Mr. Adetokunboh Emmanuel & 2 Ors.) awarded cost of N2,500,000 (Two Million, Five Hundred Thousand Naira) to be paid personally by Professor I. O. Smith, SAN, counsel to the 1st Defendant.

The facts relevant to the application as stated in the Ruling are as follows:

“The original Claimant, one Mr. Samuel Babajide Fasesan commenced this suit on 7th January, 2004 by a writ of summons and statement of claim dates 30th December, 2003 seeking declaration of legal title to the land situate at Plot 1420, Block 63, Amuwo Odofin Residential Scheme, Lagos State; damages for trespass thereto by the 1st Defendant and perpetual injunction restraining the 1st Defendant from further trespass.

The suit suffered several adjournments despite the innovations in 2004 Rules of Court to aid speedy trial of action. The Claimant died in April 2009.

Upon his demise the Claimant counsel brought an application dated 14th October, 2009 for an order to substitute the name of the deceased Claimant, with the name of his wife Mrs. Esther Olufunke Fasesan.

The application was supported with a nine paragraph affidavit with certificate of death of Samuel Babajide Fasesan as Exhibit A. the Claimant counsel also filed a written address as stipulated by the High Court of Lagos State (Civil Procedure) Rules, 2004. The 1st Defendant and other Defendants did not file any counter affidavit or written address in opposition to the Claimant’s motion as required by the 2004 Rules. The application for substitution came up for hearing on 3rd November, 2009. The 1st Defendants counsel was present in court and did not oppose the application. The application was heard without any objection. The extant Claimant was substituted in the stead of the original deceased Claimant by an order of Court dated 3rd November, 2009. The suit thereafter suffered innumerable adjournments and was finally scheduled for trial in 2021. The trial commenced on 7th December, 2021. This was 18 years after commencement of the suit in 2004 and 13 years after substitution of the extant Claimant for her deceased husband in 2009. The Claimant gave her evidence on 7th December, 2021. The suit was adjourned for continuation of trial.

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The 1st Defendant/Counter Claimant has now filed a Notice of Preliminary Objection dated 20th January, 2022 praying this Court for an order setting aside the previous order of the Court made on 3rd November, 2009 substituting Esther Olufunke Fasesan, the extant Claimant in this suit for the Late Samuel Babajide Fasesan, the original Claimant; an order striking out this suit in its entirety for want of jurisdiction; an order setting aside the entire proceedings so far in this suit for want of jurisdiction; an order setting aside all orders made by the Court so far including the orders as to costs for want of jurisdiction; and costs of N300,000.00 against the extant Claimant (Esther Olufunke Fasesan) for putting the 1st Defendant/Counter Claimant to the rigours, trauma and cost of frivolous litigation without legal competence or standing…”

CTC of Ruling to be published subsequently…

Clearly, not only was Justice Ogunjobi cross with the application filed by the Learned Silk Professor, My Lord also expected more from him. Perhaps the anger of My Lord is in the fact that the suit has last eighteen years in court and it is still at trial stage. And when trial had barely commenced, the Learned Silk Professor introduced an objection challenging the jurisdiction of the court to entertain the suit not because of a new fact just getting to the knowledge of the Learned Silk Professor but on an issue which was not countered at an earlier stage in the proceedings of the suit.

In most cases, costs are awarded against parties in a suit since they are indeed the real players in any litigation. Any action carried out by a counsel in any suit is deemed as action carried out by the party which the counsel represents. The question which the Learned Silk Professor may probably be asking is why the cost was not awarded against the Defendant, afterall, he is just a counsel doing the bidding of his client. Could the judge be setting a precedent as to the kind of applications not to file in an eighteen year old suit? The reaction of the Learned Silk Professor to this “Restorative Justice/Damning” fine would be a masterstroke to watch out for.

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