Andrew Osumuo V. Samuel Udeaja (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED L. TSAMIYA. J.C.A.
This is an appeal against the judgment of Anambra State High Court (herein referred to as the trial court) sitting in the Nnewi Judicial Division. The judgment appealed against was delivered on 20/1/2004 in suit No. HN/93/2001. The Plaintiff claimed against the defendant as follows:
(a) A declaration that:
(i) The plaintiff is entitled to possession and use of that certain piece or parcel of land known as and called “MBANA” land otherwise known as No.17 Onitsha – Owerri (or Oguta) Road, Nnewi within the jurisdiction of this Honourable Court.
(ii) The demand by the Defendant from the Plaintiff of the sum of N600,000.00 (Six hundred thousand Naira) additional consideration on the said Mbana land is unconscionable and wrong in law, and
(iii) The plaintiff is entitled to a statutory right of Occupancy in respect of the said Mbana land.
(b) Relief from any forfeiture of the said Mbana land on ground of non-payment of annual rent reserved on the said Mbana land by the Plaintiff to the Defendant, or for any other cause or reason.
(c) The sum of N500,000.00 (Five hundred thousand Naira) general damages for the various acts of trespass committed by the Defendant on the said Mbana land without the consent of the Plaintiff.
The respondent on the other hand denied all the appellant’s claim and counter-claimed against the appellant as follows:
(a) A declaration that the leasehold interest created by the Deeds of Lease had determined/ceased to be operative.
(b) A declaration that the re-entry into the demised land by the Defendant was proper.
(c) An Order of forfeiture against the plaintiff over the said demised land.
(d) A declaration that the plaintiff has grossly violated the terms and conditions of the said lease.
(e) An order of Court compelling the Plaintiff to pay up the arrears of rent at the current (prevailing) value of pounds sterling to the naira.
(f) One Million Naira General Damages for breach of covenants and trespass by the Plaintiff.
The Plaintiff was absent throughout the proceedings. The case was finally heard on 20/1/2004. The learned trial judge gave his judgment in favour of the Defendant when the plaintiff’s case was struck out for want of prosecution, while the judgment for the counter-claim was entered in favour of the Defendant in the following terms:
- That the leasehold interest created by the Deeds of Lease has determined and ceased to be operative due to Plaintiffs default in payment of his yearly rent.
- That the Defendant/Counter-Claimant’s re-entry into the demised premises was proper and in order.
- That an order of forfeiture over the said demised premises is hereby made against the Plaintiff.
- That the Plaintiff shall pay to the Defendant/Counter-Claimant the sum of N50,000.00 (Fifty thousand Naira) as general damages.
5, That the Plaintiff shall pay to the Defendant/Counter-Claimant the sum of N5,000.00 (five thousand Naira) as costs.
The plaintiff (herein referred to as the Appellant) being dissatisfied with the judgment of the trial Court has appealed to this Court on 8/12/2005, having obtained from this court on 28/11/2005, two weeks’ extension of time within which to appeal. The appeal is on 3 grounds of appeal, and from the grounds of appeal 3 issues were formulated for determination. The issues read thus:
- Whether the court below was competent to have entered judgment in favour of the Defendant/Respondent in his counter-claim without notice of the hearing date given to the plaintiff/Appellant – ground 1.
- Whether the court below was correct when it struck out the maim claim and set down the counter-claim for hearing without proof of the service of the hearing notice before the court – Ground 2.
- Was there any competent counter-claim before the trial court requiring proof and judgment – Ground 3.
The Defendant (herein referred to as the Respondent) on his side formulated 3 issues for determination as follows:
- Whether in view of the evident fact that the appellant never applied to the High Court to set aside its default judgment delivered on 24/1/2004 before appealing to the Court of appeal, is this appeal, is this appeal competent and properly pending before this Honourable Court? (sic)
- Since the issue of validity of the Counter-Claim was neither raised nor canvassed before the lower Court, raising same for the first time before this Hon. court without leave proper?
- Has the appellant made out a good case for the judgment of the Lower Court to be set aside?
From the briefs of both parties in this appeal and the issues formulated therein, the crucial issue for determination is issue Nos.1 and 2 of the appellant and issue No. (b) of the respondent. Both parties issues in my view are identical in substance, though differently worded. The crux of the matter in the appeal is whether the whole proceedings is valid. I shall treat the 1st and 2nd issues of the appellant together in view of their identical nature i.e competency of the trial court to do what it does in the absence of service of hearing notice. I shall thereafter if necessary deal with the respondent’s issue No. b.
First, I shall start the discourse of this appeal by identifying what was the case put up by the plaintiff/appellant and the defence raised by the defendant/respondent in their respective pleadings. From the reading of the statement of claim, the case of the Appellant is that;
By an indenture of lease dated the 3rd day of April, 1953, and registered as No.17 at page 17 in volume 31 of the Land Registry in the office at Enugu, now kept at Awka, Mr. Igboatu Udeji of Umuisiedo village, Umudim Nnewi in Nnewi North Local government Area of Anambra State of Nigeria, sold and conveyed to Dennis Ekazie Osumuo (now deceased) a piece of land called “Mbana” which is situate at Umuisiedo village, Umudim, Nnewi for a term of 99 years at the reserved annual rent of N4.00. The said “Mbana”, land is shown and delineated on survey plan No. EC/6/53 dated 14/3/1953.
Following the said grant, Dennis Ekezie Osumuo went into physical possession of the said land in dispute and erected thereon a line of shops at his own expense for commercial enterprises. Since the said grant, the said Samuel Udeaja (the defendant herein) Proves a thorn in the flesh of Dennis Ekezie Osumuo (deceased) in his enjoyment of the land in dispute. To stem the defendant’s worries and pressures, late Dennis Ekezie Osumuo on 30/1/1968 paid the sum of $20,00 (Twenty pounds) now N40.00 to the defendant without prejudice to the defendant’s rights under the said lease. In 1973, late Dennis Ekezie Osumuo paid the sum of N20.00 rent on the land in dispute for the years 1973 to 1977 (both years inclusive) at the rate of N4.00 per annum. On 6/2/1986 a further rent of N64.00 was paid again for 16 years. The defendant, instead of reckoning the 16 years, that is, from 1978 to 1993 recorded 1971 to 1986 on the receipt issued for the said period of 16 years.
Thereafter, the defendant has refused further rent offered to him by the plaintiff and has continuously demanded from the plaintiff the payment to him of a lump of N600,000.00 (six hundred thousand Naira) as additional consideration on the land in dispute, and has committed numerous acts of trespass in the land since then.
Customarily the plaintiff is the eldest son of the successor to the aforesaid deceased person. Consequently the defendant on 10/5/2001 instituted an action against the plaintiff as successor to the said deceased person, in suit No.MN/59/2001 at the Magistrate Court Nnewi, claiming inter alia, possession of the land in dispute.
On the defendant side, he denied the plaintiffs averments. He specifically stated in his statement of defence, that there was no any sale or conveyance of the land in dispute to late Dennis Ekezie Osumuo. Rather the defendant’s late father, one Ajaobi Udeaji was the personal owner of the land in question, and he died early when the defendant was very young. That the defendant having left with no one to pay his school fees or take care of him this compelled him to resort to go into rubber tapping venture in Benin. The defendant was away a long time in Benin and his Uncle late Igboatu Udeaji purported to grant a lease of the said land to late Dennis Ekezie Osumuo with the knowledge, participation or consent of the defendant.
On returning from Benin, the defendant learnt of the action of his Uncle in leasing the land to late Dennis Ekezie Osumuo and he promptly challenged the late Dennis Ekezie Osumuo. After a protracted dispute a compromise was reached when the late Dennis Ekezie Osumuo accepted that the defendant was the actual owner of the piece of land. Thereafter it was then agreed that the terms and conditions of the 1953 Lease Agreement would continue to be inforce and that the defendant was to be paid twenty pounds. These were done, even though as the late Dennis Ekezie Osumuo was the person who prepared the agreement, same did not reflect the exact agreed terms. That the said twenty pounds, as a result of the good nature of the said late Delmis Ekezie Osumuo but in direct acknowledgement of the defendants exclusive ownership rights over the land in dispute, and the defendant then withdrew his opposition to the 1953 lease as the leassee, late Dennis Ekezie Osumuo wanted to put up a petrol Filling station thereto. That the present line of shops were built after Civil war by the late Dennis Ekezie Osumuo.
The defendant also stated that the late D.E. Osumuo breached the terms of lease while alive as he was very irregular in payments before his death in the early 1970s.
That after his death, the plaintiff as the eldest son stepped into his shoes and also paid rents once in arrears and till date on rent payments by the plaintiff as there was none. Rather it was the defendant who kept on pestering the plaintiff to pay the rents as same had fallen in arrears for over 20 years, showing clearly that the plaintiff had, for all practical purposes, abandoned the lease. That the defendant was startled at the plaintiffs conduct who began to widely advertise the property for sale, and the defendant informed all honest enquirers that the property was not for sale, and that the plaintiff had no right to sell same. That the 1953 lease Deed made abundant provisions for re-entry by the defendant in the event of non-payment of rent. The defendant’s counsel on instruction wrote to plaintiff over arrears of rent, his acts of advertising the property for sale and the defendant’s intention to re-enter the demised land and re-take same. And the plaintiff did not re-act. Thereupon the defendant issued the requisite statutory Notice and commenced possession proceedings in the Magistrate Court, Nnewi which the plaintiff did not contest and the claim was refused on the ground of non-proof of a material fact. This provoked the defendant and then defendant appealed to the High Court.
The plaintiff in 1998 offered orally to pay for over 20 years arrears of rent which the defendant refused and re-took possession of the property. Then the plaintiff offered to purchase the entire property free hold from the defendant which the defendant refused, and made a counter – claim against the plaintiff.
Having stated the brief facts of each party’s case I shall now proceed to determine the appeal on merits.
ISSUE 1.
Under this issue the appellant’s counsel contended that the trial court was wrong to have proceeded to give judgment in favour of the respondent on the counter-claim without a hearing notice with a date of hearing the case served on the respondent. He submitted that the trial court set down the counter claim for hearing on 19/11/2003 but regrettably gave no further notice to the appellant contrary to Order 24 rule 14 of Anambra State High Court (Civil Procedure) Rules, reliance was made on Auto. Import v. Adebayo (2 no 2) 12 S.C.N.J. 124 at 141 – 149, and Obe v. Gom (2006) FWLR (Pt. 303) 285 at 301 – 302 paras H-A.
In reply, the respondent’s counsel submitted that this appeal is improper on ground that by virtue of Order 24 rule 15 of Anambra State High Court (Civil Procedure) Rules of 1988, the appellant can apply to the trial Court to set its judgment aside but he did not do that.
Also the respondent’s counsel submitted that it is an inflexible rule of practice that the appellant should infact exhibit more zeal and anxiety in prosecuting the case which it had filed and at the same time had a duty to find out the position of his suit but, in this case the appellant never bordered to find out the position of his suit in the registry of the trial court. He further stated that no litigant should be allowed to take a court to ransom.
ISSUE NO.2
The appellant’s counsel contended that, the trial court failed to prove the actual service of the hearing notice on the appellant after the respondent’s counsel orally told the trial court that “Fresh hearing notice was dispatched to the Deputy Sherriff, High Court, Aba for service.” Rather, the trial Court immediately proceeded to strike out the main claim and fixed a date for hearing of the counterclaim.
The learned counsel for the respondent further submitted at the time the main claim was struck out and the date for hearing the counter-claim was fixed, the appellant was not aware of, as he was not served with a hearing to that effect.
That the proceedings of 29/7/2003 and the subsequent proceedings were all done behind the appellant and this constituted a breach of his fundamental human right to fair hearing as provided in section 36 of the 1999 Constitution of Nigeria. He cited and relied on the case of Ogundoyin v. Adeyemi (2001) 7 S.C.N.J. 181 at 198 Per Onu J.S.C.
In response, the respondent contended that the appellant’s appeal is incompetent having not applied to the trial court to set the decision aside before appealing.
ISSUE NO.3
Under this issue, the appellant’s counsel contended that the counter-claim before the trial court was incompetent because the respondent did not plead facts in support of it. The case of Ishola v. U.B.N. LTD. (2005) 6 NWLR (Pt.922) 422.
In response, the respondent’s counsel submitted that to allow the appellant to raise before this court the issue of validity or propriety of the counter-claim for the first time would deprive the respondent’s human rights to fair hearing guaranteed by the Constitution 1999. That it is not correct to say that no part of the process contained facts capable of sustaining the counter-claim.
The gravamen of this appeal as I stated earlier in this judgment is the question of non -service of hearing notice on the appellant who was the plaintiff in the main suit and defendant in the counter-claim. Let us examine what transpired in the trial court on 20/11/2002, 16/6/2003, 29/7/2003, 19/11/2003, 4/12/2003 and finally 14/1/2004 when the trial court proceeded to hear the appellant’s case against the respondent and vice-versa. The proceedings are not too long, therefore I shall reproduce them verbatim:
(1) Plaintiff – is absent.
Defendant – is absent.
A. Obi – Okoye – appears for the defendant.
No. representation for the plaintiff.
Court: The Asst. Chief Registrar is hereby directed to Issue fresh hearing notice to the plaintiff and his counsel. This suit is hereby adjourned to 22/1/2003 for hearing
(sgd) J.C. Nwadi
Judge.
20/11/2002
(2) RESUMED ON THE 16TH DAY OF JUNE 2003
Plaintiff – is absent
Defendant – is present.
P.C. Ugwuanyi, Esq of counsel appears for the Defendant.
Mr. Ugwuanyi says that the parties have exchanged their pleadings and suit ready for hearing. Counsel asks court to strike out this suit for want of prosecution, and thereafter set down the counterclaim for hearing,
COURT: The Ass Chief Registrar is hereby Directed to issue fresh Hearing Notice on counsel for the plaintiff Dr. Nathy Ikeotuonye at 12 Brass Street Aba. This suit is hereby adjourned to 29/7/2002 for hearing.
sgd.)
J.C. NWADI
Judge
16/6/2003.
RESUMED ON THE 29TH DAY OF JULY, 2003.
SUIT NO. HN/93/2001
(3) Plaintiff – is absent.
Defendant – is present.
B.S. Nwankwo appears with Chinyere Okoye (Mrs) For the defendant.
Counsel informs court that fresh hearing notice was dispatched to the Deputy sheriff, High Court, Aba for service.
Court – On 20/6/01 plaintiff was absent in court. On 20th November 2002 the plaintiff and counsel were absent in Court. On 16/6/03 both plaintiff and his counsel were equally absent in court. It appears to the honourable Court that both plaintiff and his Counsel have lost interest in the matter.
The defendant has always appeared in court.
The Honourable Court shall not continue to have this matter on its cause list until the Plaintiff is prepared to prosecute his case.
This suit is hereby struck out for want of Prosecution.
The counter-claim is hereby fixed for 19/11/2003 for hearing.
(sgd)
J.C. Nwadi
Judge.
29/7/2003.
RESUMED ON THE 19TH DAY OF NOVEMBER, 2003
SUIT No. HN/93/2003
Plaintiff – is absent.
Defendant – is present.
B.S. Nwankwo Esq. appears for the defendant.
Counter-claim.
This suit was on 29/7/03 specifically adjourned to Day for hearing of the counter-claim.
The Counter- claimant is now sworn on oath and opens his case.
Counter-claimant:
Court: Counsel asks for a date next week. Suit is adjourned 24th November, 2003 and 4th day of December, 2003 for continuation of hearing and address.
(sgd)
J.C. Nwadi
Judge
19/11/2003.
RESUMED ON THE 4TH DAY OF DECEMBER, 2003
SUIT NO. HN/93/2001
Plaintiff – is absent.
Defendant – is present.
B.S. Nwankwo – appears for the deff/counter-claimant.
COUNTER-CLAIMANT continues his evidence.
SAMUEL UDEAJA:
Court- Counsel inform court that this is the case for the
Counter-claim.
Counsel now addresses Court.
Counsel:
Court – This suit is hereby adjourned to the 14/11/2004
for judgment.
(sgd.)
J.C. Nwadi
Judge
4/12/03.
Judgment was later delivered on 20/1/2004 as the Court did not sit on 4/12/2003. The judgment delivered by the learned trial judge was in respect of counter-claim, which judgment was entered in favour of the respondent.
From the printed record of this appeal it shows that on 20/11/2002 and 16/6/2003 the learned trial judge adjourned the matter for service of the hearing notice be effected on the plaintiff/appellant.
On the resumed day of 29/7/2003 the counsel for the defendant/respondent informs the trial court that fresh hearing notice was dispatched to the Deputy Sheriff, High Court, Aba for service. Instead of the learned trial judge to satisfy himself that there had been proof of service of the hearing notice and other Court’s Process on the plaintiff/appellant as was ordered by him on 20/11/2002 and 16/6/2003 respectively, he did nothing of the sort. He simply proceeded to hear the defendant’s/respondent’s counsel statement that the fresh hearing notice was dispatched for service on the plaintiff/appellant, the statement which led the plaintiff/appellant’s to be struck out for lack of diligent prosecution, and adjourned the hearing of the counter-claim to 19/11/2003, without any order for service of hearing notice on the appellant.
The counter-claim proceedings started on 19/11/2003 and then adjourned to 24/11/2003 and 4/12/2003 for continuation and address. The record did not show that there was any proceedings conducted on 24/11/2003 but on 4/12/2003 when the counter-claimant closed his case and his counsel on the same day addressed the trial court immediately after which the case was adjourned to 14/1/2004 for the judgment. The learned trial judge on 20/1/2004 delivered his judgment infavour of the counter-claimant/respondent, and against the appellant behind appellant’s back as there was no order for service of hearing notice and infact there was no such service. As these events happened exper-te i.e. behind the back of the appellant as there was no hearing notice ordered to be served or infact served on the appellant. This in my view is a clear violation of the appellant’s right to fair hearing. Before a case is decided by a court of trial, each side must be given opportunity of a fair hearing.
To be given this opportunity the court must be satisfied that all the due processes of court have been served on all parties.
In the present case, there was no proof that the appellant was served with any hearing notice before the learned trial Judge proceeded to hear the case on counter-claim. This is a clear violation of the principle of audi alteram partem which has done injustice to the case of the defendant/appellant. A fortiori the judgment delivered by the learned trial judge on 20/1/2004 regarding the counter-claim is a miscarriage of justice and should be declared a nullity. See Yakubu v. Governor of Kogi State (1995) 8 NWLR (pt.414) 386, and U.B.N. Ltd v. Nwaokolo (1995) 6 NWLR (Pt.400) 127. The judgment of the Anambra State High Court delivered on 20/1/2004 in suit No. HN/93/2001 is a nullity and I so hold. Accordingly it is set aside. Having reached this decision, there is no point considering the remaining issues in this appeal. The appeal succeeds and the judgment of the trial court delivered on 20/1/2004 in suit No. HN/93/2001 is hereby set aside and the case is sent back to the High Court of Anambra State to be heard de-novo on merits by another Judge.
The appellant is awarded N20,000.00 costs against the respondent.
Other Citations: (2008)LCN/2716(CA)
