Attorney-general Of Rivers State V Gregory Obi Ude (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is the second journey of the dispute concerning the land and property at No.2 Ekpeye (Umuoji) Street, Diobu, Port Harcourt, otherwise known as plot 1, Block 261, Wobo layout, Port Harcourt. The first journey is reported in the case of Ude v. Nwara (1993) 2 NWLR (Pt.278) 638. The dispute herein was commenced by the appellant herein as the plaintiff, the Attorney-General of Rivers State on behalf of the Rivers State Government claiming possessions, rents and mense profits against the defendants, the respondents herein, as the occupants of the property whose lease granted to the 1st defendant expired in 1971. The 1st defendant had earlier given the 2nd defendant power of attorney over the management of the property and the 2nd defendant put the 3rd to the 13th defendants as tenants occupying the building erected thereon. The respondents resisted the appellant’s claims. Pleadings were filed and the 2nd defendant therein filed a counter-claim, in which he claimed;

“(i) A declaration that the (plaintiff) 2nd defendant is entitled to have the lease of the property renewed in his name for at least 99 years with effect from January, 1972.

(ii) An order that lease be renewed in the name of the counter-claimant.” In the alternative, the counter-claimant claimed the sum of N20,000,000.00(twenty million naira) as compensation for the buildings before possession is taken by the plaintiff. The plaintiff, the appellant herein, filed a statement of defence to the counter-claim. The parties amended their pleadings. After some preliminary matters were disposed of, the matter proceeded to trial before Manuel J.

On the 27/11/1996, the plaintiff, the appellant herein, opened its case and called PW.1 who gave his evidence in chief and the learned counsel for the defendants, respondents herein, asked for adjournment to enable a senior counsel to appear in court and to cross-examine PW.1 called by the plaintiff. The matter was adjourned to 24/2/1997, 25/2/1997 and 4/3/1997 for continuation. On the 4/3/1997, the matter was adjourned to 22nd – 26th of May for hearing. When the matter resumed on the 22/5/1997, the learned counsel for the defendants started and concluded the cross-examination. Thereafter, the plaintiff closed its case. The case was adjourned to 26/5/1997 for the defence to commence. When the matter resumed on the 26/5/1997, the learned counsel for the defendants was not in court, but wrote to ask for adjournment and the matter was adjourned to 10th, 16th, and 17th of December, 1997 for defence. On the 16/12/1997 when the matter was next mentioned, the learned counsel appearing for the defendants asked for an adjournment to enable the senior counsel handling the matter to appear. The court allowed the adjournment despite the opposition of the plaintiff’s counsel.

The matter was adjourned to 17/12/1997. The defence opened its case on the 17/12/1997 and DW.1 was called. The learned counsel for the defendants during the evidence in chief of DW1, asked for adjournment to tender some document which “has not been gotten from the Supreme Court.” The application for adjournment was opposed by the learned counsel for the plaintiff. The case was adjourned to 2nd and 7th of April, 1998 for continuation of hearing. When the matter resumed on the 2nd of April 1998, the learned counsel for the defendants was not in court none of the defendants was in court including the 1st defendant who was giving evidence as DW.1 or the 2nd defendant, who made the counter-claim. The learned trial Judge adjourned the matter despite the opposition of the learned counsel for the plaintiff. When the matter next resumed on the 22/6/1998, again the learned counsel of the defendants and the defendants were absent and the learned counsel of the plaintiff reminded the court that the plaintiff had closed its case since the 22/5/1997 and after several times the matter was being called, neither the defendants nor their counsel was in court and that no explanation whatsoever was ever offered for their absence. He urged the court to close the case for the defence and the counter-claim and enter judgment on the evidence adduced.

The learned trial Judge yet again adjourned the matter to the 24/6/1998 “to give the defendants another chance and this should be the last chance xxxxx.” When the matter resumed on 24/6/1998, the defendants were absent from court and their counsel was also absent. The learned trial Judge agreed with the plaintiff’s counsel and closed the case of the defendants including the counter-claim of the 2nd defendant and adjourned the matter to the 29/6/1998 for addresses. The learned counsel for the plaintiff addressed the court on the 29/6/1998 in the absence of counsel, the defendants including the counter-claimant. The plaintiff’s counsel concluded his address on the 2/7/1998 whereupon the matter was adjourned for judgment. In the judgment delivered on the 3/8/1998, the learned trial Judge ordered the defendants and each one of them jointly and severally to give up possession forthwith of the premises situate at No.2 Ekpeye (Umuorji) Street Diobu, Port Harcourt, otherwise known as plot 1, Block 261, Wobo Layout, Port Harcourt to the plaintiff. The 2nd defendant’s counter-claim was dismissed. The defendants felt aggrieved with the decision and appealed

to the Court of Appeal. Before the Court of Appeal, the defendants as the appellants submitted the following issues for the determination of the appeal:

(1) Is the action in court caught by the Rivers State Limitation Law, such as to bar and extinguish the right of the respondent to possession of the land in dispute

(2) Is the learned trial Judge right to hold that Ude v.Nwara (1993) 2 NWLR (Pt.273) 638 did not extinguish the right of the respondent/lessor of re-entry or possession in the particular suit.

(3) Is the learned trial Judge right to have “foreclosed” the appellant’s case on the 26/6/1998 leading further evidence on the amended statement of defence and counter-claim

(4) Did the respondent prove its case on that burden explicit in Mogaji & Ors v. Odofin & Ors (1978) 4 SC 91, at 93. The Court of Appeal in its consideration of the appeal before it, resolved issues 1, 2 and 4 against the defendants but in its consideration of issue No.3 stated, after narrating the various adjournments as itemized earlier in its judgment: “All these adjournments and events took place in the absence of the appellants (defendants).

It would appear that the appellants did not take any steps to find out what was happening to their case as from the 7/4/1998 when they should have been in court but failed to turn up. The appellants had a duty to themselves and the court below the follow up the progress of their case. They therefore have a major share of the blame of what happened to them in the court below. I am firmly of the view that despite the misbehaviour of the appellants in not showing up in court on the 2nd and 7th of April, 1998 and not giving any reasons for their absence in the court, the trial court knowing the seriousness of the issues in the case could have given the appellants notice of the adjourned dates before closing their case and giving judgment against them. I therefore see merit under this issue.” Thus the defendants succeeded on that single issue having lost all the other issues, their appeal was allowed, the judgment of the trial court was set aside and the case was remitted to the Chief Judge of Rivers State for re-assignment to another Judge other than Manuel J, who will hear the case de novo. The plaintiff felt unhappy with the decision of the Court of Appeal and has now appealed to this court. The amended Notice of Appeal filed with the leave of this court contains (3) three grounds of appeal. Mr Clement Nwara applied to this court to join as an Interested Party to appeal as a co-appellant against the decision of the Court of Appeal. This court on the 14/31/2005 granted the party interested aforesaid, leave to appeal as a co-appellant. He filed a notice of appeal on the 21/31/2005 in which he set out four grounds of appeal. In pursuance of the rules of this court, both the two appellants filed briefs of arguments. The respondents merely filed a brief in response to the brief filed by the 1st appellant, the Attorney-General of Rivers State. They did not react to the brief filed by the party interested/appellant.

It should also be noted that with the leave of this court, the appellant has amended its brief and the respondents did not file any amended respondents’ brief. At the hearing of the appeal, learned counsel adopted the written briefs. Now, in his brief for the appellant, as amended, the learned counsel has formulated and submitted the following three issues for the determination of the appeal: