Ogbueshi Joseph O.g. Achuzia V. Wilson Fidelis Ogbomah (2016)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This an appeal against the judgment of the Court of Appeal Benin Division delivered on 13th February, 2004 wherein the lower Court upheld the judgment of the High Court of Delta State holden at Asaba. At the trial Court, the plaintiff’s claims were as follows:

“(a) A declaration of the Plaintiff is entitled to the grant of statutory right of occupancy in respect of all that parcel of land known as No. 37 Nnebisi Road, Cable Point, Asaba;

(b) An injunction to restrain the defendant whether by himself, his servant or agents or otherwise from further entering of demolishing the said house situated at No. 31 Nnebisi Road, Asaba Cable Point, Asaba.

c) Three million Naira (N3,000,000,00) special damages for the destruction caused on the property by the defendant,”

Upon being served with the writ of summons, the appellant as defendant, entered a conditional appearance through his counsel. The respondent who was the plaintiff filed his statement of claim on the 17th day of May, 2001. The appellant did not file his statement of defence. Simultaneously with the filing of statement of claim, the

respondent filed a motion for interlocutory injunction, which was argued in the absence of the appellant and his counsel. It was then adjourned to the 23rd day of July, 2001 for ruling.

On 23rd July, 2001, the learned trial judge delivered his ruling on the respondent’s application for interlocutory injunction and adjourned the case to the 9th October, 2001 for mention. Neither the appellant nor his counsel was in Court. On that date, the Court adjourned the case to the 24th October 2001 for hearing. No hearing notice was issued and served on the appellant or his counsel informing them of the date of hearing. As at 9th October, 2001 when the matter was adjourned for hearing to 24th October, 2001, the respondent did not file an application for judgment to be entered against the appellant in default of defence as required by Order 27 Rule 8 (1) of the Bendel State High Court (Civil Procedure) Rules 1998 (as applicable to Delta State). Without serving hearing notice on the appellant, the trial Court heard the case and entered judgment for the plaintiff, now respondent.

In an appeal to the Court of Appeal, the lower Court set out relevant portions of the

proceedings before the trial Court which confirmed non – service of hearing notice on the appellant. The lower Court however, held that since the appellant was aware of the ruling of the trial Court delivered on 23/7/2001 and the order adjourning the case to 9/10/2001 for mention the trial Court was right not to have ordered the service of fresh hearing notice on the appellant or his counsel when the matter was eventually adjourned for hearing on 24th October, 2001.

On the issue whether the trial Court could adjourned the case for hearing when pleadings had not been closed, the Court below referred to Order 27 Rule 4 of the Bendel State High Court (Civil Procedure) Rule and held that the trial Court was right to have adjourned the case for hearing when pleadings had not been closed and in absence of any application for judgment. The Court then upheld the judgment of the trial Court. The judgment of the Court below was delivered on the 13th day of February,2004 and on 28th, February, 2004, the appellant filed notice of appeal. Three grounds of appeal were filed out of which two issues have been distilled for the determination of this appeal.

The two issues nominated by the appellant are as follows:

‘1. Whether the learned Justices of the Court of Appeal were right in holding that there was no need for the learned trial judge to order the service of hearing notice on the Appellant or his counsel in this case.

2. Whether the learned Justices of the Court of Appeal were right in applying the provisions of Order 27(4) of the Bendel State High Court (Civil Procedure) Rules 1988 to the facts of this case.

The learned counsel for the Respondent also distilled two issues for determination. The two issues are the same as those of the appellant but couched differently as follows: