Linus N. Nwaigwe & Ors V. Sidney Anyanwu (2016)

LawGlobal-Hub Lead Judgment Report

ITA GEORGE MBABA, J.C.A. 

Appellants filed this appeal against the judgment of Imo State High Court, in Suit No. HOW/201/98, delivered on 12/12/2008 by Hon. Justice C. I. Durueke, whereof the trial Court entered judgment for the Plaintiff (Respondent) and dismissed the Counter-claim of the Defendants (now Appellants). Appellants had obtained the order of this Court on 30/1/13 to appeal, by way of extension of time to do so.

The claims at the Lower Court, as per the writ of summons filed on 7/9/1998 and the Amended statement of claim of 14/2/2006, were for:
i) A declaration that the plaintiff is entitled to the statutory Right of occupancy over and in respect of the properties known as and called plots 255 and 256 Ikenegbu Layout Extension Owerri, Imo State.
ii) Perpetual injunction restraining the defendants jointly and severally from acts of trespass into the said plots or parcel of land.

“A brief facts of the case at the Lower Court shows that Appellants (as Defendants) were not keen at filing their defence. They filed memorandom of appearance on 20/1/04. In March 2004, they were

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granted 21 days extension of time to file their defence, which they failed to do see pages 69 and 73 of the Records. When the Plaintiff filed a motion for judgment, the Defendants (Appellants) then brought another application in 2005 to file their defence and a deeming order, which was granted and the defence deemed duly filed. See page 89 of the Records.

In the statement of defence, Appellants raised a counter claim, as follows:
Wherefore: The 3 defendants claim the sum, of N1,000,000.00 (One Million Naira) being special and General Damages for trespass.
Particulars:
(a) Cost of building the fence destroyed by the Plaintiff is N300,000.00
(b) General Damages is N700,000.00
(See page 87 of the Records of Appeal)

Hearing commenced on 2/3/2006, with PW1, PW2 and PW3 testifying, without the defendants Counsel appearing to cross examine them. On 21/11/2006 the plaintiff closed his case and the matter was adjourned for judgment. Before the judgment could be delivered, the Defendants brought a motion praying to be allowed to defend the case. That application was allowed on 11/5/2007,

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when the trial Court also ordered for accelerated hearing of the suit.

PW1, PW2 and PW3 were recalled and cross-examined but PW3 was partly cross examination on 2/7/2008 and the case adjourned for continuation on 15/7/2008. On that 15/7/2008 the Defendants (Appellants) were not in Court and the matter was adjourned off record. After the proceedings of 2/7/2008, the Defendants never came back to Court.

The Respondent said, on 22/5/2008, when the defendants? Counsel was to conclude the cross examination of PW2, he was in Court, but when the matter was called he had disappeared, and the matter was stood down but Counsel never appeared again. And on 26/11/2008, when the matter was again adjourned, the Appellants (Defendants) and Counsel were absent and on the application of the Plaintiff?s Counsel, the Defendants were foreclosed and the matter adjourned for judgment on 12/12/2008, when judgment was entered for the Plaintiff.

Appellant had later filed a motion to set aside the judgment and the same was dismissed on 9/2/11 by the trial Court, in a considered Ruling.

?Appellants filed this appeal against the Judgement of 12/12/08 as