Igwe Iloegbunam Ajuta Ii & Ors V. Christopher Ngene & Ors (2001)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

The appellants sued the respondents at the Anambra State High Court in Amawbia/Awka Judicial Division claiming as follows:

1. Declaration that the plaintiffs in possession are entitled to customary rights of occupancy in respect of the “Ofia Owele” land.
2. Perpetual injunction to restrain the defendants from further trespassing on the said land.
3. One hundred naira damages for trespass.

Upon service of the writ on them the defendants/respondents filed a motion to strike out the suit on the ground that the suit constitutes an abuse of the process of the court. Learned counsel for the respondents duly moved the motion which suffered a number of adjournments for counsel for the appellants to reply. When on 1/7/97 learned counsel for the appellants was absent in court due to his engagement in another court, the learned trial Judge of the lower court struck out the suit for want of diligent prosecution. It is against that order of striking out that this appeal has come to this court.

Parties have exchanged their briefs to this appeal. The appellants formulated five issues for determination from their five grounds of appeal. The issues are:-

“1. ISSUE I: (FROM GROUND (sic) 1&2)

Whether the trial Judge was right and exercised his discretionary powers both judiciously and judicially in the interest of justice when he struck out the suit as he did, by reason of the plaintiffs’ counsel letter requesting adjournment in the circumstance of the case.

2. ISSUE 2: (FROM GROUND 1)

Whether the refusal of adjournment by the trial Judge in the circumstance, and the striking out of the entire plaintiff’s suit, is not a complete denial of fair hearing to the plaintiffs in this suit.

3. ISSUE 3 (FROM GROUND 3)

Whether the trial Judge was right when he held that the absence of the respondents’ counsel in court on the date of hearing, meant in law that there was no opposition to the applicants’ motion, and that there was no counter- affidavit, notwithstanding the counter-affidavit filed and argued in the course of the same motion before hearing began de novo.

4. ISSUE 4: (FROM GROUND 4)

Whether the trial Judge was right in not taking judicial notice of process filed and contained in the case filed before him, and thereby arrived at the conclusion that the counter-affidavit upon which the plaintiffs/respondents argued the motion before the court earlier, was not counter-affidavit; Or, in the alternative, whether the trial Judge adequately considered material evidence before him when he arrived at his conclusion that the respondents did not oppose the applicants’ motion or that the respondents were not interested in prosecution of their suit.

5. ISSUE 5: (FROM GROUND 5)

Whether the trial Judge acted rightly in law and in keeping with the justice of the case, when he elected suo motu and showed a preference over issues to be tried, ever before hearing arguments from the parties; in other words, whether the trial Judge held the proper balance of justice between the parties as an impartial arbiter in the circumstance of the case.”

Arguing his first issue in his brief, learned counsel for the appellants submits that the learned trial Judge of the lower court did not exercise his discretion judicially and judiciously in striking out the suit and in awarding heavy costs despite the fact of counsel’s application in writing for an adjournment, and despite the fact that the appellants were present in court. It is argued that the learned trial Judge ought to have granted an adjournment since counsel was engaged in a superior court and in a personal case. Learned counsel charged the learned trial Judge of bias and refers to Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; 223 at 229.

On issue No. 2, learned counsel argues that the striking out of the suit with heavy costs in the presence of the appellants was a case of denial of fair-hearing. Counsel refers to Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157 at 159-160; Isiyaku Mohammed v. Kano N.A. (1968) 1 All NLR 424; Atano v. Att-General for Bendel State (1988) 2 NWLR (Pt. 75) 201 at 202; Ariori v. Elemo (1983) 1 SCNLR 1; (1983) 1 S.C. 13 at 23-24.

On issues 3 and 4 learned counsel complains about the trial Judge’s remarks that there was no counter-affidavit in opposition to the motion when in fact there was one. Such a decision, learned counsel describes as perverse. Counsel refers to a number of decisions vis:

“(1) Onuoha v. The State (No. 1) (1988) 3 NWLR (Pt. 83)460; 20 at 24;