Hajara Sule V. Benson Ebune (2002)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

By a writ of Summons dated the 26th day of November, 1986 the respondent as Plaintiff initiated this action against the appellant before the Idah High Court whereby as per paragraph 21 of his statement of claim he claims the following reliefs:

A declaration that the Plaintiff is exclusively entitled to the customary and or statutory right of occupancy and to the immediate possession, occupation, use and enjoyment of the said plot of land of this Suit, and injunction interim and permanent against the defendant, his agent or agents, servant or servants.

Pleadings were filed and exchanged by the parties and subsequent amendments were made with the leave of the trial court. The defendant also claimed title to the land in dispute and raised the defence of res-judicata.

The Plaintiff also filed a Motion on Notice seeking for an injunctive relief. The motion suffered series of adjournments before it was heard and determined and the case was subsequently adjourned for hearing on 20/9/94. When the case came up for hearing on that date, both parties and their counsels were in court. Learned counsel for the plaintiff said they will commence hearing with the testimony of the plaintiff and call remaining witnesses at subsequent adjournment, learned counsel for the defendant asked for an adjournment as his brief had not been perfected and the matter was again adjourned to 19/10/94 for definite hearing with or without Counsel.

On the 19/10/94, the Plaintiff was present, the defendant was absent and Counsels for the two parties were present.

Counsel for the Plaintiff said they were ready for hearing and two witnesses who were in court would testify with the plaintiff. S. A. Agada of Counsel for the defendant however applied to withdraw from the matter as his brief had not been perfected. The court granted his application and he withdrew from the matter. On the application of plaintiffs Counsel the matter was then heard with the testimony of the plaintiff alone and he thereafter closed his case and the matter was adjourned for judgment on the 30/11/94.

On that date both parties were present and the court delivered its judgment and granted the declaratory relief sought by the plaintiff in his pleadings. The defendant now appellant being dissatisfied with the said decision has now appealed to this court on the following 4 grounds of appeal;

GROUNDS OF APPEAL:

1. The learned trial judge erred in law in not granting the appellant/defendant fair hearing in this case when he proceeded on the 19th day of October, 1994 with the hearing of the respondent/plaintiff and consequently finally determined the case upon such hearing without hearing the defendant/appellant and his witnesses and occassioned a miscarriage of justice.

Particulars of Errors:

(i) The defendant/appellant was duly represented by Counsels A. Agada who incidentally withdrew from the case on 19th October, 1994 when the defendant/appellant was not in court.

(ii ) The court granted leave to the defendant/appellant’s said counsel to withdraw from the case in absence of the defendant/appellant.

(iii) The plaintiff/respondent who was represented by Counsel J. A. Onuh was allowed to proceed with the case to conclusion without the knowledge/or presence of the defendant/appellant who has no knowledge that his Counsel S. A. Agada has withdrawn from the case.

(iv) The proceedings were conducted in breach of the rules of natural justice which require hearing of a party before being condemned.