Prince Syklvester Eweka V. Efese Obanor & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

This is an appeal against the Ruling of the Benin High Court of Justice sitting in Benin, Edo State delivered on 21st November 2001 in which the application to set aside the judgment delivered on the 11th day of July, 1997 in favour of the Respondents.

The facts as gathered from the file is that the father of the appellant filed a writ of summons and State of Claim against the Respondents and the Respondents filed their Statement of Defence and in an Amended ‘Statement of Defence the Respondents adduced and counter claim.

Pleadings were settled by one Dr. C.Y.O. Adei Aburime & Company Solicitors. Following the death of A. Aburime of Counsel one S.D.N. Osakwe became the Solicitor to the Respondents.

In the process a motion for substituted service dated 22 June 1994, the Respondents in their affidavit deposed to the fact that the appellant’s counsel had moved out of jurisdiction of the Court and could not be served. As at that date, the Appellant’s father the original plaintiff had died on 12/4/93.

The application to substitute the present plaintiff was served by way of substituted service. The respondents opened their case in the counter claim without the counter claim having been set down for hearing. Judgment of the counter claim was delivered on 11th July 1997.

On 15/12/98 when the appellant became aware of this judgment filed a motion on 15/1/01. A motion praying the court to set aside the judgment dated 11th April 2001 but the court below refused on the ground the was functus officio. This Ruling is contained in page 143 of record.

With this the appellant was dissatisfied and filed the following grounds of appeal

“GROUNDS OF APPEAL

1. The decision is against the weight of evidence

2.The learned trial Judge erred in law when he held

“This Court lacks the jurisdiction to grant the motion to set aside the judgment on the Counter Claim of the Defendants, which judgment is on merit of the Counter Claim.”

PARTICULARS ERROR

a. The evidence in support of the Counter Claim was taken in the absence of the plaintiff.

b. The Plaintiff did not cross-examine the Defendant Counter Claimants and their witnesses.