Robinson Anyoha & Ors V. Lawrence Chukwu (2007)

LawGlobal-Hub Lead Judgment Report

RHODES- VIVOUR, J.C.A.

On 15/11/2000, Ukachukwu, J., sitting in the Orlu High Court, in Imo State entered judgment in favour of the plaintiff/respondent in suit No. HOR/16/98.

The concluding part of the judgment reads:

“My view is that the said document exhibit ‘A’ has the effect of defaming the plaintiff and thereby lowering his image and estimation before right thinking members of the society …

I therefore hold that the plaintiff has proved the case against the defendants. I award N500,000 damages to the plaintiff against the defendants jointly and severally.

There will also be cost to plaintiff assessed at N3,000.00.

Dissatisfied with the judgment against them, the defendants/appellants quickly filed a notice of appeal on 27/11/2000, that is to say twelve days after judgment was delivered.

In accordance with Order 6 rules 2, 4(1) of the Court of Appeal Rules, the defendants, now the appellants filed their brief on 17/9/01. The respondent’s brief filed on 23/4/02 was deemed properly filed and served on 25/4/02.

At the hearing of the appeal on 27/12/07, learned counsel for the appellants, Mr. K.C. Nwufo adopted his brief and urged us to allow the appeal. Learned counsel for the respondent, Mr. S.N. Chukwuma adopted his brief and urged us to dismiss the appeal. The appellants formulated three issues for determination.

1. Whether there is a conclusive proof before the court that the defendants/appellants were served the writ of summons and statement of claim.
2. Whether the defendants/appellants were denied their right to fair hearing when the learned trial Judge failed to issue and ensure the service of hearing notice on them.
3. Whether the learned trial Judge was right in relying on unpleaded facts/evidence in arriving at his judgment against the appellants.

The respondents also formulated three issues for determination.

1. Whether ground one in the amended notice of appeal is competent being one challenging on interlocutory decision of the High Court on the issue of service of the writ of summons in suit No. HOR/16/98.
2. Whether it was necessary in the circumstances of this suit to order the service of hearing notices on the defendants/ appellants.
3. Whether the learned trial Judge relied on evidence of unpleaded facts in his judgment.

I have considered the issues above, and I am satisfied with the issues formulated by the appellants. I adopt them for determination of this appeal. I must observe that issue NO.1 therein is the most important, in that if it succeeds the whole proceedings and the judgment from the court below will be declared a nullity and it would be so obvious that it would be unnecessary to consider any of the other issues.

Learned counsel for the appellants observed that there are conflicts in the affidavit of service and oral evidence of PW1 and 2 on the issue of service of originating processes on the appellants.

He submitted that in such a situation the learned trial Judge should discountenance all the evidence on service that was before him.

Reference was made to: Ozara Ekuma & Anor. v. Silver Eagle Shipping Agencies (PH) Ltd. (1987) 4 NWLR (pt. 65) p. 472.