Mr. Allwell Ohajunwa & Anor V. Chief Sampson Obelle & Aonr (2007)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The respondents herein sued the appellants as defendants at the Port Harcourt High Court of Rivers State, jointly and severally for the sum of N30,000,000.00(Thirty Million Naira) being and representing aggravated damages for acts of false imprisonment by the appellants by directing and procuring the police to arrest and detain the respondents on two occasions for the same allegation of hiring seven assassins to kill the appellants which allegation the appellants ought to have known to be false.

On 15/5/1995, the learned trial Judge Olukole (J) entered judgment against the appellants in favour of the respondents based on their statement of claim without hearing evidence, relying on Order 17 rule 4 of the High Court (Civil Procedure) Rules 1987 and aggravated damages in favour of the respondents in the sum of N6.000.000.00 (Six Million Naira).

On 9th March 1999, the learned trial Judge dismissed a motion on notice to set aside the default judgment and assessment of damages.

Being dissatisfied with the default judgment and ruling dismissing the motion on notice to set aside the default judgment appellants filed a notice of appeal on 12/3/1999 containing two grounds with their particulars reproduced as follows:

“(i) The learned trial Judge erred in law by failing to uphold on totality of the materials before him that the breach of the audi alrerm (sic) partem rule had resulted in a violation of the appellants’ constitutional right to fair hearing in relation to the default judgment sought to be set aside.

Particulars of Error in Law

(a) The appellants’ chief complaint was that they were not served with the writ of summons or the statement of claim.

(b) The trial Judge on 28th February, 1995 adjourned the case to 15th May, 1995 for hearing and ordered hearing notice to be issued on the appellants.

(c) The hearing notice was not issued and served on the appellants as ordered by the trial Judge till the 15th May, 1995, the date fixed for hearing.

(d) The trial Judge resort to relying on an affidavit of service without an endorsement as to the mode of service and entered judgment against the defendants without confirming service of the hearing notice ordered to be served on him.

(e) It is a denial of the right to fair hearing to hold that the appellants do not need to be served any hearing notice.

(f) The appellants can enter an appearance if they were served with the writ of summons.

(ii) The learned trial Judge erred in law in failing to exercise his discretion judicially by upholding the appellants’ prayer which sought to set aside the default judgment in light of materials before the court.