Festus Onyekaonwu & Anor V. Christian Udegbunam (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an interlocutory appeal against the ruling of Anambra State High Court (the lower court) (Coram Nweze J) delivered on 17th of May 2005 wherein the lower court dismissed the suit instituted by the plaintiffs/appellants. At the lower court, the plaintiffs who are now appellants in this case took a writ of summons against the defendant now respondent. In their third further Amended Statement of Claim, the following reliefs were sought namely:

a) A declaration setting aside the Deed of Assignment between the Plaintiffs and the defendant dated 27th day of January 1974 and registered as NO. 69 at page 69 in Volume 439 of the Deeds Registry, kept in the Lands Registry, Enugu on grounds of fraud and misrepresentation.

b) A declaration of title to a statutory right of occupancy over the property situate at and known as NO.21 Umunna Street Odoakpu, Onitsha.

c) An order for accounts over the said property from January 1974.

d) An order for possession of the said property.

The facts which gave rise to the instant appeal can be summarized briefly as follows: The case was initially commenced by Olike J of the lower court and had reached the stage of taking the address of the defendant’s counsel before His Lordship, Olike J retired. Upon OIike J’s retirement P.A. Obidigwe J, commenced the hearing of the case de novo before he was transferred to another division. The learned counsel the plaintiffs then applied for the documentary exhibits tendered and the copies of same proceedings of the trial before Obdigwe J in order to commence proceedings before another judge. Only copy of the testimony of one witness could be produced by the court officials, while the exhibits tendered in evidence could not be located. The case, with the departure of Obidigwe J, was subsequently transferred to Nweze J who commenced hearing in the case on 10/5/2005 after he granted order for accelerate hearing. On that day, the plaintiffs commenced their case by calling their witness. Midway into the testimony of the witness, the plaintiffs’ counsel asked for adjournment. The application for adjournment was granted by the court which awarded N1, 000.00 costs to the defendant. The case was then adjourned to 12/5/2005. On 12/5/2005 the case was further adjourned by the court, albeit reluctantly, at the instance of the plaintiffs’ counsel apparently due to the absence of his clients from court. The court again awarded N3, 000.00 cost to the defendant. Then on 17/5/2005, instead of proceeding with the hearing of the case, the plaintiffs’ counsel filed a Motion on Notice for amendment on that same day the learned counsel again applied for adjournment of the case and applied to the court to vacate of the two days earlier fixed for the hearing of the case. The defendant’s counsel opposed the application for adjournment and urged the court to dismiss the suit or in the alternative he asked the court to award him N5,000.00 costs for the adjournment on that day and another N5,000.00 for the vacation of the two remaining dates earlier slated for the continuation of the substantive case. The trial court adjourned the matter to 19/7/2005 and merely awarded N5, 000.00 for the adjournment without awarding any costs for the vacation of the two earlier days and fixed the case against 12/9/2005 for the hearing of the motion. The learned counsel for the plaintiffs however became aggrieved with the latest award of cost by the lower court and thereupon filed an interlocutory appeal against the same.

On 12/9/2005, the trial court heard and granted the plaintiffs’ motion for amendment of their statement of claim and thereafter adjourned the substantive case to 24/1/2006 and subsequently set the 8th, 9th, 22nd, 23rd and 24th of February 2006 for continuation of hearing of the substantive case in line with its earlier order for accelerated hearing of the case and again awarded N2000.00 costs to the defendant/respondent.

Then on 24/1/2006 when the court reconvened, the plaintiffs counsel intimated the court that his witnesses were not in court and that the court officials failed to provide him with all the documents he applied for because they could not trace them adding that without them the case could not go on.

He urged the court to vacate the dates it earlier gave for the continuation of hearing in the case. He also said he could not mind re-listing the case at a later stage. In opposition to the plaintiffs’ counsel’s application supra, the learned defendant’s counsel applied under Order 24 Rule 12 of the High Court (Civil Procedure) Rules for the dismissal of the suit with N10, 000.00 costs since the plaintiff had already given evidence in the case. Responding to this request of the defendant’s counsel, the learned counsel for the plaintiffs urged the court to strike out the case rather than dismissing it and also urged it not to award any costs. In a short ruling dated 24/2006 which gave rise to the substantive appeal by the present appellant upon being dissatisfied with same, the lower court ruled as below:

“Court:- This is a 1979 case. The court had done all in its power to expedite the hearing of the case. The plaintiff CANNOT go on. In my view there must be an end to litigation. The plaintiffs are not even in court. In my view there is not point (sic) retaining this case on the cause list. It is hereby dismissed with N5, 000.00 cost in favour of the defendant.

Sgd J.I. Nweze

(JUDGE)

24/1/2006.”