Pastor Michael Ani & Anor V. Chief (Mrs.) Philomina Effiok (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of His Lordship, D. N. Eyamba Idem, Chief Judge of High Court of Justice, Calabar, delivered on 16th May, 2006 in Suit No. HC/396/2003, wherein judgment was entered in favour of the plaintiff by the grant of declaration of entitlement to the statutory right of occupancy in respect of the land situate at No. 4 Eta Okon Street, Calabar, Calabar South Local Government Area, declaration that the erection of a permanent church building thereon by the defendants is illegal and the award of N15,000.00 as general damages.

At the trial court, the reliefs claimed by the plaintiff against the defendants as endorsed on the issued writ of summons and paragraph 13 of the statement of claim subsequently filed thereto are reproduced below:

“(13) The defendants activities on the land particularly the illegal erection of a permanent church defendants trespassers and liable to damages.

Consequent upon the alleged wrongful acts of the defendants, the plaintiff has suffered loss and damages and claim form the defendants the following:-

(a) A Declaration that the plaintiff is entitled to the statutory right of occupancy over the parcel of land situate at No.4 Eta – Okon Street, Calabar South Local Government Area.

(b) A Declaration that the erecting of a permanent church building on the plaintiff parcel of land at No.4 Eta – Okon Street despite he pendency of the suit is illegal and without the consent of the plaintiff is a breach of contract. (sic)

(c) N20 Million (Twenty million) general and special damages.”

Before the trial court, the plaintiff testified in support of her claim and also tendered various documents which were marked and admitted as exhibits. The defendants who had hitherto filed their statement of defence, wherein they denied virtually all the averments contained in the plaintiff’s pleadings, also testified by calling one defence witness and tendered various documents as exhibits before the trial court.

At the end of it all, the trial court’s decision, favoured the plaintiff. The defendants were dissatisfied with the said judgment.

They obtained leave of this Court to file their notice and grounds of appeal out of time. Upon the grant of the said leave on 17th February, 2009, the defendants filed their notice of appeal, which contained two grounds of appeal on 23rd February, 2009. It is to be noted, that during the hearing of the matter before the trial Court, the 1st defendant died and he was substituted with the 1st appellant herein. Also, while the appeal was pending before this court, the plaintiff too died and she was substituted by the present respondent. Henceforth in this judgment, the defendants shall be called the appellants, while the plaintiffs before the trial court will be referred to as the respondent.

From the two grounds of appeal contained in the notice of appeal, two issues were formulated for determination. They are:

1. Whether the defendants were given fair hearing when the court below did not even order hearing notices to be issued when the defendants and counsel were absent.
2. Whether it was correct for the court to make out a case for the plaintiff in the lower court.

On the 30th November, 2010, this Court granted appellant’s application, brought by way of motion on notice and filed on 16th July, 2010, wherein it was prayed that the appeal be heard and determined on the brief of argument filed by the appellants alone, since the respondent has failed or neglected to file any brief of argument in response thereto. Also on 13th January, 2011 when the appeal matter came up for hearing before us, when we were satisfied that the respondent has been duly served with hearing notice against the day’s sitting, we proceeded with hearing of the appeal. Learned counsel for the appellant, A.. B. Cohbam Esq. adopted and relied on appellant’s brief of argument which was filed on 23rd April, 2009. In his oral amplification on the appellants’ brief, learned counsel for the appellants referred to page 65 of the record of appeal and stated that on the date mentioned therein, he was in coma and on admission in the hospital receiving treatment and as such, ho service of court process could have been effected on him under that condition. It was urged on us, that the appeal be allowed with the setting aside of the lower court’s decision.

Regarding the two issues formulated above, let me state, that if I come to the conclusion that there was no fair trial or that the trial was somewhat inconclusive, there would be no cause to give further consideration to the second issue. Howbeit, if I should come to the conclusion that there was a fair trial and the trial was conclusive, notwithstanding the complaints of the appellants herein and the absence of address by their learned counsel, I shall then proceed to consider the second issue.