Alphonsus Hungwa V. Akaayar Uwuokwu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling and judgment of the High Court of Justice of Benue State sitting at Makurdi in suit no. MHC/244/2003 delivered on 5/3/2004.

The respondent on the 19th day of August, 2003 sued the appellant as 1st defendant and the Bureau of Lands & Survey as 2nd defendant in the High Court of Benue State, Makurdi claiming the refund of N 330,000:00 (Three Hundred and Thirty Thousand Naira) only, being failed consideration on plot no. BNA 8095.

The relevant facts are: The respondent bought plot no, BNA 8095 from the appellant in 2001 for the sum of N330, 000:00. The appellant a deemed holder of a customary title to the land had applied to the 2nd defendant for a grant of a right of occupancy. The respondent later discovered that a 3rd party one Charles Orbunde claimed title to the land. After pleadings were exchanged, the respondent through his counsel brought a motion for judgment which motion was served on the appellant’s counsel in court on 3/2/2004. Thereafter counsel for the appellant withdrew from the matter and an adjournment was granted to the appellant to brief another counsel. On 5/3/2004 Mr. Sule a new counsel appeared for the appellant while Mr. Tarpav for the respondent moved the motion for judgment. Mr. Sule prayed the court for an adjournment to enable the appellant file a counter affidavit or in the alternative to be allowed to address the court before judgment for the reason that the motion moved was not part of the processes the former counsel for the appellant transmitted to him. The learned trial judge ruled refusing the application for an adjournment and went ahead to enter judgment for the respondent.

Dissatisfied with the decisions of the court below the appellant has appealed to this court vide an undated Notice of Appeal with seven (7) grounds filed on the 4th day of May, 2004. The 2nd defendant did not appeal neither was he made a respondent.

In accordance with the rules of this court, briefs were duly filed and exchanged. Appellant’s brief dated 18/6/2005, filed and deemed properly filed on 18/10/05 by the order of this court was prepared by Mr. A.A. Sule, The appellant’s brief of argument raised the following four (4) issues for determination;

(1) “Whether the learned trial Judge exercised his discretion, judicially and judiciously in the circumstances by refusing the application for adjournment (see: Ground 1 of appeal).

(2) Whether it is not a breach of the appellants right to fair hearing, by the learned trial Judge’s refusal to both near (sic) the final address of his counsel; and proper legal representation in his cause, as well as the hearing of the motion, and delivery of final judgment on a date the suit was fixed for hearing. (see Grounds 2, 3, 4 and 5 of appeal)

(3) Whether the learned trial Judge was right in a land dispute to have adopted a fast track trial procedure, sidelining, the hearing of the appellant’s oral and documentary evidence, on basis that the pleadings disclose a weak defence (see: Ground 6).

(4) Whether, there was any basis in fact and law for the award of the N50, 000: 00 (Fifty Thousand naira) only General damages awarded to the respondent by the learned trial Judge.

On their own part, the respondent’s brief prepared by Mr T.T. Hyundu was dated 8/5/2006 and filed 7/11/2006 but deemed properly filed by an order of this court on 31/10/2006. In submitting that there are three (3) issues that arise for determination counsel adopted appellant’s issues nos. 1, 2, and 4 as reproduced above,

At the hearing of the appeal on 13/4/2011 the learned counsel for the appellant was not present in court although the court’s record shows the appellant was served with Hearing Notice through him on 11/4/2011. Having filed a brief of argument he was deemed to have argued the appeal pursuant to Order 17 Rule 9 (4) of the Court of Appeal Rules 2007. Mr. Atonko learned counsel for the respondent, adopted and relied on the respondent’s brief and urged the court to dismiss the appeal.

I adopt issues nos. 1, 2, and 4 formulated by the appellant’s counsel as issues that arise for the determination of this appeal. However I have observed that the resolution of issue no 1 as formulated is interwoven with the resolution of issue no 2 and as such I shall resolve issues 1 and 2 jointly.

Learned counsel for the appellant submitted that the learned trial Judge did not exercise his discretion judicially and judiciously when he refused to grant the application for adjournment. He argued that justice demands that the new counsel should have been allowed an adjournment to sort out the processes in the matter. Mr. Sule submitted that the refusal to grant the adjournment as sought was a clear breach of the appellant’s right to fair hearing. He relied on; Aliyu V. Chairman Rent Tribunal (No. 5) Kaduna & Ors. (2003) FWLR (pt 155) 636 at 646-647