Anthony Okeke V. Petmag Nigeria Limited (2004)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A.

This is an appeal against the judgment of Justice I. E. Ogbodu, of Delta State High Court, holden at Ogwuashi-Uku, dated 2/2/2000. The plaintiff/respondent in his amended statement of B claim, claimed against the defendant/appellant as follows:
“Wherefore the plaintiff claims from and against the defendant as follows:-

(a) Return of the plaintiff’s said vehicle to the plaintiff in its pre-accident condition, its market value then being N500,000.00 (Five hundred thousand naira).

(b) Payment of the sum of N2,500.00 (Two thousand five hundred naira) per day to the plaintiff for loss of use of the said vehicle from 17/12/95 to 3/7/97, which comes to N1,407,500.00 (One million, four hundred and seven thousand, five hundred naira).

(c) Payment of the sum of N2,500.00 (Two thousand five hundred naira) per day to the plaintiff for the loss of use of the said vehicle from 4/7/97 until the defendant refer us the vehicle.”

The writ of summons in this case was issued and served with the leave of the lower court, thereafter; the defendant entered his conditional appearance and filed the statement of defence.

Thereafter, several hearing notices were issued and served on the defendant at his address for service within jurisdiction, and on the 2/8/99, the plaintiff opened his case after the court was satisfied with the proof of service. On the 20/10/99, the plaintiff closed his case after calling three witnesses, and the case was adjourned to 27/10/99 for address. On the 27/10/99, the plaintiff’s counsel addressed the court and the case was subsequently adjourned to 22/11/99 for judgment.

Thereafter, the defendant filed a motion dated 15/11/99 in which he prayed the court for the following reliefs:
“1. An Order arresting the judgment of this Honourable court slated to be delivered on the 22nd November, 1999.

2. An Order setting aside the proceedings this Honourable court had on the 20/5/99, 30/6/99, 12/7/99, 2/8/99, 30/9/99, 20/9/99, and specifically on the 27/10/99 for breach of fair hearing.

3. An Order commencing the hearing of this suit de-novo, so as to avail the applicant of the opportunity to cross-examine the plaintiff’s witnesses and defend this suit.”

The lower court in its ruling dated 22/11/99 dismissed the application and held thus:-
“It is difficult for court to see the basis for this application because it is in the record of this court that counsel, Mr. S.C. Ibekwe was served a fresh hearing notice on behalf of the defendant on 12/7/99, being the address for service in this jurisdiction, left by the defendant. Again, on 18/10/99, another hearing notice was served on the said Mr. S. C. Ibekwe. In view of this facts, defendant has failed to satisfy this court of any reason as to why he failed to appear to defend this action. The application is baseless and it is dismissed on the ground that it lacks merit. The court will therefore proceed to deliver the judgment on this case.” See page 86 of the record of proceedings.

Thereafter, the court proceeded and delivered its judgment in which it found for the plaintiff and ordered as follows: See page 91- 92 of the record:
“Finally, I find plaintiff’s case proved, and defendant liable for damages for the unlawful detention of the plaintiffs vehicle No. Delta AA 173 SHK for a period of over 3 years which infact still continues till now.”

It is therefore ordered as follows:
“1. Defendant shall immediately return to plaintiff said vehicle in its pre-accident condition.

2. Defendant shall pay to plaintiff the sum of N1,407,500.00 being cost of hire of alternative vehicle from 17/12/95 to 3/7/97.