Augusta Chime V Chime (2001)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C 

The facts involved in this case are not seriously in dispute.

The 1st plaintiff is the wife of the 2nd plaintiff and an in-law to the 4th defendant. She sued the 1st, 2nd and 3rd defendants in the Enugu High Court of the then Anambra State claiming for the following reliefs as contained in paragraph 17 of her statement of claim:

“WHEREFORE the plaintiff claims against the defendants jointly and severally as follows:-

(i) A declaration that the Power of Attorney dated the 13th day of July, 1990 and registered as No. 64 at page 64 in Volume 1299 of the Lands Registry, Enugu, was not given by the 4th defendant.

(ii) A declaration that the Notice to Quit No. RP/1998/90 dated 24th July, 1990 and given by the 2nd defendant to the plaintiff in respect of the property plaintiff lawfully occupies at No. 22 Moorehouse Street, Ogui, Enugu is invalid, null and void and of no effect.

(iii) A declaration that the purported Conveyance/ Assignment between the 1st and 2nd defendants for which the approval/consent of the 3rd defendant is required and based on the Power of Attorney registered as 64/64/1299 is irregular, null and void.

(iv) An injunction restraining the defendants, their servants agents and functionaries from taking steps to perfect the assignment and from interfering with the plaintiff’s user and enjoyment of the property situate at No.22 Moorehouse Street, Ogui Enugu.”

Before filing the statement of claim and on the application of the 4th defendant he was joined in the action. The application was granted on 29/11/90. An application dated 6/12/90 on behalf of the 1st, 2nd and 4th defendants praying that the trial court should direct a Magistrate or any officer of the court to take the evidence of 4th defendant on commission and that during such exercise all parties to the suit should attend the examination of the 4th defendant was filed on 10/12/90. The depositions so taken would be filed in court and that it might be given in evidence by the 1st and 2nd defendants at the trial. After listening to learned counsel for and against the application the learned trial Judge granted it as prayed and adjourned the matter to 21/1/91 for hearing so that learned counsel could file their statement of claim as well as the statement of defence respectively.

Subsequent to the order (supra) plaintiff filed her statement of claim on 9/1/91. The 1st, 2nd and 4th defendants filed a joint statement of defence on 14/1/91. On the 21/1/91 Charles Chika Chime, John K. Chime, Raphael Chime and Gabriel Chime filed an application seeking for an order to be joined as co-plaintiffs in the suit.

As earlier fixed, the court sat on 22/1/91 to take the evidence of 4th defendant who was described as an ailing old man. The learned trial Judge had told the parties on 18/2/90 that he would himself take the evidence of the 4th defendant and on 22/1/91 as requested earlier by Mr. Mogboh SAN, counsel for the plaintiff, and on that date he took down the evidence of 4th defendant, Chief Mogboh SAN (Miss Ukoh with him) for the plaintiff while Mr. Anyamene SAN (Dr. Mogbana and Mrs. Udogu with him) for the 1st, 2nd and 4th Defendants appearing for the parties respectively. The 4th Defendant after being sworn on the Bible, gave his evidence at the end of which he was subjected to vigorous examination by Chief Mogboh, SAN. The learned trial Judge then adjourned the case for continuation of hearing on 12/2/91 without objection by learned counsel appearing. When the case came up on 12/2/91, at the request of Miss. Ukoh, learned counsel for the plaintiff, the case was adjourned to 25/4/91 to enable the parties negotiate settlement, and on the adjourned date Mr. Mabu appeared for the plaintiff. He told the court that the parties were continuing with the effort to settle out of Court and to that end another meeting had been fixed for 9/6/91. The case was further adjourned to 19/6/91 for report of settlement or continuation of hearing.

On 19/6/91 Mr. Mabu and Mr. Anyamene SAN appeared for the plaintiff and the defendants respectively. There was no settlement reached. The learned trial judge reluctantly granted another adjournment because learned counsel for the plaintiff reported that the plaintiff could not be in court for continuation of hearing of the case as she was not well. This was supported by a medical report. The learned trial judge adjourned the case to 3/7/91 with a remark that “No further application for adjournment will be entertained.”

On 2/7/91 learned counsel for the plaintiff/applicant moved the court for leave to join Charles Chike Chime, John K. Chime, Raphael Chime and Dr. Gabriel Chime as co-plaintiffs. The application being not opposed was granted as prayed and the co-plaintiffs were given 14 days within which to file their statement of claim while the defendants were equally given 7 days within which to file statement of defence to the co-plaintiffs’ statement of claim. The case was then adjourned to 24/9/91 for continuation of hearing. It is to be noted that the mode for service of the pleadings herein ordered was to be service on counsel by counsel.

The case came up again on 17/9/91 and with consent of learned counsel for the parties it was again adjourned to 24/9/91, the date originally fixed for hearing.