Bassey Okon V. Asuquo Bassey Okon (2009)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

In a writ of summons issued at the Registry of the High Court of Justice of Cross River State, Calabar Judicial Division on 18/4/95 the appellant as plaintiff claimed against the respondent (then defendant) the following reliefs:

“1. Removal of the part of the building of the defendant on the property of the plaintiff.

2. Re-erection of the fence demarcating the plaintiff’s property and the defendant’s property in accordance with the original boundary.
3. The sum of N500,000.00 being damages for continuing trespass on the plaintiff’s property by the defendant and his agents.”

By leave of the trial Court the Respondent entered appearance and filed his statement of defence on 8/4/97, an action prompted by the appellant’s motion to set down the case for hearing on his pleadings only. The appellant filed a reply to the respondent’s statement of defence on 22/01/2001.

There is no indication as to whether or not the reply to the statement of defence was filed with leave of Court in view of the fact that the statement of defence was filed on 8/4/97 and the reply thereto filed on 22/1/2001. Though the writ was issued by a lawyer who also settled the statement of claim, the reply to the statement of defence was signed by the appellant. It is noteworthy that even though the matter was mentioned on 17/1/96 and fixed for hearing on 5/3/96, hearing did not start until 21/2/2001. In the series of adjournments from 17/1/96 to 21/2/2001 when the appellant opened his case as Pw1, he was represented by Counsel. On 11/2/01 when the matter came up for continuation of hearing the appellant was not represented by Counsel. The trial Court recorded that “The plaintiff say she would hold his own brief.” See page 37 of the records. The appellant, from that date till judgment, appeared in person. At the end of the cross-examination of the appellant as Pw1 on 11/3/2002 the record showed

“J. A. Dada Esq- That is all for this witness my Lord. Hon. Bassey Okon (Plaintiff) – My Lord I have no witness to call so that is my case. J. A. Dada Esq- My Lord, we are not calling any witness also, we are resting our case on the case of the plaintiff and will be addressing the Court.

COURT- Case adjourned to 25/4/2002 for address.”

See page 41 of the records. Learned Counsel for the Respondent concluded his address on 11/12/2002 and the Court adjourned the matter to 27/2/2003 “for ruling.” See page 47 of the records.

In the ruling (judgment really) delivered on 27/2/2003 the trial Court dismissed the appellant’s case, adding

“The no case submission of the defendant is accordingly upheld and the defendant is held not liable.”

See page 58 of the records.

Aggrieved by the judgment against him the appellant appealed to the Court on five grounds. From the five grounds of appeal the appellant, in his brief of argument, distilled the following lone issue for the Court to resolve.

“Whether the learned trial judge in the absence of any contradictory evidence was right to disbelieve the credible evidence proffered by the plaintiff in this case.”

In his brief of argument the Respondent ask the Court to determine