F. Wakwah & Ors. V. S. A. I. Ossai (2001)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A. 

T

his is an appeal against the judgment of Ichoku J. (as he then was) of the Rivers State High Court holden at Port Harcourt, delivered on 9/6/93 and 3rd February, 1993 in suit No. PHC/312/92.

By originating summons, the respondents claimed against the appellants who were tenants in his property situate at No. 61 Ikwerre Road, Port Harcourt the following relief:

“An order of this Honourable Court directing all the defendants to pay their arrears of rents and mense profits into the High Court Registry forthwith and in default of such payments to deliver up vacant possession of the premises forthwith.”

The appellants’ case put briefly is that they were tenants at No. 61, Ikwerre Road, Port Harcourt, which property is in dispute between one Chief Uche (the builder and the owner of the house) and the respondent (who claimed to have acquired the house through an abandoned property deal). The dispute over the house is still pending before the Court of Appeal No. CA/PH/134/89. During the pendency of the appeal, the respondent commenced an action by means of an originating summons against them to recover possession of the premises and to claim arrears. Despite the fact that the suit raised very contentious issues, the learned trial Judge refused to allow them to defend the suit by filing a counter-affidavit. He also discountenanced the counter affidavit filed by them to challenge the originating summons.

At the hearing of the originating summons, the learned trial Judge relied solely on the affidavit filed by the respondent and a document marked Exhibit A by him which was not tendered in evidence by any of the parties.

The respondent’s case put briefly was that by originating summons, he claimed against the defendants who were tenants in his property at No 61 Ikwerre Road, Port Harcourt for arrears of rents and mense profits to be paid into the High Court Registry and in default, to deliver up vacant possession of the promises.

The originating summons which was fixed for argument on 1/6/92 was duly served on the appellants and they entered a conditional appearance on 21/5/92. They filed no counter-affidavit. Counsel commenced his argument on 1/6/92 and it was further adjourned. After a series of adjournments at the instance of defence counsel, the learned trial Judge entered judgment in favour of the respondent against the appellants based on the affidavit in support of the originating summons and a document Exhibit A filed by both counsel in court.

At the end, the learned trial Judge delivered his judgment and granted the relief claimed by the respondent.

Dissatisfied with the judgment, the appellants have appealed to this court and filed a brief and a reply brief in which they framed five issues for determination:-

“1. Whether the trial Judge was right in denying the appellants the right of defence by refusing to look at the counter-affidavit filed by the appellants in answer and in opposition to the originating summons, (arising from Ground 1)?

2. Whether the trial Judge was right in giving judgment in an originating summons in a matter in which the facts are highly contentious and disputable (arising from Ground 4)?.
3. Whether the trial Judge was right in basing and founding his decision on a piece of evidence that was not before or properly before the said court (arising from Ground 2)?.
4. Whether the trial Judge was right in granting possession of vacant premises to the respondent and the right to collect and manage rents when such was not claimed in the summons (arising from Ground 3)?.
5. Whether the trial Judge was right in refusing to join Chief Okafor the claimant to the property, in this suit when he is a person likely to be affected by the outcome of this suit. (arising from Ground 1 of the notice of appeal on page (8) of the records of appeal)?.

The respondent also filed a brief and identified five issues for determination:

“(i) By way of preliminary objection, whether the interlocutory appeal filed by Obi Eze on 5/4/94, against the decision of the lower court dated 9/6/93 (pursuant to the order of this Honourable Court given on 21/3/94) is not incompetent?.