G.O.C. Onuegbu V. Veronica N. Okafor (2003)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

This is an appeal against the judgment of the High Court of Justice of Anambra State sitting at Ogidi and delivered by Izuako J, on 3-7-2001. The respondent in this appeal was the plaintiff at the trial court and had instituted an action through her Attorney against the appellant who was the defendant in that court and claimed by paragraph 7 of her statement of claim the following reJiefs:-

“7, WHEREFORE the plaintiff claims from the defendants as follows:-

(1.) Possession of the said three (3) flats of three bed rooms and parlour and a warehouse and premises with the appurtenances situate at No, 2 Ezeigwe Street, Nkpor-Agu,

(2.) N33,000 being arrears of rent for the months of September, 1998 to February, 1999 at the rate of N5,500 per month made up as follows:- N1,500 per flat per month, N1,000 for the warehouse per month,

(3.) Mesne profits at the rate of N5,500 per month from March, 1999 until possession is delivered to the Plaintiff.”

After the exchange of pleadings between the parties the case came up for hearing before the trial court on 21-9-99 when the plaintiffs first witness testified. A total of 3 witnesses in all gave evidence in support of the case of the plaintiff who closed her case on 9-12-99 and the case was adjourned to 7-2-2000 for defence.

On the adjourned date, both parties were present and duly represented by counsel when the defendant opened his defence by testifying in chief. However, while being led in evidence by his learned counsel, the defendant ran into difficulties regarding the tendering of certain documents in evidence. Consequently an adjournment was granted to the defendant in order to put his house in order. The case was therefore adjourned to 6-4-2000 for hearing. On that date however, neither the defendant nor his learned counsel was in court. The trial court therefore adjourned the case to 1-6-2000 for further hearing and awarded N500.00 costs to the plaintiff who was duly represented by counsel on that date. For undisclosed reasons, the trial court did not sit on 1-6-2000 but the case came up before that court on 3-10-2000 when the defendant and his counsel were again absent while the plaintiff was duly represented by counsel. The case was again adjourned by the trial court to 8-11-2000 for defence. Meanwhile by a motion on notice dated 24-10-2000, and filed at the court below on 25- 10-2000, the defendant sought for an order for leave to amend the statement of defence marked Exhibit ‘A’ to the affidavit in support of the motion as duly filed and served. That motion was also fixed for hearing on 8-11-2000, the same date to which the case was earlier adjourned for defence.

Although both parties were in court on 8-11-2000 and both were duly represented by their learned counsel, for reasons which are not apparent on the face of the record, the learned trial judge did not hear the defendant’s motion to amend his statement of defence fixed for hearing that date, which was also a date earlier fixed for the continuation of the defence, but further adjourned the case again to 6-12-2000 for hearing. On that date despite the fact that both parties were duly represented by counsel, learned counsel to the defendant had told the court that he had filed a motion to amend the statement of defence and filed a counter claim, on his own application the matter was again adjourned to 16-1-2001 for hearing. Again the defendant’s motion to amend the statement of defence and file a counter claim and the substantive case were not heard on this date because the defendant who was in court in person had told the court that there were moves to settle the case out of court. On the confirmation of this move by the learned counsel to the plaintiff, the trial court adjourned the matter to 7-2-2001 for report of settlement.

However, on 7-2-2001, there was no report of settlement as learned counsel to the plaintiff had reported to the court that the defendant had refused settlement and had also refused to give up possession. Again in spite of the fact that both parties were duly represented by counsel on that date, the pending motion filed by the defendant was not moved and on the application of the defendant’s counsel the matter was again adjourned to (sic) 5-4-2000 for hearing. When the matter came up before the trial court on 5-4-2001 to which date the matter was actually adjourned, neither the defendant nor his counsel was in court. The learned trial judge instead of striking out the pending motion filed by the defendant for want of prosecution before proceeding with the substantive case, decided to ignore the motion and proceeded to close the case of the defendant and adjourned the case to 24-5-2001 for address by the plaintiffs counsel. Although on that date a counsel one Obi-Okoye appeared for the defendant/applicant in the substantive case and the pending motion, yet the learned trial judge decided to ignore the pending motion and proceeded to hear the address by the plaintiff’s counsel in the substantive case. At the end of this address, the learned trial judge asked the learned counsel to the defendant to address the court but he declined to do so, telling the court that he was in court to move the defendant’s motion for amendment. There and then, the learned trial judge, fully aware of the pending motion filed by the defendant for leave to amend his statement of defence and file a counter claim and adjourned the case to 3-7-2001 for judgment.

Meanwhile the learned counsel to the defendant had filed a motion on notice dated 5-6-2001 on the same date at the lower court praying for an order arresting the judgment reserved and an order granting leave to the defendant/applicant to open his defence and address the court. Although the substantive case was adjourned to 3-7-2001 for the delivery of the judgment the motion was seeking to arrest, the motion was for undisclosed reasons fixed for hearing on 27-9-2001, well after the date of 3-7-2001 when the judgment, the subject matter of the application shall have been delivered.

Thus, in spite of being fully aware of the pending motions filed by the defendant for the amendment of the statement of defence and for an order arresting the judgment of the trial court, the learned trial judge proceeded and delivered her judgment in the substantive case finding for the plaintiff against the defendant on 3-7-2001. It is against this judgment that the defendant had decided to appeal to this court. The notice of appeal dated 4-7-2001 was filed on 5-7-2001.

In accordance with the rules of this court, briefs of argument were duly filed and served between the parties and this court. The defendant who shall henceforth in this judgment be referred to as the appellant, had filed his appellant’s brief of argument on 5-11-2001 in which he had identified the following issues for the determination of the appeal:-

“(a) Whether it was proper for the learned trial judge to adjourn the matter for judgment to 3-7-2001 when the motion for Amendment and leave to file counter claim was pending before the lower court.