Ifesinachi Mass Transit Limited V. Ogaga Ovrawah & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from the Judgment of the High Court of Justice sitting at Auchi in Edo State of Nigeria in Suit No: HAU/24/2011 – OGAGA OVRAWAH AND ANOR v.?IFESINACHI MASS TRANSIT COMPANY LIMITED delivered on 30/10/2012 wherein the Court gave Judgment in favour of the Respondents i.e. the Plaintiffs of the Lower Court.

Briefly, the facts of this case are that this suit was commenced at the Lower Court vide a writ of summons which was issued with the leave of the Court.

Pleading were duly exchanged by the parties and also amended.

By paragraph 10 of the amended statement of claim, the Plaintiffs (now Respondents) claimed jointly and severally against the Defendant (now Appellant) as follows:-

”(a) The sum of (N4,069,250.00) four million, sixty-nine thousand, two hundred and fifty Naira as special and general damages suffered by them as a result of the accident.

(b) The sum of (N5,000,000.00) five million Naira general damages for pains and emotional distress suffered by the 1st Plaintiff as a result of the said accident.”?

Hearing at the Lower Court commenced

on 25/1/2012 and it was concluded on behalf of the Respondents on 22/5/2012 after calling two witnesses. The defence by the Appellant was adjourned till 18/7/2012 with the consent of counsel for both parties.

On 18/7/2012, the Appellant was represented by counsel who informed the Court that he had been instructed that the 2nd Defendant would be in Court that day and he requested for a stand down which was granted by the Court.

At the end of that day, no 2nd Defendant turned up because actually there was no 2nd Defendant in this case. At the instance of Appellant?s counsel, the case was adjourned till 31/7/2012. And on 31/7/2012, the Appellant was not represented in Court and counsel for the Appellant was also absent. The Lower Court then ordered as follows: – ?From the antecedents of this case, it is obvious the defendant is not serious with the case. I think this is a proper case where the defendant should be foreclosed. Accordingly, I order the case of the defendant foreclosed. This order would only be reversed if the defendants officer deposes to an affidavit indicating a willingness to defend the case and pays N10,000.00 as costs to the

plaintiffs.?

The suit was then adjourned till 2/10/2012 for address. There is nothing on the record to show that the Appellant complied with the Order of the Court and he did not appeal against that order.

The counsel for the Respondents addressed the Court and Judgment was fixed for 30/10/2012.