Isah Saidu & Ors V. Sadiq Mahmood (1997)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The respondent was the plaintiff before the lower court where he brought a claim for damages in defamation against the appellants as the defendants. He also sought against the appellants an injunction to restrain them from further publishing the alleged defamatory statement of or concerning him.

The case was heard by Ozoh J. of the Bauchi State High Court. On 23/1/91, the trial judge awarded N250, 000.00 as damages against the appellants jointly and severally. The appellants have brought this appeal against the said judgment on two grounds of appeal which read:

“(1) The learned trial Judge erred in law by entering judgment for the plaintiff without notification of the said judgment to the defendants as provided for by order 40 rules 2 and 3 of the Bauchi State High Court Rules.

Particulars of Error

(a) Contrary to Order 40, Rules 2 and 3 of the Bauchi State High Court Civil Procedure Rules, 1987, the court fail (sic) to serve a notice to attend and hear judgment to the defendant when it reserved judgment on the 11th day of December, 1990.

(b) The trial court was wrong when its (sic) held “Failure of the defendant to proffer any evidence to court to buttress their averments has the same effect as abandonment.

(c) Had the Honourable Court satisfied itself by applying order 40 rules 2 and 3, it would not have come to this conclusion particularly as he was satisfied that the appellants filed a defence.

(2) The learned trial Judge erred in law when he did not issue hearing notices to the appellants who were not in court before conducting the proceedings to finality and giving judgment against the appellants then defendants.

Particulars

(a) The appellants had filed their statement of defence when they became aware of the suit.

(b) A date was set for hearing on which the appellants were not opportuned to be present in court or represented by counsel.

(c) The learned trial Judge proceeded to hear the evidence of respondent witnesses and adjourned the case to some other days without serving hearing notices to the appellants.

(d) Judgment was given based on the evidence of the respondent’s witnesses which the appellants had no opportunity to challenge.”