Jerome Idiata & Ors V. Dr. Nkadi Okocha Ejeko (2004)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A

Suit No. 0/10/96 was initiated in the Ogwashi-Uku Division of the High Court of Delta State. Endorsed on the Writ issued on 17/1/96 is the plaintiff’s claim for!

(1) N3000.000.00 as special and general damages for assault and battery against the 3rd and 4th

defendants jointly and severally and

(2) N1, 700.000.10 as special and general damages for malicious prosecution against the four defendants jointly and severally.

The 3rd and 4th defendants entered appearance in the suit on 23/2/96 . On 22/3/96 the plaintiffs filed a motion to set down the case for hearing in default of appearance by the 1st and 2nd defendants. On 15/4/96 the plaintiff filed another motion, this time asking for enlargement of time to file his statement of claim, having run out of time. The statement of claim was subsequently filed on 7/5/96. On 19/6/96 the presiding Judge Awala J. made an order transferring the case from Ogwashi -Uku to Issele- Uku High Court for hearing and determination having disqualified himself from hearing the case. On 12/6/96 the plaintiff filed another motion in the suit still in Ogwashi-Uku even though the case was transferred to Isre- Uku Division on 19/6/96. The suit now has a new suit NO.HC1/10/i6/M2. In the motion the plaintiff/applicant asked for the following reliefs against the Defendants/Respondents “an order for judgment be entered for the plaintiff/ Applicant the Defendants/Respondents having failed neglected refused to file their statement of Defence the period having expired” In the records it would appear that the 1st mention of the suit now number HC1/10/96 before the Issele-Uku High Court was on 25/6/96. This was before Pemu J who adjourned same to 10/7/96 for mention. On 19/6/96 the Presiding judge Pemu J. set down the case for hearing in default of appearance by the 1st and 2nd defendants and adjourned same to 22/10/96 for hearing. On the same date 19/6/96 counsel for the plaintiffs withdrew the motion for judgment filed on 12/6/96. Even though the reason for the withdrawal was the motion for extension of time to file the statement of defence by the 3rd and 4th defendants the entire motion for judgment against the defendants was struck out having been withdraw. On 22/10/96 only the 1st and 2nd defendants were listed. The court heard argument from counsel for the plaintiff purportedly on the motion for judgment. The court made the following order.

“Order as prayed. Judgment is hereby entered for the plaintiff as per his Writ of summons dated 15th January 1966”

The 1st and 2nd defendants on 12/5/97 filed a motion on Notice asking for the following reliefs.

1. An order for leave to enter appearance in the suit out of time.
2. An Order deeming the proposed Notice of entry of appearance as properly filed and served.
3. An order to set aside the judgment delivered on 22/10/96 against the 1st and 2nd defendants.
4. An order to set aside the Writ of attachment dated 14th January 1997.
5. An order for extension of time to file the 1st and 2nd defendant statement of defence and
6. An order to deem the joint statement of defence of 1st and 2nd defendants as properly filed and served.

The motion was dismissed in its entirety on 6/8/98 with the court ordering that “the main case is adjourned to 24/9/98 for continuation being dissatisfied with, and having lost the motion to set aside, the judgment the 1st and 2n1 defendants now appellants, with the leave of court as they were out of the time, filed a Notice of appeal against the judgment of 22/10/96. The three grounds of appeal filed, short of their particulars, are hereunder reproduced.

GROUND 1. The learned judge erred in law and lacked jurisdiction to entertained this suit but went on to enter judgment in favour of the Respondents to wit. Judgment is hereby entered for the

plaintiffs as per his writ of summons dated 15th January, 1966.”

GROUND II. The learned trial judge erred in law when he entered judgment for the Respondent Ito wit: “Judgment is hereby entered for the plaintiff as per his writ of summons dated 15th January, 1996.”

GROUND III . The judgment is against the weight of evidence and has occasioned substantial miscarriage of justice.”

From the three grounds of appeal the appellants contrary to well settled legal principles, formulated four issues for determination.