Kayode Biobaku Ajuwon & 2 Ors V. Mr. A. A. Fashina (2007)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J.C.A.

The Appellants before us were the Defendants against whom the Respondent, being the Plaintiff, took out a Writ at the Ota Division of the Ogun State High Court on 26/1/1994. By his Writ and Amended Statement of Claim, the Respondent sought the lower court’s declaration on his entitlement to a right of occupancy over a piece of land situate at Ajuwon Village at Ifo Local Government Area of Ogun State. He also claimed the sum of N50,000:00k damages for trespass committed by the Appellants as well as injunction against the latter, their agents, servants, privies etc.

Pleadings were ordered, filed, exchanged and settled. On the 17/5/02, Appellants’ Counsel sought and obtained the trial court’s leave to withdraw his appearance for the Appellants. Thereafter, the Appellants neither attended trial to defend the matter themselves nor had such defence put in on their behalf by another Counsel. Respondent called four witnesses to prove his case.

The court accepted and relied on the only evidence before it, that led by the Respondent, and in its judgment dated 1/8/03 granted all the reliefs sought by the Plaintiff against the Defendants.

Being dissatisfied, the Defendants have appealed against the decision on a notice containing four grounds of appeal.

In the briefs of the parties to this appeal that had been filed, exchanged and adopted at the hearing, some issues have purportedly been distilled from the grounds of appeal. The five issues formulated in the Appellants’ Brief as having arisen for the determination of the appeal read as follows:-

“(i) Whether service of hearing notice on the Appellants former Counsel after the said Counsel had withdrawn his appearance for the Appellants at the trial is good and proper service on the Appellants.

(ii) Whether in the absence of the Appellants being represented by Counsel, the Hearing Notice ordered by the trial court ought to be served personally on the Appellants as ordered by the court below or on their former Counsel.

(iii) Whether it could be said that the Appellants were given fair hearing at the court below when the case was heard and proceedings conducted subsequent to the Hearing Notice served on Appellants’ former Counsel without the knowledge of the Appellants.

(iv) Whether the Learned Trial Judge was right in holding and treating the suit as undefended considering issues i, ii, and iii above.

(v) Whether the Learned Trial Judge was right in relying on and admitting Exhibit D in evidence in the face of glaring contradiction and without proper foundation “.

At page two of the Respondent’s brief, two Issues have been formulated. The issues read thus:-

“1. Whether the Defendants are right in contending that they were deprived of an opportunity of presenting their defence and thereby denied their constitutional rights to fair hearing.

2. Whether the Learned Trial Judge was right in relying on and admitting Exhibit D in Evidence”.

Given S.241 of the 1999 Constitution which created Appellants’ right of Appeal, we were constrained to and did request parties to the appeal to address us on the competence of the grounds of appeal as well as the validity of the notice of appeal on the basis of which the instant appeal was initiated and is being maintained.