Leader Olumba Olumba Obu (Roland Obu) V. Etinyin Ededem Archibong (1) (For Himself And On Behalf Of The Family Bassey Archibong Edem) (2009)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Endorsed on the Writ of Summons Issued at the Registry of the High Court of Cross River State, Calabar Judicial Division on 27/1/04 are the Plaintiff’s claims against the Defendant:

“1. A declaration that the failure of the defendant to honour or keep a term of the agreement as contained in the Agreement entered into between the plaintiff and the defendant (as to the payment of Annual Royalty to the Plaintiff) voids the said contract.

2. Perpetual Injunction restraining the defendant, his agent servants and privies from using the said land inconsistent with right of the plaintiffs.
3. Alternatively, a declaration that the plaintiff is entitled to the sum of N1, 000, 000.00 as Annual Royalty and reviewable by the plaintiff.”

The Plaintiff filed his Statement of Claim along with writ on 27/1/04. On 1/4/04

Uke, J. who presided ordered substituted service of court processes in the suit on the defendant. The defendant entered appearance on 9/6/04. When the order for substituted service was made on 1/4/04 the suit was adjourned to 19/4/04 for mention.

In view of the brevity of the entire proceeding (One page proceeding) leading to the judgment of the trial court I deem it necessary to set out the various dates the case came up, with appearances and orders made by the trial court on each date.

One 13/2/04, parties were absent and no indication that the defendant was represented by counsel. The case was adjourned to 20/2/04 for mention and the trial court ordered that the defendant be put on notice but it did not come up again till 5/3/04. Again parties were absent and there was no representation for the, defendant. It was adjourned to 1/4/04 for mention once more. On 1/4/04 the ex parte motion for substituted service was taken and granted and the suit was adjourned to 19/4/04 for mention. The next date was 10/5/04. Parties were absent and defendant was not represented. The case was adjourned to 9/06/04 for mention and the record signed by one “Sarah Nkono – c/et”. On each 9/6/04 and 15/7/04 the matter came up for mention, parties were absent and the defendant was not represented by counsel. The matter was adjourned for mention and the record signed by “Sarah Nkono – c/et”.

On 5/8/04 the Plaintiff was in court but the defendant was absent and was not represented by counsel. Uke, J. presiding adjourned to 14/10/04 for hearing. The matter come up again on 25/11/04 on which date the plaintiff was in court and as usual the defendant was absent and not represented by counsel. The court adjourned the case to 8/12/04 for plaintiff to prove his case. On 14/1/05 the Plaintiff was in court, the defendant was neither present nor represented by counsel. The plaintiff on record testified as PW 1 rested his case and the court below adjourned to 18/01/2005 for judgment.

Predictably the lower court in its judgment delivered on 18/1/05 entered judgment for, and granted all the reliefs claimed by, the plaintiff.

Aggrieved by the judgment, the defendant (now Appellant) pursuant to leave granted him on 16/3/06 filed a notice containing four grounds of appeal on 16/3/06. Five additional grounds were filed with leave on court on 30/4/08 bringing the number to 9. In the Amended Appellant’s Brief of Argument filed on

30/4/08, the appellant distilled three issues from his nine grounds of appeal:

2.1. WHETHER proceedings of 10/5/04 and all subsequent proceedings particularly those of 14/1/05 upon which the judgment of 18/1/05 have (sic) predicated, including the aforesaid judgment are not vitiated for being in breach of the rules of fair hearing?

2.2. WHETHER or not there was evidence on record to establish the representative capacity upon which Respondent prosecuted his action, and if there was none whether respondent in his personal capacity has the standing to maintain his suit.

2.3. WHETHER having regard to the evidence/materials before the court below, the court was justified in granting respondent the declaration and injunctive reliefs sought?