Madam Nkoyo Nnanah V. Mr. Essien Usoro (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on the 24th day of November, 2010. The Appellant in this case substituted the former Appellant who was the defendant and counter-claimant in the trial court. The Respondent was the plaintiff and the claimed inter alia as follows:

“1. A declaration that the plaintiff is entitled to possession and statutory Right of Occupancy to the property situate and known as No.10A Bassey Street, Calabar, Cross River State which property is registered as No.77 in page 77 Volume 121 of the Register of Deed kept in the Lands Registry in the office of Calabar.

2. An order directing the defendant to vacate and deliver up physical possession of No.10A Bassey Street, Calabar, Cross River State being property of the plaintiff by virtue of transfer of ownership by a Deed of Assignment.
3. An order directing the refund of all rents amounting to N288,000.00 (two hundred and eighty-eight thousand Naira) per annum, purported or fraudulently collected from the plaintiff’s tenants at No.10A Bassey Street, Calabar, from the dote of conveyance till judgment is given.
4. An order of court restraining the defendant, her agents, privies, hirelings, legal representative or executors-in-title from further interfering with the plaintiff’s property of No.10A Bossey Street,

Calabar, Cross River State.

5. N10,000.00 (ten million naira) damages.
6. Cost of litigation assessed of N250,000.00 (two hundred and fifty thousand naira) only.”

The defendant filed her defence and her counterclaim and claimed as follows:

“1. A declaration that the defendant is entitled to the statutory right of occupancy over the property situate and known as No.10A Bassey Street, Calabar, Calabar South Local Government Area of Cross River State of Nigeria and wrongly registered by the plaintiff in the Lands Registry, Calabar as No.77 at page 77 in volume 121.

2. A declaration that the plaintiff is not entitled to lay claim to the defendant’s property situate and known as No.10A Bassey Street, Calabar as the purported Assignment of the property to plaintiff had been rescinded and the plaintiff collected port of the purchase price of the said property before the registration of Lands Registry, Calabar.
3. A declaration that the registration of the Deed of Assignment dated 10th day of July, 2005 concerning defendant’s property situate and known as No.10A Bassey Street , Calabar after the plaintiff had collected part of the alleged purchase price of the property is null and void and of no effect whatsoever.
4. An order canceling the registration of defendant’s property situate and known as No.10A Bassey Street, Calabar and registered of the Lands Registry, Calabar as No.77 of page 77 in volume 121.
5. N20 million damages.
6. A perpetual injunction restraining the plaintiff, his servants, agents, workmen or privies from trespassing, interfering or entering the property or parading or holding up himself as the owner of the said property situate and known as No.10A Bassey Street, Calabar or doing any other thing inconsistent with the defendant’s right of ownership of the property.”

At the close of pleadings the trial commenced with the plaintiff/Respondent giving evidence as Pw1 and calling one other witness as Pw2. The Defendant/Appellant applied for a date for her defence. She was accordingly granted 4 days for her defence, 30th, 31st March and 1st and 2nd April, 2009. On those days scheduled for the defence, the defendant/Appellant and her counsel were absent in court. On the 1st April, 2009, the Respondent’s counsel applied to file his address. His application was granted. He then filed and served the Appellant’s counsel. The Appellant’s counsel failed to come to court on 25th day of June, 2009 when the address was adopted and the court adjourned to 6th day of August, 2009 for judgment. On 4th day of August, 2009, the Appellant counsel filed a motion for extension of time for the defence to file her written deposition on oath and that of her witnesses after over 6 months the plaintiff/Respondent closed his case. The learned trial Judge refused the application and went ahead to deliver his considered judgment, the application sought to arrest. The trial Judge gave judgment to the plaintiff/Respondent hence this appeal.

The Appellant being dissatisfied filed her notice and four grounds of appeal. The Appellant filed her Appellant’s brief on 16th day of January, 2013 and articulated three issues for determination as follows:

“1. Whether the High Court of Justice, Calabar exercised its discretion judicially and judiciously in dismissing appellant’s application for extension of time to file her written deposition and those of her witnesses in line with the provisions of the Cross River State (Civil Procedure) Rules, 2008 and in view of the appellant’s in-health which prevented her from opening her defence on the dates appointed for that and by the court proceeding for judgment in the suit thereafter.

2. Whether the judgment of the High Court of Justice, Calabar delivered in Suit No.HC/428/2007 on 24/11/2010 is not judgment in default of appellant presenting her defence due to her ill-heath which led to her eventual death and also should the judgment not be set aside having regards to the facts and circumstances of the case.
3. Whether the appellant was given a fair hearing to prove her counter-claim when she partly recovered from her sickness and approached the court to allow her defend and prove her counter-claim before same was dismissed without a hearing before the judgment was delivered.”

The respondent filed his own brief on 1st February, 2013 and also articulated three issues from the grounds of appeal. The issues are as follows:

ISSUE 1

Whether the Appellant was denied fair hearing considering the fact that the four (4) days her counsel applied for to open defence were granted without reservation and were utilized, without excuse or explanation court.

ISSUE 2

Whether the Appellant was given opportunity to prove her counter-claim.