Mr. Joseph Ogbeshe V. Chief Sylvanus Idam (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High court of Justice, Ogoja Judicial Division, Cross River State delivered on Monday, 2nd day of July, 2007 by His Lordship, Michael Edem, J., wherein judgment was entered in favour of the Respondent against the appellant in a dispute over land at page 50 fines 21 to page 51 lines 1-9 of the printed record as follows:

“Wherefore I enter judgment for the plaintiff as follows:

1. I declare that the piece of parcel of land lying situate along Okendi Road, Ogboja Ogoja and bounded on the North by Federal Science College fence, South by the land of Mr. Ipuole Udey; East by Mr. Boniface Ellah and West by Mr. Okoh Young and more particularly delineated by beacon stone numbers CRN78408, CRN 78409, CRN 784010 and CRN 784011 was duly leased to the plaintiff by the Ogboja community.
2. AN ORDER of perpetual injunction lies restraining the Defendant, his agent, servants, or privies from further trespassing on the said land.
3. I assess and award the sum of N250,000.00 as general damages for trespass.
4. Cost of N5,000.00 in favour of the plaintiff.

This is my judgment.”

Being aggrieved the appellant filed his Notice of Appeal on 25th day of November, 2008 pursuant to an order of this Court made by way of extension of time on Monday, 13th day of November, 2008. Four grounds accompanied the Notice of Appeal. The Appellant’s brief was filed out of time on 28th day of February, 2012. Leave was granted that the brief shall be deemed properly filed and served on 21st May, 2012. Learned counsel to the Appellant identified two issues for determination:

“(i) whether the failure of the learned trial Judge in dispensing with the appellant’s motion to file his statement of defence and other processes out of time and the failure to issue hearing notice on the appellant before proceeding to deliver judgment has not occasioned a substantial miscarriage of justice and a denial of the appellant of his right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria?

(ii) Whether the failure of learned trial Judge to properly evaluate the evidence before him in a land matter before coming to judgment has not occasioned a miscarriage of justice?”

The Respondent’s brief filed on 18th day of October, 2012 was deemed properly filed and served on the appellant on 8th November, 2012. The Respondent’s learned Counsel identified the following issues for determination:

“1. Whether in view of the conduct of the appellant after being served with the writ of summons up to the delivery of judgment, it can be said that his right to fair hearing was breached?

(2) Whether there was a proper evaluation of the evidence conducted.”

When the appeal came up for hearing on 7th day of February, 2013 each Counsel adopted his client’s brief of argument. Before proceeding I shall set out the facts that have led to this appeal. The Respondent took out a writ of summons on the 19th day of June, 2000 seeking the following declaratory relief against the appellant:

“12. The defendant is still adamant and claims to have a right over the land leased to the plaintiff by the community.

WHEREOF the plaintiff claims against the defendant as follows:

(1) A DECLARATION that the piece or parcel of land lying and situate along Okendi Road, Ogboja, Ogoja and bounded on the North by Federal Science College fence, South by the land of Mr. Ipuole Udey; East by Mr. Boniface Ellah; and West by Mr. Okoh Young and more particularly delineated by beacon stone numbers CRN 78408, CRN 78409, CRN 784010 and CRN 784011 was duly leased to the plaintiff by the Ogboja Community.