Mr. Onigha Ogar Onah V. Chief (Sir) Linus E. Okom (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This is a double barrel appeal with one of the barrels firing blanks as we shall see anon. The respondent as plaintiff commenced proceedings against the then defendants jointly and severally in the High Court of Cross River State, Ogoja Judicial Division, claiming declaration that he is entitled to exclusive possession, use and quiet enjoyment of the land in dispute and perpetual injunctive order of restraint, inclusive of N10 Million as general damages for trespass and ‘-” sundry costs. The suit was numbered/registered as Suit No.HJ/68/2001. The learned trial judge, Michael Edem, J. delivered his judgment thereon on 26th July, 2007 and ruling in respect of a motion to set aside the said judgment on 26th November, 2007.

The facts of the case are as follows: The respondent as plaintiff in the court below filed his writ of summons on 23rd July, 2001 and his statement of claim on 14s January, 2002. The reliefs claimed against the then defendang are reproduced below:

“WHEREOF THE PLAINTIFF claims the following Reliefs against the Defendants jointly and severally:-

1. A DECLARATION that the Plaintiff is entitled to the exclusive possession as well as the use and quiet enjoyment of all that piece of landed property lying and situate at Obudu/Katsina Ala Junction, Abuochiche, Bekwarra Local Government Area which land is covered by Certificate of Occupancy No.OG/308/86 dated 2/01/87 and more particularly described and delineated on Survey Plan No. EP/CR.2848 of 4/3/78.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their agents, privies and heirs from entering unto or trespassing or interfering in any manner howsoever with the Plaintiffs aforestated land
3. The sum of N10 Million General Damages for trespass and interference with the plaintiff’s land.

SPECIAL DAMAGES

The sum of N250,000.00 being Solicitors’ cost of this action.”

The defendants were duly served with the writ of summons and statement of claim. On 14th January, 2002, the learned counsel for the defendants informed the trial court that moves to settle the matter amicably, “has broken down.” He then asked for sixty days within which to file their statement of defence. (P.31 of the record) Again, on 18th March, 2002, the learned counsel for the defendants, “urged the Court for a date to regularize matters” as the defendants were yet to file their statement of defence. Similarly, on 2nd December, 2003, the learned counsel for the defendants informed the trial court that, “the statement of defence will soon be filed.” (Pp. 32 & 33 of the record)

On 18th May, 2004, the learned counsel for the defendants, S. E. Adie Esq. sought to withdraw his appearance for the defendants and his application was granted. Inexplicably, on 14th February, 2005, the same learned counsel announced appearance for the defendants and at his instance, the plaintiff’s case was dismissed by the trial court “for want of diligent prosecution and/or abandonment”‘ (Pp. 34 & 35 of the record) Howbeit, on 8th March, 2007, the suit was relisted and adjourned with consent of learned counsel for the parties to 27th March, 2007 for mention, with an award of N1,000.00 costs in favour of the defendants. (P. 7 of the record) For reasons not stated in the record” the trial court did not sit on 27/03/2007 . The suit came up on 7th June, 2007 and it was adjourned with consent of learned counsel for the parties to 20th June, 2007 for mention. Again, the record of appeal did not disclose what happened on 20/06/2007. However, on 18th July, 2007, when the suit came up before the trial court, it was adjourned with consent of both learned counsel for the parties to 23rd July, 2007 for hearing. The learned trial judge then added that, “fresh hearing notice to defendants .” (P.8 of the record)

On 23rd July, 2007, both the defendants and their learned counsel were absent in court without excusing ‘their absence. Upon due application made by the learned counsel for the plaintiff, the case was heard, whereat the plaintiff testified as PW1 and tendered some documentary exhibits. At the close of plaintiffs case, learned counsel for the plaintiff informed the trial court, that the defendants are yet to file their statement of defence. He then applied for a date for judgment. The matter was then adjourned to 26th July, 2007 for judgment. (Pp. 9 – 11 of the record) The judgment was accordingly delivered on the said adjournment date. The trial court granted the reliefs sought by the plaintiff. (pp. 13 – 19 of the record).

On 30th July, 2007, the defendants applied to the trial court by way of motion on notice, to set aside the judgment in question. An affidavit with various exhibits annexed thereto was filed in support of the said motion. The plaintiff in opposition filed a counter – affidavit with an exhibit annexed therewith. (Pp. 20 – 46 of the record) The motion was duly heard, argued, taken and dismissed by the trial court in its ruling which was delivered on 26th November, 2007.

The defendant upon being dissatisfied, brought applications to this Court for extension of time within which to appeal and the same were granted on 20th October, 2008. Subsequently, the defendant filed his notices of appeal on 22nd October, 2008, against both the judgment and ruling on the refusal of the trial court to set aside its judgment. The notices of appeal contained two grounds of appeal and three grounds of appeal respectively. Henceforth in this judgment, the defendant will be referred to as the appellant, while the plaintiff will be called the respondent. On 17th May, 2010, this Court granted leave to the appellant to file and argue four additional grounds of appeal in respect of the notice of appeal against the judgment of the trial court which was delivered on 26th July, 2007.

It is noteworthy, that in the appellant’s amended brief of argument prepared by Matthew Ojua Esq. and filed on 12th January, 2010, it was stated therein that:

“Two notices of appeal are included in the record of proceedings. This appeal shall however be based only the notice- of appeal against the default judgment of 26/7/07 filed on 22/10/08.” (sic)

The learned counsel for the respondent in his brief settled/prepared by Mba E. Ukweni Esq. and deemed filed with leaven of this Court granted on 28th October, 2009, it was urged upon us, to dismiss the appeal against the trial court’s refusal to set aside the judgment in question, on the ground that it has been abandoned and or for want of prosecution. Reliance was placed on Order 17 Rule 10 of the Court of Appeal Rules, 2007 and the case of N. N. B. Plc. v. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549/576 – 577. On this contention by the respondent’s counsel that the appeal against the trial court’s ruling delivered on 26th November, 2007 be dismissed under the requisite rules of this Court, it was submitted by the learned counsel for the appellant in appellant’s reply brief which was deemed filed with leave of this Court granted on 11th May, 2010, that the appeal before this Court is the one “against the judgment of 26th July, 2007″, while the appeal against the trial court’s refusal to set aside its judgment in question, as stated in the trial court’s ruling delivered on 26th November, 2007,” is not before the Court. According to him, the “Court can therefore not strike out what is not before it,” To my mind and without belabouring the point, an interlocutory appeal and a substantive appeal in the same matter, for the sake of tidiness, doing the needful and expeditious disposal of appeal matters, ought to and should be taken together. This is more so, when whatever be the fate of the substantive appeal, can be conveniently subsumed or accommodated under whatever could have been the outcome of the interlocutory appeal. Thus, where as in the instant case, this has not been done and going by the standpoint of the appellant quoted above, it can be safely deduced that the appellant has abandoned the said appeal and the same is accordingly dismissed.