Mr. Pius Iloka & Anor. V. Donatus Enemuo & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A., (Delivering the Leading Judgment)

This is an appeal by the appellants against the judgment of the Anambra State High Court sitting at Onitsha Judicial Division delivered on 16th March 2009 by V.N. Agbata J.

The facts that give rise to this appeal are stated thus:-

The Respondents as Plaintiffs in paragraph 21(1)(2) and (3) of their statement of claim claimed thus-

1. A declaration that the plaintiffs are the persons entitled to the statutory Right of Occupancy over the piece or parcel of land known as and called No. 7 Oduwano Street Fegge, Onitsha.
2. An immediate recovery of possession of the plaintiffs’ premises illegally occupied by the defendants
3. N5,000,000.00 damages for breach of the terms of a building agreement and the consequent trespass onto the said premises.

At the final close of trial on 8th October, 2008 written addresses were ordered, 45 days to the appellants and thereafter the plaintiffs/respondents shall file and serve within 21 days. The case was adjourned for adoption of written addresses to 17/12/08.

As at the 16/12/08 the defendants/appellants had not filed addresses, the plaintiffs had to file and serve theirs since the defendants/respondents failed to file their address and have not filed a motion for extension of time to enable them file same.

On 17/12/08, the matter was adjourned further to 27/1/09 for adoption. The court on 17/12/08 on its own without any application further extended time for the defendants/appellants to file and serve their final addresses by 14 days. The defendants/appellants did not file any written addresses. On 27/1/09, the respondents filed their written address dated and filed on 16/12/08. The defendants/appellants had nothing to urge the court and did not apply for any further extension of time to enable them file their written addresses’ On 27/2/09, one month after the plaintiffs/respondents had adopted their final addresses, and the court had adjourned for judgment, the defendants/appellants filed a written address out of time without a motion for enlargement of time to do so and without paying for complete penalties as prescribed by the High Court Rules. As at the time the court had adjourned for judgment on 16th March, 2009, judgment was delivered by the trial, dismissing the counter-claim of the appellants and entering judgment for the respondents’ claim.

The appellants, being dissatisfied with the said judgment appealed against same.

The appeal was taken on the 9/10/12. Counsel to the appellants’ Mr. V.C. Umeadi informed the court that the appellants’ brief of argument is dated 17/4/09 and filed same date that they also filed a Reply brief dated 6/6/09 and filed on 19/6/09, Counsel to the appellants adopted the two briefs and urged the court to allow the appeal. Counsel to the respondents Dr M.N. Umenweke informed the court that the respondents’ brief of argument is dated and filed on 19/5/09, Counsel adopt the brief of argument and urge the court to dismiss the appeal.

The Appellants from the two grounds of appeal formulated one issue for determination and the issue is stated thus:-

1. Whether the Defendants/Appellants could be said to have been given/afforded FAIR HEARING in accordance with the Provisions of Section 36(1) of the 1999 Constitution instead of the exclusion and/or non consideration of their Written Address albeit filed out of time but the which they paid the correct and appropriate penalty assessed by the Assistant Registrar of the Onitsha High Court in accordance with the Provision of Order 44 Rule 5 of the High Court (Civil procedure) Rules 2006 of Anambra State of Nigeria.

The respondents on their part formulated five issues for determination which are stated thus –

1. Whether the written address of the defendants/appellants filed out of time and without payment of complete penalties for late on 27/2/09 was proper before the court.
2. Whether the court should consider the written address of the defendants/appellants filed out of time without applying for extension/or enlargement of time when the court had adjourned for judgment.
3. Whether the court should consider the written address of the defendants/appellants when the defendants/appellants failed to pay complete penalty for their Final Address filed out of time.
4. Whether the defendants/appellants who waived their right of address when they filed their written address out of time without applying to the court for extension of time can properly turn around to complain of denial of fair hearing.
5. Whether the judgment of the trial court can be said to have been arrived at after a fair trial in view of failure by the learned trial judge to consider the Final Address of appellant filed out of time and not placed before the court.

The issues formulated by the respondents are more than the grounds of appeal, in the appeal at hand the grounds of appeal are two and the issues formulated by the respondents are five. It is settled law that issues for determination cannot be formulated to be more than the grounds of appeal.

The sole issue formulated by the appellants captured the essence of this appeal as such it is to be adopted in the determination of this appeal.

Learned Counsel to the appellants is challenging the whole decision of the lower court on the ground of violation of the Provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. That it is not in doubt that the Appellants filed their written address on the 27th day of February 2009 well out of time, by 20 days to the limit given by the lower court for the filing of the same.