Mrs Olorunshola Grace & Ors V. Omolola Hospital & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

The respondents as plaintiffs took out a writ of summons against the appellants as defendants of the High Court of Kwara State (court below) in suit number KWS/174/2011 seeking for the following reliefs:

(a) A declaration that the claimants are the lawful and bona fide owners of the large expanse of land totaling 48 plots of the back of Ministry of Agriculture Ilorin.

(b) A declaration that the claimants are validly entitled to the occupation and possession of the large expanse of land totaling 48 plots at the back of the Ministry of Agriculture Gbagba area Ilorin.

(c) A declaration that the entry of the defendants and their agents and privies on the claimants land without their consent amount to trespass.

(d) An order of this Hon Court compelling the defendants and their agents to remove their illegal structures from the claimant’s land.

(e) The sum of Two Million Naira Only (N2,000,000.00) being general damages for trespass committed by the defendants on the said land.

(f) An order of perpetual injunction restraining the defendants, their agents, servants and privies or whatsoever from committing further acts of trespass on the said piece of land.

(g) Cost of this suit.

The learned trial judge relied on the provision of Order 17 Rule 5 of the Kwara State High Court (Civil Procedure) Rules 2005 and granted all the reliefs in default of defence as no statement of defence was filed by the appellants. The appellant was afflicted by the default judgment delivered by Folayan, J on 17th May 2012 and in a state of sulky dissatisfaction proceeded to file a notice of appeal on 1st August 2012 premised on the following three grounds:

1. The trial court erred and misdirected itself in law when it held that;

“It is observed that throughout the trial the defendants, except the 7th and 9th who appeared on 19/1/12, have refused or neglected to come to court or file any paper. There is no doubt that the defendants have no interest in defending this suit and by the provision of Order 29 Rule 5 this court is permitted to enter judgment in favour of the claimant… ”

2. The trial court erred in law when it held thus;

“… in the circumstance of this case (sic) this court has no other option than to invoke the provisions of Order 17 and Order 29 Rule 5 of the Rules of this Court. I hereby so enter judgment in favour of the claimants as per their claims in the statement of claim against the defendants. ”

3. The judgment is against the weight of evidence.

Both learned counsel were on common ground in narrowing down the three grounds of appeal to the following two issues for determination:

1. Whether declaratory reliefs can be granted in default of appearance or in default of defence/pleading without oral evidence.
2. Whether the invocation of Order 17 and Order 29 Rule 5 of the Kwara State High Court (Civil Procedure) Rules 2005 by the trial court does not run counter to the decisions of the Supreme Court in Maja v Samouris (2002) 3 SCNJ 29 at 44 – 45 paras. 35 – 10 and Bello v Eweka (1981) 1 S.C 101.

The two issues may conveniently be taken together as they both have a common denominator: whether it is proper for a court of justice to grant declaratory reliefs without hearing evidence.