Mrs. Wasem Agena & Anor V. Mr. James Katseen (1998)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A. 

In the High Court of Benue holden at Gboko, the plaintiff who is now the respondent filed an action against the appellants claiming the sum of N42,390.00 (Forty-two thousand, three hundred and ninety naira) as special and general damages for negligence. The respondent filed his statement of claim and the appellants also filed a joint statement of Defence. There were several adjournments and the appellants were absent on all occasions including the 25/9/92 when the respondent testified and called one witness and closed his case and the matter was then adjourned to 19/10/92 for address. The respondent’s counsel addressed the court on 19/10/92 after which the trial court on 7/1/93 delivered judgment in favour of the plaintiff/respondent in which he was awarded the sum of N33.390.00.

The appellants then applied to set aside the judgment and their application was dismissed on 16/9/93. Aggrieved by the decision, the appellants have now appealed to this court.

In the appellant’s briefs of argument, 2 issues are identified for the determination of the appeal and they read as follows:-

1. Was it proper for the learned trial Judge not to have set aside the judgment when there was no proof of service of the Hearing Notice on the defendants/appellants?
2. Whether the learned trial Judge, considering all the circumstances of the case, exercised his discretion judicially and judiciously in refusing the application to set aside the judgment obtained in default of appearance.

In the respondent’s brief of argument the respondent raised a preliminary objection and it states:-

NOTICE OF PRELIMINARY OBJECTION

The respondent at the hearing of the appeal intend to rely upon the following preliminary objection to ground (1) of the appellant’s grounds of appeal contained at page 59 to wit:

(1) That a Ground of Appeal cannot be both an “error in law” and a misdirection” at the same time as contained in Ground 1 of the said Ground of Appeal.

(2) The said Ground is vague, imprecise and in capable of comprehension.

(3) That by virtue of the authority of Nwadike v. Ibekwe (1987) 12SC. 14 at 55-57; (1987) 4 NWLR (Pt.67) 718 per Nnaemeke – Agu J.S.C. (as he then was) the ground is incompetent both in law and in fact.

The respondent thereupon urged this court to strike out the said ground of appeal as it is incompetent.

On a careful perusal at the case file, it is shown that on 9/5/96 that the appellants filed a motion on notice praying this court for leave to amend the Notice/Grounds of Appeal by deleting the words “and misdirected himself on the facts’ and that the motion was moved on 15/5/96 and it was granted on that day whereby appellants were given 7 days to file an amended Notice/Grounds of appeal. It further shows that the appellants filed an amended Notice of appeal on 21/5/96 which within the “seven days period” that the court allowed them to file an amended Notice of appeal.

The effect of this amendment is that the basis of the preliminary of objection has been knocked off and it has been overtaken by events.

Further, this amendment only deleted the words “and misdirected himself on the facts” it does not change or alter the nature of the Ground or appeal in any way and it also did not bring in any additional ground of appeal which will of course necessitate the filing of a new brief of argument. I am therefore of the view that the amended Notice of appeal has taken a good care of the situation and this being the case, the preliminary objection has nothing to sustain it and it is accordingly struck out.