Omowood Industries Limited V. The Registered Trustees Of Bible Believers Fellowship Church & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ogun State delivered by, Hon. Justice E. O. Osinuga (J) of Abeokuta Judicial Division.

The Respondents’ claim, against the Appellant the sum of N5, 000,000.00 (Five Million Naira) each for the unlawful demolition and displacement of the Respondents from their properties situate at and known as Magboro-Akeran Village, Obafemi Owode Local Government, Ogun State by the Appellant.

Due to the failure of the Appellant to file a statement of defence in accordance with the Rules of court, a motion dated 23rd July, 2007 for summary Judgment was taken out by the Respondents as Claimants. The learned trial Judge granted the application and entered a summary Judgment against the Appellant, on their claim for general damages.

It is the contention of the Appellant that before the summary judgment was delivered, there were moves by the parties to resolve the matter amicably and which fact was brought to the attention of the court and the learned trial Judge acknowledged this fact by granting adjournments to that effect.

Appellant argues that the learned trial judge erred by not ordering for service of hearing notice and without taking evidence on the assessment of the Respondents’ claim for general damages before entertaining the said application.

Appellant submits 3 issues for determination and these are:-

1. Whether the lower court was right to have granted summary judgment on claims for general damages in favour of the Respondents without any evidence led of such claims.
2. Whether the provisions of Order 27 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 1987, on which the learned trial judge relied upon in granting the judgment did confer on the lower court power to grant summary/or default judgment in a claim for general damages without taking evidence from plaintiffs/Respondents.
3. Whether the learned trial judge possesses jurisdiction when he proceeded to deliver judgment against the Appellant without first ordering for the issuance and service of hearing notice on the Appellant for the hearing of the application for the summary judgment.

The learned counsel for the Respondent is of the opinion that this appeal can be determined on the following two issues:-

1. Whether or not the Appellant has established sufficient grounds on basis of which this Honourable court will interfere with the trial court judge’s discretion.
2. Whether or not the Appellant has established sufficient grounds on basis of which the judgment of the lower court may be set aside.

These two issues are just the two sides of the same coin.

After a careful perusal and pensive consideration of the decision of the learned trial Judge, grounds of appeal and the respective arguments of the learned counsel, I am of the humble opinion that this appeal can be determined on a sole issue.

The grounds of appeal without their particulars are as follows:-

GROUND ONE

The learned trial judge erred in law when he held that “Although the plaintiffs did not give evidence, however, considering that the Defendants have taken no step to defend the claim for general damages, I am convinced that the plaintiffs are entitled to some damages. However whether they are entitled to the sum of N5m is another issue. The plaintiffs led no evidence as to guide the court in assessing the general damages, thus I am entitled to exercise my discretion.”

GROUND TWO