Prince Nnamdi E. Ubah V. Chief Innocent Okafor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

Through the Writ of summons filed with the Statement of Claim on 6/12/2007, the respondent in this appeal commenced Suit No. HID/147/2007 at Idemili Judicial Division of the High Court of Anambra State, sitting at Ogidi for the reliefs averred in paragraph 11 of the Statement of Claim as follows:-

a. Declaration that the plaintiff is, subject to the Land Use Act, 1978, the owner in possession of the piece and parcel of land known as Ogbonmee land and situate at Obosi in Obosi now in dispute and is therefore entitled to the grant of Building Certificate of Occupancy (Statutory) over same.

b. N100,000.00 (One Hundred Thousand Naira) damages for trespass.

c. Perpetual injunction restraining the defendant, his servants, agents, privies, workers or persons taking instruction from him from trespassing or further trespassing into the plaintiff’s land now in dispute or in any manner whatsoever interfere with the possessory rights of the plaintiff.

The statement on Oath of the plaintiff as the listed witness was also filed with the claim.

The originating processes were served on the appellant who was the defendant while the respondent subsequently filed forms 17 and 18 at the trial court for pre-trial conference to which the appellant did not file answers. At the proceedings of 16/7/2008, the learned trial judge entered judgment in favour of the respondent as per his claim upon oral application by the learned Counsel for the respondent for failure to file pre-trial conference papers.

The appellant filed a motion on notice on 22/7/2008 for the order of the trial court setting aside the judgment entered against him on 16/7/08 in default of filing pre-trial conference information forms, and that court after hearing arguments of the learned Counsel for the parties dismissed the application in the ruling delivered on 27/2/2009.

Being dissatisfied with the ruling, the appellant commenced the instant appeal by filing the Notice of Appeal on 27/2/09 with three grounds of appeal, and in pursuance of the appeal, the Appellants Brief settled by Chugobo Enwezor Esq. of Counsel was filed on 24/8/09 but deemed properly filed on 12/1/10. In response thereto, the Respondent’s Brief prepared by C.N. Ofodum Esq. the learned Counsel for the respondent was filed on 3/2/10.

In the Appellant’s Brief. The following two issues were formulated for the determination of the appeal, and argued by the learned Counsel.

1. Whether the learned trial judge was right in law and or exercised his discretion judicially and judiciously when he solely relied on Order 20 Rules 9 and 12 of the High Court of Anambra State (Civil Procedure) rules 2006 to dismiss an application to set aside judgment entered under Order 25 Rule 6 (b) of the same rules? Grounds 1 and 2.

2. Whether in a claim for declaration of title over land the learned trial judge was right in granting default judgment without any evidence by the respondent in support of the declaration sought? Ground 3.

Without expressly stating so, the respondent adopted the above two issues for determination and the learned Counsel also proffered arguments thereon.

On the first issue, the learned Counsel for the appellant contended that though the appellant and his Counsel were in court on 16/7/08, the learned trial judge peremptorily entered judgment for the respondent, without calling for any response by the appellant to the oral application for judgment made pursuant to Order 25 Rule 6 (b).