Queen Omabuwa V. Madam Martha Owhofatsho & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

This is an appeal against the Ruling/Final Decision of Bazunu, J., of the High Court of Justice, Warri, Delta State, in a Land matter wherein the Appellant as Defendant was absent throughout the hearing till Judgment was delivered on the 25th of November 1993. This appeal arose from the trial Court’s refusal to set aside the default Judgment entered in favour of the Respondents as Plaintiffs, who were granted – a Declaration that they are entitled to the “piece of parcel of land lying and situate at Rubber Plantation Layout, Agbassa – Warri, Warri Local Government Area, etc” and, – a Perpetual Injunction restraining the Appellant, her servants, her agents, etc., entering/remaining/interfering/ or in any way dealing with Plaintiff’s peaceable possession of the said piece of land.

To better understand the issues at stake in this appeal, it is necessary, in my view, to set out the proceedings in the lower Court that led to this appeal –

i. The Respondents filed their Statement of Claim out of time with the leave of Court on the 2nd of October 1990.

ii. On the 28th of February 1991, the Appellant as Defendant was granted an extension of 7 days from that day to file her Statement of Defence and Plan, which she filed on 6th of March 1991.

iii. On the 5th of November 1991, Counsel for the Plaintiffs applied to have the case “set down for hearing since pleadings have been fully exchanged”. The application was submitted to the learned trial Judge “for fixture, please”, and he minuted thereon – “Please fix for 10/12/91”.

iv. On the 10th of December 1991, the matter was “adjourned to 7/2/92 for hearing”, because parties were absent.

v. On the 7th of February 1992, the Defendant was absent and the matter was “adjourned to 2/3/92 for hearing”, on the application of the Plaintiffs’ counsel.

vi. On the 2nd of March 1992/ the Defendant was absent, but hearing commenced with the testimony of the 2nd Plaintiff as PW1, and the matter was “adjourned to the 20/3/92 for further hearing”.

vii. On the 20th of March 1992/ the 2nd Plaintiff was present; the Defendant was absent; PW2 testified; the Plaintiffs closed their case; the Plaintiffs’ counsel addressed the Court; and the case was “adjourned to 30/4/92 for Judgment”.

viii. On the 30th of April 1992, there is no record of the parties present but the learned trial Judge delivered Judgment wherein he held as follows –

“The Defendant was duly served with the writ of summons and thereafter entered an appearance to the writ. Pleadings were then filed and exchanged. Each party filed a party survey plan. When the case came up for hearing, the 2nd Plaintiff and his counsel were present while the Defendant and her counsel were absent in Court. The 2nd Plaintiff then led evidence in proof of their case and called one witness, the Surveyor. —It was stated earlier in this Judgment that both the Defendant and his (sic) counsel were not in Court when the Plaintiffs led evidence to prove their case, even though she filed a Statement of Defence and plan. I shall therefore ignore the Statement of Defence of the Defendant as no evidence has been adduced to prove it. —The sum total of the foregoing is that as the evidence of the Plaintiffs is not controverted in any way, I hold that the Plaintiffs have proved their case against the Defendant on the preponderance of evidence and are therefore entitled to the reliefs claimed”.

1. On the 4h of August 1992/ the Plaintiffs applied for a Writ of Execution against the Defendant, and the Warrant for Possession of Premises was duly signed by the learned trial Judge.
2. The Certificate of Execution of Warrant of Possession is dated 14th of September 1992 and on the 18th of September 1992, the Defendant’s counsel filed a Motion on Notice dated 17th September 1992 praying for the following-

(1) Extension of time within which to apply for an Order setting aside the Judgment by default delivered on 30/4/92 in respect of this matter.

(2) An Order setting aside the said Judgment by default delivered on 30/4/92 in respect of this matter.