Supol Chris & Anor. V. Igwe Gilbert Ononujju & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LADAN TSAMIYA, J.C.A.

This is an appeal against the decision of the Anambra State High Court (referred herein as the trial Court) sitting in Onitsha Judicial Division delivered 213/2006 in Suit No,0/256M/2005.

The back ground facts: From the record of this appeal, the 2nd – 4th applicants (in this appeal referred to as the 2nd – 4th respondents) filed a Motion experte on 23/8/2005, praying the trial Court for the following orders:

1. Leave to the applicants (2nd – 4th respondents) to enforce their fundamental rights by seeking the reliefs set out in their statement attached therein.
2. Permitting the grant of leave to stay of all actions of the respondents (1st respondent as well as the appellants respectively) against the applicants (2nd – 4th respondents) including harassing, arresting torturing and detaining the applicants or compulsorily acquiring the applicants’ farm/Estate.
3. For substituted service on the 2nd and 3rd respondents (appellants) in the following manner:

“By posting all the court’s processes in this suit to their respective offices at the Force Headquarters, Louis Edel House, Abuja, vide EMS Speed Post”

On 26/8/2005 the trial Court granted the prayers contained in the motion, and the matter was adjourned to 9/9/2005 for the substantive Motion on Notice to be heard.

After several adjournments “off record,” the trial court did not sit until 16th January 2006 when it took arguments from the 2006 4th respondents’ Counsel, is the absence of the appellants from the Court. During that sitting of 16/1/2006, the 2nd – 4th respondents’ Counsel however, moved their motion on notice and the Counsel to the 1st respondent replied. The appellants were absent and unrepresented.

Thereafter, the application was adjourned to 2/3/2006 for Judgment.

On the adjourned date of 2/3/2006, the trial Court delivered it’s judgment against the appellants and also found 1st appellant jointly liable in damages with the 1st respondent.

Being dis-satisfied with the said judgment, the appellants appealed to this Court on two grounds of appeal.

In accordance with the Rules of this Court, parties are to file and exchange their briefs of argument. In compliance, the appellants filed their joint appellants’ brief on 8/6/2006 within time, while after being served with the appellants’ brief of argument, the I” respondent file his own, on 5/7/2006 also within time. The 2nd – 4th respondent filed nothing. The appellants, on 16/5/2007,was granted leave to hear the appeal on the appellants, and 1st respondent’s briefs only since the 2nd – 4th respondents failed to file brief of argument.

On the day of hearing this appeal, i.e. 17/10/2007, both Counsel to the parties adopted their respective briefs, and all parties asked this Court to allow the appeal including I” respondent.

The issues which have emerged for consideration in this appeal based on the two grounds of appeal filed can now be staled thus:

1. Whether the learned trial Judge had the competence and jurisdiction to hear and determine this case when some of the parties were not served with the Court’s Processes in the Matter.
2. Whether the learned trial Judge was right to have proceeded to hear and determined this case with out ensuring for once that “hearing notice” was served on the appellants.

The 1st respondent also formulated reads:

Whether the trial Court was right to hear and determine this matter when all the parties were not properly before it and no hearing notices ever served on the appellants.