Violet N. Thave V. The Director General/permanent Secretary Bureau Of Land & Surveys Makurdi Benue State & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Benue State High Court sitting at Makurdi by Honourable Justice Ejembi Eko in suit No. MHC/89/99, delivered on the 13th day of October, 2000, wherein he dismissed appellant’s suit under the provisions of Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988 for failure of appellant to appear to open her case.

Dissatisfied with the ruling of the Court, the appellant filed a Notice of Appeal on the 27th day of September, 2007, containing 4 Grounds of Appeal. With leave of court the appellant on 27th day of September, 2007, filed 3 additional Grounds of Appeal, bringing the total Grounds of Appeal filed to 7. The appellant by a writ of Summons taken out in June, 1999, claimed the following reliefs against the respondents jointly and severally as follows:

“a. A declaration that the plaintiff is entitled to have her C of O processed to completion, as there is no basis for 3rd defendant’s protest against the allocation of plot No. BNB 3505 to her.

b. An order of specific performance against the 1st and 2nd defendants to wit; an order directing the 1st defendant to accept forthwith the additional N10,000.00 demanded from the plaintiff and to process to completion the preparation of the plaintiff’s C of O over the plot of land allocated to her.

c. An order restraining the 1st defendant, his servants’ or agents from further processing of the application of the 3rd defendant for the plot of land already allocated to the plaintiff and for which plaintiff had paid N5,000.00 for the preparation of the C of O thereof, as such processing is illegal, null and void.

d. An order of perpetual injunction restraining the 3rd defendant, his agents, servants or whomsoever on his behalf from entering the said plot of land for any reason whatsoever.

e. Special and general damages against the defendants for breach of contract and for interference with a valid contract limited to the sum of N5,000,000.00.”

In summary the appellant’s case was that sometime in early 1994 she observed a vacant piece of land opposite her rented residence at old GRA Makurdi, and upon confirmation from the Bureau of Land and Survey that it was vacant she applied on the 26th day of April, 1994 for a Right of Occupancy over the said piece of land. Her application was being processed by the Bureau as file No. BNB 3505. The Bureau by a letter dated 11/8/1994 conveyed its approval for the issuance of a Right of Occupancy and requested the appellant to submit a site plan of the said land.

The appellant duly complied, 1st and 2nd Respondents proceeded with the processing and charting of the title documents in appellant’s name to the level of final survey in April 1995. The issuance of title documents to the appellant was however stayed when 3rd respondent by a petition dated 5/5/1995 protested the allocation of the plot to her, demanding that same be allocated and processed in his name.

On the 27th day of September, 2000, the Court fixed the matter for hearing to the 13/10/2000 in the absence of both the appellant and her counsel and ordered that Hearing Notice should issue on the appellant through her counsel. On 13/10/2000 when the matter came up, appellant was absent and her absence was explained in a letter from her counsel informing the Court that Plaintiff, a Staff of Bank of the North Ltd, was away on a course at Kano, and was equally not aware that the matter was coming up that morning. Counsel himself sought for an adjournment of the matter on health grounds. None of the learned counsel for the respondents opposed the application for adjournment. However the learned trial Judge after hearing the respondents’ counsel ruled that the application for adjournment was unmeritorious and refused it. Having refused the application the trial court stated that since appellant was unavailable to open her case, the proper order in the circumstances was one under Order 37 Rule 8 of the Benue State High Court (Civil Procedure) Rules, 1988. The court then proceeded to enter an order dismissing the appellant’s suit before it. It is against the ruling and dismissal order that the appellant has brought this appeal.

Briefs were duly filed and exchanged. The appellant’s brief dated and filed 10/6/2010 pursuant to the order of this court was settled by Mrs. F.M. Ebofuame Nezan. The appellant’s brief of parturient raised the following 4 issues for determination;

(1)”whether it was competent for the Lower Court to have suo motu invoked the provisions of order 37 Rule 8 of the 1988 Benue state High court Civil Procedure Rules Edict 1988 to dismiss appellant’s suit without affording appellant the opportunity to be heard on it, and if not, the legal consequences of its so doing.

(2) Whether having regard to the circumstances of the case, it was a proper case for the invocation Order 37 Rule 8 of the 1988 Benue State High court Civil Procedure rules Edict?