Womene Zuokemefa Jp. V. Obipan Company Ltd. & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A.(Delivering the Leading Judgment)

The appeal is against the ruling of Hon. Justice Iyayi Lamikaran High Court of Justice, Port Harcourt which was delivered on 1-2-03-2008 between the same parties.

The brief facts of the case at the lower court are that the claimant now simply to be referred as the appellant, claimed against the defendant now respondents as follows:

“1. Declaration that a loan between the defendants and the claimant is null and void on the grounds that it failed to comply with the rules and normal procedures for loan transaction and agreement.

2. An order of court setting aside the purported loan agreement and transaction on grounds of illegality, irregularity and deceit.
3. An order compelling the defendants to return the original document belonging for the claimant.
4. An order of perpetual injunction restraining the defendants from either selling the claimant’s building, the subject matter of the loan, lying and situate at No. 20 Bernard Carr street, Port Harcourt, which was used as collateral or intimidating or harassing the claimant in regard thereto”
5. The sum of N2, 000,000.00 (Two million Naira) being general damages for breach of Agreement.”

During the course of Proceedings the present respondents filed an amended statement of defence and counter claim, in which they sought a declaration that the transaction between them and the appellant was a sale transaction over the premises in dispute in which the appellant’s documents of title were willingly handed over to the respondents. That the documents were duly executed in favour of the respondents. The further case of the respondents at the lower court is that they took possession of the premises and all tenants therein were to be introduced to the 2nd respondent with a view of paying him the rent, (appellant inclusive) because he was occupying part of the property in dispute, and that the appellant infact did pay the rent to the 2nd respondent. In a nutshell, the respondents counter-claim against the appellant was as follows:-

1. A declaration that the 2nd defendant (2nd respondent) is the person entitled to the right of occupancy in and over the property known as No. 20 Bernard Carr Street, Port Harcourt.
2. N500, 000.00 as damages for trespass.
3. N4, 580,000.00 as loss of rent.

At the lower court’s proceedings, the appellant in his effort to establish his case, testified as CW1 but called no other witness to proof his claim. His sole evidence as contained at pages 109-115 of the record is that the respondent granted him numerous loans which totaled N6, 900.000.00 (six million nine hundred thousand naira) and that he was pressurized to sign the premises documents in connection to the loan transaction. It is on record at page 145 of the record that the appellant who first testified on 17-02 -2005 did not complete his evidence for even cross-examination because he stopped coming to court without reasonable explanation. After several adjournments, and after hearing the respondents’ application, the appellant’s case at the lower court was struck out. It is instructive to note that when the claimant/appellant failed to appear to prove his claim, his learned counsel, Chief J.O. Nwachukwu appeared continually on all adjourned dates totaling 6 adjournments and on 27-11-2006 learned counsel informed the court that he could not communicate with his clients as the claimant/appellant was not in court and he had not been able to reach him, The matter was adjourned to 13-12-06 and the trial court made it abundantly clear that, that was the last adjournment. On that adjourned date the appellant and his counsel did not appear nor gave any reason for heir(sic) absence, hence the appellants case was struck out for want of diligent prosecution with costs of N5000 before filing an application for relisting which was never complied with.

On the part of the respondents who were counter-claimants, two witnesses testified to prove their case. The lower court gave them a judgment in their favour that reads as follows:

“1. That the 2nd defendant/counter claimant Mr. Henry O. Panama is the beneficial owner and the person entitled to the statutory Right of Occupancy in respect of all that property known as and located at No. 20 Bernard Carr Street, Port Harcourt.

2. The claimant is to pay cost of N50, 000.00 in favour of the defendant/counter claimants.”

On hearing that his suit was struck out while the counter/claimants had secured a judgment in their favour, the appellant applied at the lower court for the suit to be relisted including the counter-claim. The lower court refused to relist on the ground that the matter was heard on merit and therefore functus officio. Hence the appeal which was filed on 26-3-2008 containing 3 grounds of appeal from which his counsel has distilled 2 issues for determination that read as follows:-

“l. Whether in view of the provisions of order 30 rules 4 of the Rules of the High Court the learned judge was right in declining jurisdiction to determine the application to relist the suit struck out and to set aside the default judgment on the grounds of being functus officio.

2. Whether the appellant was given fair hearing when he was not served with hearing notice when his suit was struck out and the judgment of the counter claim be valid.”

On the part of the respondents they have raised issues that read as follows:

“A was the learned trial judge right in declining jurisdiction to hear the application to relist the suit struck out and also refusing to set aside the judgment on the counter claim (grounds 1 & 2).

B. Was the appellant given a fair hearing (grounds 3).”

In determining the parties issues raised, there is no doubt in my mind that their respective two issues quoted above are closely interwoven or interrelated and therefore the issues will be treated together.