EZECHUKWU & ANOR v. ONWUKA

…………………….A…………………….

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Jos Division, hereinafter referred to as the Court below, delivered on the 7th day of April 2005, affirming the ruling of the Benue State High Court, the trial Court, in motion No.MHC/317M/2000 arising from Suit No.MHC/59/99. The brief facts leading to the appeal are supplied anon.
The respondent Chief I. O. C. Onwuka and one Dr. Odu, on the 12th April 1999, as plaintiffs, took out a writ claiming damages against the appellants and five others who had demolished their property.
The Law firm of Osuman & Co entered appearance for the 1st – 4th defendants vide T. S. Shior Esquire by a memorandum filed on 14th May 1999. S. T. Tume Esquire, a senior state counsel with the Benue State Ministry of Justice, by a memorandum filed on the 17th May 1999, entered appearance for the 5th – 7th defendants.
Hearing notices having been issued by the trial Court, parties were all served on the 6th July 1999. On the hearing date, 16th July 1999, neither the 1st – 4tn defendants nor their counsel appeared in Court. The 5th – 7th defendants, on the other hand, though not in Court, were represented by counsel and subsequently, by leave of Court, filed their statement of defence out of time. They also participated in the trial. Their counsel, J. O. Idikwu Esquire, full cross examined the 1st plaintiff and his four witnesses. The 2nd plaintiff neither appeared at nor participated in the trial which was concluded on the 11th April 2000.
Following application by counsel, the name of the 2nd plaintiff, who did not appear to prove his claim against the defendants, was struck out. Learned plaintiff’s counsel also conceded to the prayers of counsel to the 5th – 7th defendants that their names be struck out since the evidence led in Court had not disclosed any case against them.
On the 17th, two days to the 19th May 2000 to which date the case had earlier been adjourned for judgment by the trial Court the defendants, now appellants, applied to the Court inter-alia, for the arrest of its judgment and leave to file their statement of defence out of time. The reliefs were refused in their entirety.
Aggrieved by the ruling of the trial Court, the two defendants who were eventually found liable for respondent’s claim appealed to the Court below. The appellants have further appealed against the trial Court’s ruling as affirmed by the Court below on an amended notice containing ten grounds.
At the hearing of the appeal, parties through their counsel, adopted and relied on their respective briefs which had earlier been filed and exchanged as their arguments in the appeal.
The eight issues formulated in the appellants’ brief, see pages 6 and 7 thereof, read:-
“3.0 ISSUES FOR DETERMINATION
3.1 ISSUE 1
Whether or not the Court below was right in upholding the trial Court’s decision that appellants were given a fair hearing at the trial Court. This issue is distilled from ground 1, 2 and 3 of the grounds of appeal.
3.2 ISSUE 2
Whether or not the Court below was right in upholding the decision of the trial Court that there was service of Hearing Notice on the appellants, in the light of the conflicting affidavit evidence of the parties. This issue is distilled from (grounds 4, 5, 6 and 7 of the grounds of appeal).
The following subsidiary issues arise under this issue 2: namely
3.2.1(a) Whether or not the Court below was right when it upheld the decision of the trial Court?
resolving the irreconcilable conflicts in the affidavit evidence of the parties without recourse to oral evidence and,
3.2.2.(b) Whether or not from the evidence on record, there was proof of service of Hearing Notice on the appellants before the commencement of the trial of this suit.
3.3. ISSUE 3
Whether or not the Court below was right in upholding the decision of the trial High Court which failed to consider and apply the provisions of Order 37, Rules 1 , 2 , 3 , 4 and 5 of the Benue State High Court (Civil Procedure) Rules, 1988 , at the time the proceedings were conducted before the said trial Court. This issue is distilled from ground 9 of the Grounds of appeal.
3.4 ISSUE 4
Whether or not the Court below was right in relying on Exhibit “R” which was inadmissible evidence, as proof of service. This issue arises from ground 10 of the grounds of appeal.
3.4.1 The Subsidiary issue that arises under issue 4 is whether or not Exhibit “R” (i.e the uncertified photocopy of the purported proof of service of Hearing Notice on the Appellants’ Counsel) was a legally admissible document, if not, was the Court below right in affirming the decision of the trial High Court based on the reliance on the said Exhibit “R”.