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Padawa vs. Jatau

AZAKI PADAWA

YEZHI KWANYI WASU GAZHI TUMAKI

GWOMINA KWASUBO

ZANY ATUBO ZAKWOYI

ISHAKU AZAKI

DANLAMI MAIYAKI

TOTO LOCAL GOVERNMENT COUNCIL

TOTO LOCAL TRADITIONAL COUNCIL

V

AGMADA JATAU

[ Suing for himself and on behalf of the Jatau family of the Kabulu (Zagniyi) Ruling House of New Kulo village]

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

IBRAHIM TANKO MUHAMMAD, JCA ( Read the Lead Judgment )

IFEYINWA CECILIA NZEAKO, JCA

CA/J/66/98

WEDNESDAY, 22ND MAY, 2002

ACTION - Claims - When can be severable

ACTION - Claims - When claims against several parties can be severable - Whether judgment entered on severable claims against some defendants could prejudice trial in respect of the remaining defendants

APPEAL - Appellant - Who is - Who can exercise a right of appeal Distinction between a party on record and ‘persons interested’ -

When non-parties can exercise right of appeal as ‘persons interested’

APPEAL - Brief - Issues for determination - Whether proliferation of is allowed - Need for counsel to refrain from proliferating issues in his appeal brief

APPEAL - Irregularly filed appeal - Whether can be regularised

APPEAL - Respondent - Issues for determination formulated thereby Whether can be formulated outside appellant’s grounds of appeal

APPEAL - Right of appeal - Right of appeal exerciseable by party on record and non-party having interest in the case - Distinction between

APPEAL - Right of appeal - When non parties can exercise as persons interested

APPEAL - Right of appeal - Who can exercise - Need for non-parties having an interest in the matter to seek leave of court before appealing

COURT - Hearing notice - When court ought to issue and serve - Whether court ought to hear a matter without making sure that defendant is aware of the hearing date

FAIR HEARING - Audi alteram partem - Scope of the principle thereof

FAIR HEARING - Hearing notice - When court ought to issue and serve Whether court ought to hear a matter without making sure that defendant is aware of the hearing date

FAIR HEARING - Parties - Nominal or formal party - Who is

FAIR HEARING - Principle of fair hearing - Effect of failure to observe

FAIR HEARING - Question of fair hearing - Condition precedent to raising such question

JUDGMENT AND ORDERS - Severable claims - Judgment entered on against some defendants - Whether can prejudice the trial of the suit in respect of the remaining defendants

PARTIES - Nominal or formal party - Who is - Whether entitled to be heard or given opportunity to be heard

PARTIES - Severable claims - When claims against several parties can be severable - Whether judgment entered on severable claims against

some defendants could prejudice the trial of the suit in respect of the remaining parties

PRACTICE AND PROCEDURE - Appellant - Who is - Who can exercise a right of appeal

PRACTICE AND PROCEDURE - Claims - When can be severable

PRACTICE AND PROCEDURE - Hearing notice - What is - When court ought to issue

PRACTICE AND PROCEDURE - Hearing notice - When court ought to issue and serve - Whether court ought to hear a matter without making sure that defendant is aware of the hearing date

PRACTICE AND PROCEDURE - Issues - Proliferation of - Whether allowed - Need for counsel not to proliferate issues in his appeal brief

PRACTICE AND PROCEDURE - Parties - Nominal or formal party Who is - Whether entitled to be heard or given opportunity to be heard

PRACTICE AND PROCEDURE - Severable claims - When claims against several parties are severable - Whether judgment entered on severable claims against some defendants could prejudice the trial of the suit in respect of the remaining parties

Issues:

1.            Whether the declaratory reliefs sought by the plaintiffs against the 1st - 7th defendants vis-a-vis the 8th and 9th defendants were such a claim as are severable, that warranted the trial court to have entered judgment against the 8th and 9th defendants in default of defence.

2.            Whether the judgment of the trial court against the 8th and 9th defendants did not foreclose the 1st - 7th defendants’ defence to the plaintiff’s claim thereby depriving the 1st - 7th defendants right to fair hearing.

3.            Whether failure by the trial court to order hearing notices to be served on the 8th and 9th defendants to appear in court, when their counsel withdrew his appearance did not deprive them of the right of fair hearing.

Facts:

The facts relevant to this appeal was that the plaintiff/respondent sued the defendants seeking declaratory reliefs and injunction in respect of the chieftaincy stool of New Kulo village of Toto Local Government Area of

Plateau State. In the course of the proceedings, counsel appearing for the 8th and 9th defendants applied to withdraw his appearance, and his application was granted. Immediately thereafter, learned counsel for the plaintiff sought the leave of court to move his notice of motion for judgment against the 8th and 9th defendants in default of defence. Counsel for the 1st -  7th defendants said they were ready for the motion. The motion was moved, and in his ruling, the trial Judge entered judgment against the 8th and 9th defendants in default of defence.

Aggrieved by the ruling, the 1st - 7th defendants as appellants filed their appeal against the plaintiff. The issue whether the claims against the 8 th and 9th defendants were severable from that against the 1st - 7th defendants was hotly contested. The Court of Appeal in resolving this issue considered the provisions of Order 27, rule 8(1) and (2)(a) and (b) of the Benue State High Court (Civil Procedure) Rules, 1988 which provides as follows:

“8 (1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2  to 6, then if the defendant or all the defendants (where there are more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence apply to the court for judgment, and on hearing of the application, the court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

(2)     Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant then, if one of the defendants makes default as mentioned in that paragraph the plaintiff may:

(a)       If his claim against the defendant in default is severable from his claim against the other defendants apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or

(b)       set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment against the other defendants.”