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Rex vs. Inang

MR. SUNDAY MALAKA REX

V

CHIEF EMMANUEL EYO INANG

( Suing by Attorney (Mr. B. E. Enoch ))

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA ( Presided )

SIMEON OSUJI EKPE, JCA

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

CA/C/74/99

TUESDAY, 10TH DECEMBER 2002

APPEAL - Decision being challenged - Need for legal argument to take its bearing therefrom

APPEAL - Grounds of appeal - Error of law and mixed law and fact Examples of

APPEAL - Issue for determination - Need for to arise from grounds of appeal

COURT - Cases before the court - Power of court to adjourn - High Court Law of Cross River State Cap. 51

COURT - Default judgment - Whether court can set aside where applicant has not disclosed a defence to the action

COURT - Process of court - Failure to serve - Effect

COURT - Process of court - Service of - Duty of Judge to scrutinize

EVIDENCE - Proof - Process of court - Proof of service of - Order 12, rule

28  High Court Law of Cross River State

FAIR HEARING - Breach of - Effect of

FAIR HEARING - Breach of - When occasioned

JUDGMENT AND ORDERS - Default judgment - Condition precedent to obtaining

JUDGMENT AND ORDERS - Default judgment - Plaintiff’s right to - When arises - Order 27, rule 4 Cross River State High Court

JUDGMENT AND ORDERS - Default judgment - Whether court can set aside where applicant has not disclosed a defence to the action

LEGAL PRACTITIONER - Counsel - Duty of to check service of court process in advance

PRACTICE AND PROCEDURE - Adjournment - Cases before the court Power of court to adjourn - High Court Law of Cross River State Cap 51

PRACTICE AND PROCEDURE - Date of hearing of a matter - Failure to notify a party - Effect

PRACTICE AND PROCEDURE - Decision being challenged - Need for legal argument to take its bearing from

PRACTICE AND PROCEDURE - Default judgment - Condition precedent to obtaining

PRACTICE AND PROCEDURE - Default judgment - Default of appearance of defendant - right of plaintiff to prove his case thereupon

PRACTICE AND PROCEDURE - Default judgment - Plaintiff’s right to When arises - Order 27, rule 4 Cross River State High Court

PRACTICE AND PROCEDURE - Default judgment - Procedure for Adjournment of default judgment for defence - Whether called for

PRACTICE AND PROCEDURE - Default judgment - Whether court can set aside where applicant has not disclosed a defence to the action

PRACTICE AND PROCEDURE - Hearing notices - Burden of ensuring that hearing notices are served in appropriate cases - On whom lies

PRACTICE AND PROCEDURE - Process of court - Failure to serve Effect

PRACTICE AND PROCEDURE - Process of court - Proof of service of Order 12, rule 28 High Court Law of Cross River State

PRACTICE AND PROCEDURE - Process of court - Service of - Duty of Judge to scrutinize

PRACTICE AND PROCEDURE - Process of court - Service of - Duty of counsel to check in advance

Issue:

1.            Whether the affidavit of the defendant/appellant and argument of counsel to the defendant/appellant disclosed an arguable defence to warrant the setting aside of the judgment of the trial court?

2.            Whether the absence of the defendant throughout the proceedings and especially when the case was adjourned for defence was not deliberate.

3.            Whether the defendant was served with the relevant hearing notices before the trial court proceeded with the case.

Facts:

Plaintiff who is now respondent commenced this suit against the defendant/appellant his erstwhile tenant claiming the sum of N205,770 as special damages for the loss incurred by him in renovating his premises damaged by the defendant and N500,000 as general damages. The court granted substituted service of the originating summons and subsequent court processes.

Defendant entered conditional appearance and filed a preliminary objection to the jurisdiction of the court on the ground that the originating summons which was served on him outside Cross River State was not properly endorsed and that the service was improper. The objection was overruled yet defendant failed to file a defence even after he was ordered by the court and inspite of the extension of time granted by the court at his instance.

The case however suffered several adjournments after which plaintiff was granted leave to prove his case in default of defence by the defendant. At the close of plaintiff’s case there followed another round of adjournments to enable defendant cross-examine the plaintiff’s witness. The court ordered that hearing notice be served on the defendant, when the defendant failed to show up, court finally adjourned for judgment. The court entered judgment for the plaintiff as claimed and general damages in the sum of N200,000 was awarded. Thereafter the judgment was registered and executed.

Subsequently, defendant filed an application before the Chief Judge praying inter alia for an order suspending execution of the judgment of the trial court and an order setting aside the said judgment. The Chief Judge refused the application. Against the refusal appellant appealed to the Court of Appeal.