JONATHAN EBICHUKWU IGBOLEZIM & ORS V. EMMANUEL EWURU & ORS (2013)

JONATHAN EBICHUKWU IGBOLEZIM & ORS V. EMMANUEL EWURU & ORS

(2013)LCN/6109(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/E/220/2006

RATIO

PRINCIPLE OF FAIR HEARING: THE DUTY OF THE COURT TO HEAR ALL PENDING APPLICATIONS BEFORE IT

More importantly, in relation to this appeal, the rule that a court must hear all pending applications and/or the rule that as a matter of priority the court must hear an application that seeks to serve the hearing of the case before one that seeks to destroy the hearing of the case are all species or offshoots of the constitutional provision relating to fair hearing. It is a cardinal principle of our administration of justice that all applications properly brought before a court must be heard. A party to a cause or matter is entitled and must be given the opportunity to be heard before a decision can be against him.
See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. Nnamani v. Nnamani (1996) 3 NWLR (Pt. 432) 591 at 597. The principle of fair hearing demands that every application must be heard on its merits.
NALSA and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652. Per. MOJEED ADEKUNLE OWOADE, J.C.A.

PRACTICE AND PROCEDURE: ATTITUDE OF THE COURT WHERE THERE ARE TWO MOTIONS

The following statement of the law on this subject matter emanated from the Supreme Court in the case of NALSA and Team Associates v. N.N.P.C. (supra) from no less a jurist than Nnaemeka-Agu J.S.C. at page 667 of the Law report.
” ………………It is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules, there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in-practice, the motion to summarily dismiss or struck out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial and not technical, justice. In such cases, the aim of the court ought to be to lean in favour of the proceedings that will bring about the doing of substantial justice. See Fari Khawam v. Foud Micheal Elias (1960) 5 F.S.C. 224, (1960) SCNLR 516. To do otherwise will amount to a wrongful exercise of the court’s discretion: See Wallersteiner v. Moir (1974) 3 ALL E.R. 217….” It is for the same reason as stated by my noble Law Lord above and also for the further reason of efficiency and effectiveness in the proper administration of law, the constant and perpetual need for quick disposition of disputes and to render every man his due that I disagree with the learned trial judge who preferred the filing of a counter-affidavit by the appellant to the respondents motion for judgment that the easier and quicker way of hearing the appellants motion for extension of time. For all these reasons, I agree with the learned counsel for the appellants that the refusal to hear the application for extension of time filed by the appellants has foreclosed the determination of the said motion for extension of time and the right of the appellants to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Mobil Prod. (Nig.) UNLTD. v. Monokpo (supra), Newswatch Comm. Ltd. v. Atta. (supra). Per. MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. JONATHAN EBICHUKWU IGBOLEZIM
2. JUDE ENWEREUCHE IGBOLEZIM
3. PATRICK CHIJEFO IGBOLEZIM
4. JONAH ENWEREUCHE IGBOLEZIM
(For themselves and as representing the
Edichukwu Sub-family, Enwereuche Sub-family
And Chijiefo Sub-family of lgbolezim extended
Family of Ndiegwungwu quarter in Umuoma Village,
Uli Town in Ihiala Local Government Area) Appellant(s)

AND

1. EMMANUEL EWURU
2. CHARLES OGUEHUO
3. JUSTINE IGBONAJU
4. FABIAN IBE
5. SYLVERIUS NZALABO IGBONAJU
6. SYLVESTER IBE
(For themselves and as representing Umueledielu Ojugbali extended family in Umuegungwu, Ndiegungwu
in Umuoma village, Uli Town in Ihiala Local Government Area Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of His Lordship C.E.K. Anigbogu J. of the Anambra State High Court sitting at Ihiala Judicial Division delivered on 08/02/2006.
The respondents as plaintiffs filed this action by a writ of summons dated 20/7/2004 whereby they claimed against the defendants/appellants as follows:-
(a) A declaration that the plaintiffs, as the original owners in effective possession from time immemorial, are entitled to the customary/statutory right of occupancy in respect of the said large piece or parcel of land known as and called “OKOHIA OBODO EZEDIELU” land situate within a very (sic) area of land known as and called “ALA EGUNGWIJ” at Ndiegungwu quarter, Umuoma village Uli town, in Ihiala Local Government Area of Anambra State, within the jurisdiction of this Honourable Court, more clearly delineated and verged PINK in the Plaintiffs survey Plan No. TLS/AN/D35/2004 filed with this statement of claim.
(b) N2,000.000.00 (Two million naira) being General damages for the said wanton trespass committed by the defendants on the plaintiffs farm land by engaging the services of and causing/instigating the said “OLUOHA” to seal off” the plaintiffs farm land, as aforesaid.
(c) An order of perpetual injunction restraining the defendants, their agents, servants workmen, successors-in-title, privies and assigns from further acts of trespass on the said piece or parcel of “OKOHO OBODO ELEDIELU” land in possession of the plaintiffs.
(d) An order of this honourable court, directing the defendants to cause the said “OLUOHA to remove the customary “seal” placed on the Plaintiffs farm land as stated above.
The court ordered pleadings on 23/9/2004 giving the respondents 60 days to file their statement of claim and plan and 60 days to the appellants to file their statement of defence and plan.
The plaintiff/respondents could not file their statement of claim and plan within time and brought a motion for extension of time on the 4th day of April 2005 to file the said statement of claim and plan.
This motion was granted unopposed and the defendants/appellants time started running thereafter.
The defendants/appellants failed to utilize their 60 days and the plaintiff/respondents consequently filed a motion for judgment served on the appellants on 3/2/2006 and fixed for hearing on 6/2/2006. The appellants subsequently filed a motion for extension of time on 6/2/2006. On 8/2/2006, the case was called up and the court in spite of the pending motion for extension of time took the motion for judgment and entered judgment for the plaintiffs/respondents.
The events of 8/2/2006 as contained at page 29 of the record of appeal are reproduced hereunder:
SUIT NO. HIH/37/2006
EMMANUEL EWURU & 5 OTHERS ….. PLAINTIFFS

AND

JONATHAN IGBOLEZIM & 3 OTHERS …… DEFENDANTS
2nd, 4th, 5th and 6th Plaintiffs in Court, Defendants absent.
E.O. Nwobosi Esq. for Plaintiffs/Applicants. Uzoamaka Ilobi Mrs. for Defendants/Respondents .
Nwobosi – Our Motion on Notice is for judgment in default of filing a statement of defence and survey plan. It is brought under Order 9 Rule 42(2) of the High Court Rule.
The Application is supported by a ten paragraph affidavit. We averred in the affidavit that the defendants are not interested in defending this action – See paragraphs 6 – 9 of the affidavit.
At the time of filing this Application, the defendants had not filed any application for extension of time or any counter affidavit to the affidavit in support of the motion for judgment. See our statement of claim and Plan.
The reason why the defendants are happy with the situation is that they are pleased with the customary seal placed in it by the Oluoha since 2002. That’s why they are not interested in the case and that’s why they are absent. Unless the Court does something drastic, the parties will not always come to Court. We ask for judgment as per our statement of claim.
Ilobi – We did not file any Counter affidavit.
Court – Upon the Defendants/Respondents not filing a counter affidavit and not showing any interest in the matter and being absent on two consecutive adjournments and dates judgment is entered for the plaintiffs as per the statement of claim. The reliefs sought are therefore granted accordingly.
SIGNED:
C.E.K. ANIGBOGU
(JUDGE)
08/02/2006.
Dissatisfied with the judgment entered on 08/02/06, the defendants’ appellants filed a Notice of Appeal containing three grounds of appeal before this court on 20/2/2006.
The relevant briefs of argument for this appeal are as follows:
(a) Amended Appellants brief of Argument dated 18/5/06 and filed on 25/5/09 – settled by Chief E.E. Egbunonu.
(b) Respondents brief of argument dated 17/10/06 deemed filed on 28/6/2007 – settled by E.C. Nwobosi.
(c) Reply on points of Law dated 10/7/07 and filed on 12/7/07 – settled by Chief E.E. Egbunonu.
Learned counsel for the Appellants formulated three (3) issues for determination to wit:
i. Whether the court was right in awarding judgment to the Plaintiffs without taking evidence to prove the declaratory relief sought.
ii. Whether the court was right in awarding cumulative damages of N2,000.000.00 (Two million naira) in an unliquidated prayer for general damages for trespass.
iii. Whether the court was right in not treating the motion for extension of time properly filed and served.
Learned counsel for the Respondents submitted only one issue for determination that is:
(1) Whether the learned trial judge in the circumstances enumerated was right to have given judgment in favour of the Plaintiffs (now Respondents) as per their statement of claim and plan.
I have carefully gone through the processes filed and I am convinced that a sole issue coined as follows would serve the interest of justice in determining the appeal.
“Whether the court was right in awarding judgment and excessive damages without taking evidence to prove the declaratory relief sought and in spite of the defendant’s motion on notice for extension of time.
In arguing the sole issue, learned counsel for appellants submitted that in declaratory action the Plaintiff is expected and required to prove by giving credible evidence that he is entitled to the declaration sought and judgment in such a case will not be awarded as a matter of course. There is a legal burden on the Plaintiff to prove his case as declaratory reliefs are equitable in nature. Counsel submitted that it is trite that courts do not grant declarations either in default of pleadings or indeed on admissions without hearing evidence and being satisfied by such evidence. He referred to the case of Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187 at 214 to say that declaration is a discretionary remedy that is not given or made too readily.
Learned counsel for the appellants re-echoed the facts of the case and queried – could the filing of the motion for extension of time not be deemed to be counter – affidavit?
He argued that the court without allowing the Plaintiffs/Respondents to prove their case by giving credible evidence awarded them judgment based on the motion paper. (page 29 of the record of appeal) He submitted that the court did not consider the legal authorities that pleadings do not replace evidence or amount to evidence in a declaratory action. Pleadings, said counsel is only a notice to the other party which is intended to alert him, on what the party filing it intends to rely on to prove his case or to defend his case. It is not a substitute for evidence and a party is only expected to plead material facts not evidence.
The law, said counsel is that a Plaintiff in a claim for a declaration of title must succeed on the strength of his case and to assess the strength of a plaintiff’s case, the pleadings and the evidence must be examined. That, when evidence is at variance with pleadings, such evidence will not have value.
Counsel referred to the case of Eze and 6 others v. Atasie and 3 others (2000) 6 SCNJ 209 at 216 – 217 and submitted that the trial court did not consider this portion of the law but merely gave judgment on the facts contained in the pleadings without evidence or proof by the plaintiffs respondents.
Appellants counsel referred to the case of Adesanya v. Aderounmu and 2 Ors. (2000) 6 SCNJ 242 at 252 where the Supreme Court held that for a plaintiff to succeed in a claim for declaration of title to land, the court must be satisfied as to:
(a) Precise nature of title claimed, that is to say whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and,
(b) Among other things the evidence establishing the nature of title claimed.
Counsel submitted that the Supreme Court held in the Adesanya v. Aderounmu case (supra) that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendants. That, the Supreme Court further opined in the case that the rationale behind the principle is that the plaintiff having sought relief from the court but failed to establish his entitlement thereto ought to have his claims rejected.
Furthermore, said counsel, in the case of Oluhunde, and Anor. v. Adeyoju (2000) 6 SCNJ 470 at 491, the Supreme Court held that the plaintiff to succeed in his claim on the strength of the pleadings must satisfy the court by credible evidence as to the origin and devolution of the title in respect of the land in dispute to himself.
Counsel submitted that in the case at hand, the court did not hear any evidence nor required the plaintiffs to prove their case, but merely awarded them title to the land as per their claim.
On another wicket, learned counsel for the appellant submitted that the court’s refusal to hear the motion for extension of time is unfair and amount to infraction of the defendant’s constitutional right of fair hearing.
Counsel submitted that the appellants filed a motion for extension of time on the same 6/2/2006, that the respondent’s motion for judgment in default was to be heard.
That, it is the court that fixes dates for hearing of motions. He submitted that the court did not sit on Monday the 6th of February 2006 and the motions were adjourned to 8/2/2006.
That, on 8/2/2006, the court refused to hear the motion for extension of time solely on the ground that the appellants did not file a counter affidavit to the motion for judgment and the court erroneously decided to hear the motion for judgment and even refused to allow the appellants counsel to reply on law.
Counsel submitted that the legal issue from the above is that the motion for extension of time serves as a counter affidavit as it’s purpose was to counteract the motion for judgment on the ground that appellants have a defence to the suit but were out of time to file their pleadings. The motion by implication serves legally as a counter to the motion for judgment.
He submitted that the decision of the trial court to totally ignore the appellants motion is wrong. The court, he said, has a duty to treat all applications correctly and properly filed, as it cannot say that the motion for extension of time was not before it and even the motion for judgment has no date affixed unto it as can be seen from the record of appeal.
Learned counsel for the appellants submitted that the duty of a party coming before a court is to pay for all processes after due assessment by the Registrar of the court and this duty is apparently discharged if such a party shows evidence of payment. In this case, said counsel, the appellants duly paid for the process filed.
He added, that where for any reason an application was not expeditiously drawn to the attention of the court by the court’s officers who ought to do so or where the court failed to fix the date of hearing of the application as in the instant case, that could be no excuse for simply discountenancing the application when the court becomes aware of its existence.
Counsel submitted that in the instant case, rather countenancing the applicants application which possesses the character of stopping or affecting the judgment, the learned trial judge erroneously entered judgment for the respondent.
On this, counsel referred to the cases of U.D.F.U.. Sokoto v. Balogun (2006) 9 NWLR (Pt. 984) 124 at 141.
Mobil Prod. (Nig.) UNLTD. V. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 413.
Learned counsel for the appellants referred to a plethora of authorities for the proposition that a court has a duty to hear all applications brought properly before it. They are:
Ilori v. Benson (2000) 9 NWLR (Pt. 678)
Nnamani v. Nnamani (1996) 3 NWLR (Pt. 438) 591.
Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144 at 179 and Nalsa and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652.
Counsel submitted that in the case at hand, the appellants properly brought the application for extension of time and paid all necessary fees. That, it is also the court that fixes dates to hear motions as can be seen on the face of the motion for judgment filed by the respondents which has no date on it. (page 21, 25 and 26 of the record of appeal respectively).
The court, said counsel, ignored the appellants’ motion for extension of time without justification and erroneously entered judgment for the respondents based on the motion for judgment.
Counsel submitted that it is incumbent on the court to hear a motion or any process before it, however unmeritorious. In other words, a court should not ignore a motion or process before it and give a decision one way or the other without considering the motion or process.
Counsel referred again to the case of Newswatch Communications Ltd. v. Atta (supra) at page 168.
Appellants counsel submitted that it is a cardinal principle of the administration of justice to let a party know the fate of his application, whether properly or improperly brought before the court.
That, the refusal to hear the application for extension of time filed by the appellants has foreclosed the determination of the said motion for extension of time and the right of the appellants to fair hearing as enshrined in Section 36 of the 1999 Constitution.
Counsel referred again to the case of Mobil Prod. (Nig.) UNLTD. v. Monokoo (supra) where it was held that a refusal of a court to hear a motion is breach of right to fair hearing guaranteed under the constitution.
He submitted still relying on the case of Mobil Prod. (Nig) UNLTD. v. Monokpo (supra) that where there are two competing motions, one capable of terminating the proceedings and other seeking to regularize same, the court is obliged to give priority to the application seeking to regularize proceedings.
Learned counsel for the appellants did not stop at the above. He further submitted that the award of N2,000.000.00 (Two million naira) being general damages for “wanton trespass committed by the defendants on the plaintiffs farm land by engaging the services of causing/instigating the said Oluoha to ‘seal off’ the plaintiffs farm land” was wrong in law.
He submitted that the acts of trespass were pleaded in paragraphs 36, 42, 43, 44, 45, 46, and 47 of the statement of claim mainly that the appellants inter planted with the respondents as a result of a local injunction emanating from customary arbitration.
That, the land in dispute was sealed off pending when the dispute is determined by the arbitrators before the respondents came to court (pages 10 – 17 of the record of appeal).
Counsel submitted that taking the above into consideration, it is clear that the appellants also have their farm crops on the land in dispute and therefore the award of damages as done by the court was without consideration of the admission of the fact by the respondents that the appellants have their crops on the land in dispute.
Counsel referred to the case of Joseph Onwu and 11 Ors. v. Ezekiel and 2 Ors.(1996) 7 SCNJ 240 at 258 and submitted that it is not enough for the court to simply award damages in an action for trespass to land without giving any reason as to how it arrived at what amounted to reasonable damages.
He argued that the award of N2,000.000.00 (Two million naira) as per the plaintiffs/respondents statement of claim by trial court was manifestly wrong because the court did not take any evidence as to what constituted the trespass and damages giving rise to the monetary award. The court, counsel said, merely gave judgment based on the assertion of allegation in the statement of claim which was not proved by any evidence.
An assertion without credible evidence does not amount to proof.
On this, counsel referred to the Supreme Court in the case of Anthony Idesoh and Anor. v. Chief Paul Oridia and 5 Ors. (1997) 2 SCNJ 175 at 184.
By the above authority, said counsel, the plaintiffs respondents ought to have been called upon by the court to enter the witness box and give evidence of the trespass and damage and not to rely on mere allegation or assertion in the statement of claim.
He said, the court cannot by the motion for judgment alone award damages in an unliquidated monetary claim as in this case.
Learned counsel for the respondent on the other hand submitted on the sole issue as follows:
(i) The learned trial judge was right in law in giving judgment for the respondent in the circumstances of the case.
(ii) The learned trial judge rightly applied the provisions of Order 9, Rule 42(2) of the High Court Rules, 1988 of Anambra State (which were the applicable rules of court when the judgment was delivered on 8/2/2006).
(iii) The respondents claim for N2000,000.00 was for general damages and the learned trial judge was right in law to award the damages under this heading without calling evidence.
In his reply brief, Chief E.E. Egbunonu for the appellants pointed out that the proviso to Order 9 Rule 42 (2) specifically stated that where damages are claimed, the court shall take evidence before quantifying the damages entitled by the plaintiff on the statement of claim.
That, what this presupposes is that the plaintiff shall be put in the witness box for him to give evidence of the alleged damages.
In deciding the sole Issue as formulated by this court in this appeal, it is only appropriate to start by setting out the provisions of Order 9 Rule 42 of the Anambra State High Court Rules 1988 on which reliance has been placed by both the learned trial judge and the learned counsel for the respondents in this appeal. Order 9 Rule 42 of the Anambra State High Court Rules 1988 deals with effect of default in pleadings and it states as follows:-
42(1). If the plaintiff fails to file a statement of claim as prescribed by these rules or by an order of the court, the court may dismiss or strike out the suit, on the application of the defendant, or suo motu.
2. If the defendant fails to file a statement of defence as prescribed by these rules or by the order of the court, the plaintiffs, on his application, shall be entitled to judgment on the face of the statement of claim, provided that where damages are claimed, the court shall take evidence before quantifying the damages entitled by the plaintiff on the statement of claim.
3. Any judgment or order obtained by virtue of this rule shall be a final judgment, but the court has power to vary or reverse such judgment or order or an application by the affected party brought not later than thirty days from the date of such judgment or order”
It seems to me that on the face of the provisions of order 9 Rule 42(2) itself, the learned trial judge was in error to have given judgment in default on the respondents claims in the pendency of the appellants motion on notice for extension of time to file statement of defence and plan dated and filed on 6/2/2006. (see page 25 of the record).
This is because in my humble opinion, a defendant could not be said to have failed to file a statement of defence under the said Rules in the pendency of a motion on notice by the same defendant to file same.
Secondly order 9 Rule 42 of the Anambra State High Court Rules 1988 was also wrongly invoked by the learned trial judge because the proviso to Rule 42(2) mandates the trial judge to take evidence, where damages are claimed, before quantifying the damages entitled by the plaintiff on the statement of claim.
By necessary implication therefore, the provision is not applicable without taking evidence as in this case where the claims of the respondents are for declaration, damages for trespass and injunction.

More importantly, in relation to this appeal, the rule that a court must hear all pending applications and/or the rule that as a matter of priority the court must hear an application that seeks to serve the hearing of the case before one that seeks to destroy the hearing of the case are all species or offshoots of the constitutional provision relating to fair hearing.
It is a cardinal principle of our administration of justice that all applications properly brought before a court must be heard. A party to a cause or matter is entitled and must be given the opportunity to be heard before a decision can be against him.
See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
Nnamani v. Nnamani (1996) 3 NWLR (Pt. 432) 591 at 597.

The principle of fair hearing demands that every application must be heard on its merits.
NALSA and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652.
In the instant case, the learned trial judge was clearly in error to have ignored the appellants motion for extension of time to file statement of defence and plan in giving judgment in default to the respondents.
In any event, the rule as to priority of hearing motions demand that the appellants motion for extension of time to file statement of defence and plan be taken before the respondents application for judgment in default on the same 8/2/2006 when the judgment was given.
The following statement of the law on this subject matter emanated from the Supreme Court in the case of NALSA and Team Associates v. N.N.P.C. (supra) from no less a jurist than Nnaemeka-Agu J.S.C. at page 667 of the Law report.
” ………………It is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules, there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in-practice, the motion to summarily dismiss or struck out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial and not technical, justice.
In such cases, the aim of the court ought to be to lean in favour of the proceedings that will bring about the doing of substantial justice. See Fari Khawam v. Foud Micheal Elias (1960) 5 F.S.C. 224, (1960) SCNLR 516. To do otherwise will amount to a wrongful exercise of the court’s discretion: See Wallersteiner v. Moir (1974) 3 ALL E.R. 217….”
It is for the same reason as stated by my noble Law Lord above and also for the further reason of efficiency and effectiveness in the proper administration of law, the constant and perpetual need for quick disposition of disputes and to render every man his due that I disagree with the learned trial judge who preferred the filing of a counter-affidavit by the appellant to the respondents motion for judgment that the easier and quicker way of hearing the appellants motion for extension of time.
For all these reasons, I agree with the learned counsel for the appellants that the refusal to hear the application for extension of time filed by the appellants has foreclosed the determination of the said motion for extension of time and the right of the appellants to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
See Mobil Prod. (Nig.) UNLTD. v. Monokpo (supra), Newswatch Comm. Ltd. v. Atta. (supra).
For these reasons, and in all the circumstances the sole issue for determination in this appeal is resolved in favour of the appellants. The appeal is meritorious and it is accordingly allowed.
Suit No. HIH/39/2004 is accordingly remitted to the Honourable Chief Judge of Anambra State for assignment to another Judge of the High Court of the State other than His Lordship Hon. Justice C.E.K. Anigbogu for hearing de novo.
N30,000.00 costs is awarded in favour of the appellants.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now, the draft Judgment prepared and just delivered by my learned brother, Owoade, JCA. I agree with the reasoning and conclusion reached therein. The appeal is meritorious and it is accordingly allowed. Suit No. HIM/39/2004 is accordingly remitted to the Honourable Chief Judge of Anambra State for assignment to another Judge of the High Court of the State other than Anigbogu, J. for hearing de novo.
I abide by the order as to cost.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the judgment delivered by my learned brother, MOJEED ADEKUNLE OWOADE JCA, I agree with the reasoning and conclusion that the trial Court should not have entered judgment in default of pleadings granting a declaration of title and awarding damages for trespass on the basis of the statement of claim without any evidence from the plaintiff in support of the statement of claim and justifying such judgment.
However, with due respects, I cannot go along with the decision that the trial Court ignored and refused to hear the defendants pending application for extension of time to file their statement of defence. I had considered leaving this matter to rest since the success of the appeal on the other two issues will certainly result in the setting aside of the said judgment. Because of the topical nature of this issue and its implication for dealing with the thick fog of abuse of Court processes enveloping our court system, provision of equal opportunities for parties in a case, the expeditious and economic disposal of cases and the delivery of substantial justice in every situation, I decided to express my opinion on the point having regard to the peculiar facts of this case.
I will start by highlighting the peculiar facts of this case that have compelled me to express this opinion. The facts relevant to this discourse are those concerning the events of the trial court on 8th February 2006. The record of the proceedings for that day at page 29 of the record of this appeal are reproduced here as follows:
“BEFORE HIS LORDSHIP HON. JUSTICE CHINYELU EMEKA KALEJINE ANIGHOGU
ON WEDNESDAY 8TH DAY OF FEBRUARY, 2006

SUIT NO: HIH/37/2006

EMMANUEL EWURU & 5 ORS PLAINTIFFS

AND

JONATHAN IGBOLEZIM & 3 ORS DEFENDANTS
2nd, 4th and 6th plaintiffs in Court, Defendants absent.
E.O. Nwobosi Esq. for plaintiffs/Applicants. Uzoamaka Ilobi Mrs. for Defendants/Respondents.
Nwobosi – Our motion on Notice is for judgment in default of filing a statement of defence and survey plan. It is brought under Order 9 Rule 42(2) of the High Court rule.
The Application is supported by a ten paragraph affidavit. We averred in the affidavit that the defendants are not interested in defending this action – See paragraph 6 – 9 of the affidavit.
At the time of filing this Application, the defendants had not filed any application for extension of time or any counter affidavit to the affidavit in support of the motion for judgment. See our statement of claim and plan. The reason why the defendants are happy with the situation is that they are pleased with the customary seal placed in it by the Oluoha since 2002. That’s why they are not interested in the case and that’s why they are absent. Unless the court does something drastic, the parties will not always come to court. We ask for judgment as per our statement of claim.
Ilobi – We did not file any counter affidavit.
Court Upon the Defendants/Respondents not filing a counter affidavit and not showing any interest in the matter and being absent on two consecutive adjournments and dates Judgment is entered for the plaintiffs as per the statement of claim. The reliefs sought are therefore granted accordingly.”
This appeal is against the above judgment of the trial court. The third ground of this appeal states that:
“The court misdirected itself in law and in fact when it refused to hear the motion for extension of time properly filed and in its file (which by its practice, it alone fixes dates for hearing of motions) but chose to hear the motion for judgment notwithstanding the fact that motions or applications properly filed in a suit must be called up and dealt with one way or the other and such a motion/motions cannot be ignored. This lapse occasioned a denial of fair hearing and miscarriage of justice to the defendants whose counsel was not allowed to reply on law because the defendants filed no counter affidavit.
PARTICULARS
1. The defendants filed a motion for extension of time to file their statement of defence and plan.
2. The motion was in the court’s file and the court’s attention drawn to it by the defendants counsel but the court said that because the defendants were absent that it would not hear the motion and that it was no proper before the court.
3. The court went ahead to hear the motion for judgment and granted it without allowing the defendants Counsel to reply on points of Law since no counter affidavit was filed.
4. The refusal to hear the motion for extension of time and the act of awarding judgment to the plaintiffs had rendered useless the motion for extension of time properly filed.”
One of the three issues raised by the appellant for determination in this appeal is “whether the court was right in not treating the Motion for extension of time properly filed and served.” This issue is based on the ground of appeal reproduced above. For ease of reference and to further an understanding of the treatment of this issue here, let me reproduce the main part of the argument of this issue by Learned Counsel for the appellant. It states:
“On the third issue, I submit that the court’s refused to hear the motion of extension of time is unfair and amount to infraction of the defendants constitutional right of fair hearing.
The plaintiffs/respondents did not file their statement of claim and plan within the time allowed them and consequently filed a motion for extension of time to file same on 21/2/2005 and the motion was granted without opposition on 4/4/2005. (see pages 5 – 20 of the record of appeal) The respondents filed a motion for judgment on 2/2/2006 and served same on the appellants counsel on Friday the 3rd day of February 2006 for hearing on Monday the 6th day of February, 2006 (purportedly). By Monday 6th February 2006, the motion for judgment was not ripe for hearing because the appellants 48 hours mandatory time was not yet exhausted and the appellants filed a motion for extension of time properly that same 6/2/2006 and it is the court not the registrar that fixes dates for hearing of motions. (see pages 25 – 28 of the record appeal). The court did not sit on that Monday and the motions were adjourned to 8/2/2006. On 8/2/2006, the court refused to hear the motion for extension of time solely on the ground that the appellants did not file a counter affidavit to the motion for judgment and the court erroneously decided to hear the motion for judgment and even refused to allow the appellant counsel to reply on law.
The court was bitter because the appellants who did not know about the new date were absent in court. (see page 29 of the record of appeal).
The legal issue from the above in my humble view is that the motion for extension of time serves as a counter affidavit as it purpose was to counteract the motion for judgment on the ground that they i.e. at appellants have a defence to the suit but were out of time to file their pleadings. The motion by implication serves legally as a counter to the motion for judgment.
The decision of the trial court to totally ignore the appellants motion, is wrong. The court has a duty to treat all applications correctly and properly filed as it cannot say that the motion for extension of time was not before it and even the motion for judgment has no date affixed unto it as can be seen from the record of appeal.
The duty of a party coming before a court is to pay for all processes after due assessment by the registrar of the court and this duty is apparently discharged if such a party shows evidence of payment and in this case the appellants duly paid for the processes filed as can be seen on page 26 of the record of appeal. Furthermore where for any reason an application was not expeditiously drawn to the attention of the court by the court’s officials who ought to do so or where the court failure to fix the date of hearing of the application as in the instant case that could be no excuse for simply discountenancing the application when the court becomes aware of its existence as in this case and instead it proceeded to enter a judgment when such application has the character of stopping or affecting such judgment.”
A calm and careful reading of the record of the proceedings of the trial court, ground three of this appeal and the argument of issue No 3 in the appellant’s brief show clearly that the said ground 3 of this appeal and the argument of third issue for determination allege facts of events that are not contained in the said record of proceedings. The events alleged therein are that:
(1) The motion for extension of time to file a statement of defence was in the court’s file
(2) The court’s attention was drawn to it by defendant’s Counsel.
(3) The Court refused to hear it because, the defendants were absent the defendants did not file a counter-affidavit and that the motion was not proper before it.
(4) The court proceeded to hear and grant the motion for judgment refusing to allow the defendant’s counsel to reply on points of law since no counter-affidavit was filed.
(5) The court totally ignored the defendants’ motion for extension of time.
(6) The court was aware of the existence of the motion for extension of time.
(7) The motion for extension of time was properly served.
The appellants have not contended in this appeal that the record of the proceedings of the trial court are incomplete or do not accurately represent the proceedings of the trial court. The accuracy and completeness of the said record remain unquestioned. Therefore any fact process or event not contained therein did not occur in the proceedings and was not part of the proceedings. Allegations of any fact or event as having occurred in the trial proceedings will be false if it is not contained in the record of the proceedings of the court. Since all the facts of events listed above are not contained in the record of the proceedings of the trial court, the allegation in the above ground of this appeal and in the argument of issue No 3 of the Appellant’s brief that they occurred in the proceedings of the trial court is false. The said ground of appeal and arguments are based on these false allegations or assumptions. I do not think that any valid argument can proceed from or be based on these false assumptions or suppositions. It is trite law that the arguments of parties in an appeal must be based on the record of the proceedings at the trial court and therefore allegations of facts or events not contained in the record of the proceedings of the trial court are not valid for consideration.
The record of the proceedings of the trial court which is the record of this appeal shows clearly that:
1. The time allowed the defendants to file their statement of defence had expired.
2. On the 2nd February 2006, the plaintiff’s filed a motion on notice for judgment against the defendants in default of filing their statement of defence.
3. On the 6th February 2006, the defendants filed a motion on notice praying for extension of time to file their statement of defence.
4. On the 8th of February 2006, the suit No HIH/37/2006 came up before the trial court and the events following took place in court.
(i) Mr Nwobosi, Learned Counsel for the plaintiffs moved the plaintiffs’ motion for judgment
(ii) While moving the motion, Mr Nwobosi informed the court that “At the time of filing this application, the defendants had not filed any application for extension of time or any counter-affidavit to the affidavit in support of the motion for judgment.”
(iii) Mr Ilobi, Learned Counsel for the defendants merely said without more that “we did not file any counter-affidavit”
(v) Whereupon the trial court proceeded to decide thus:
“Upon the Defendants/Respondents not filing a counter affidavit and not showing any interest in the matter and being absent on two consecutive adjournments and dates Judgment is entered for the plaintiffs as per the statement of claim. The reliefs sought are therefore granted accordingly.”
The proceedings of the trial court on 8th February 2006 beg the following questions:
(i) Is it not clear from the statement of Learned Counsel for the plaintiff, Mr Nwobosi, that the defendants had not filed an application for extension of time that he is saying that the plaintiffs are not aware of the existence of such application
(ii) Why did Learned Counsel for the defendants, Mr Ilobi remain silent in the face of the above statement of Learned counsel for plaintiff’s and did not at that juncture inform his colleague and the Court that the defendants had filed a motion for extension of time 2 days before then.
(iii) After the motion for judgment was moved, why did Learned Counsel for the defendants, Mr Ilobi not oppose the motion on grounds of law that there is competing motion for extension of time. Why did he remain silent about the existence of their motion of extension of time and merely informed the Court that they filed no counter-affidavit.
(iv) Why did Learned Counsel for the defendants exhibit such palpable lack of resistance to the motion for judgment.
It is my view that the submission of Learned Counsel for the plaintiff that the defendants had not filed an application for extension of time to file their statement of defence show that the plaintiff’s were not aware of the existence of such an application. Learned Counsel for the defendants was thereby sufficiently put on notice and alert that the defendants motion for extension of time may not have been brought to the notice of the plaintiff’s. He ought to have immediately informed his colleague and the court that he had filed such a motion. He did not and remained quiet and tacitly thereby admitted that the defendants had not filed an application for extension of time. Learned defence counsel had an opportunity to reply to the argument of plaintiff’s counsel while moving his motion for judgment. That was another opportunity to draw the attention of the court and his colleague to the fact that he had filed a motion for extension of time. He did not. Learned counsel should have opposed the application for judgment on the ground that there is a competing motion for extension of time. He did not. He offered no resistance at all to the granting of the motion. It is clear from the foregoing that the attention of the court and the plaintiff’s counsel was not drawn by Learned Counsel for the defendants to the existence of the motion on notice filed two days previously. It is noteworthy that there is nothing in the record of this appeal showing that the plaintiffs were served with the motion for extension of time.
Since the courts attention was not drawn to the pendence or existence of the motion for extension of time, will it be right to accuse the court of ignoring or refusing to hear an application it was not aware of. I do not think so. Can the trial courts awareness of the existence of such a process be deemed or assumed from the fact of the filing of the process two days previously? I do not think so. To hold otherwise will disregard the current realities in the management of processes in out court registries. It is a notorious fact that it takes some length of time for processes filed in the court registry to get to the case file of the court. So that in many situations, the court during proceedings in open court only becomes aware that a particular process had been previously filed in its registry when its attention is drawn to such filing by counsel who filed it. This occurs frequently that it is no longer realistic and pragmatic to assume that once a process is filed in the court registry, it must be in the courts case file and that the Judge must be aware of its existence. This is the situation for now until our court registries are organized and equipped to ensure that processes filed are promptly put in the court’s file and brought to the notice of the Judge before the proceedings in that case begins on a particular day. It is not realistic to expect that the Judge should contact the registry to find out if any processes have been filed in respect of the case or cases before him or her for a particular day. In the light of this reality, it is the duty of the party that filed a process to draw the courts attention to the fact that such process has been filed.
The defendants showed no interest in the motion they filed two days previously. The proceedings of 8th February 2006 show that they abandoned that motion. Their failure to mention or try to move the motion consistent with this conclusion.
It is trite law that a court cannot ignore or refuse to hear any application before it. A motion or any other process no matter what the Judge thinks about it, must be considered and decided one or the other. It will amount to a violation of the right to fair hearing of the party who brought the motion or process and render suspect the impartiality of the judicial process to refuse to hear or ignore a pending motion or other process. See Emeka v Okadigbo (2012) LPELR (SC) IBATOR & ORS VS BARAKURO & ORS (2007) All FWLR (Pt. 371) 1669 at 1695 held 2.
However, as held by this court in IKECHUKWU VS. NWOYE & ORS (unreported judgment in CA/E/300/2012) following the decision of the Supreme Court in Emeka V Okadigbo(supra) per Rhodes-Vivour JSC it is not in all cases that failure of the trial court to hear a pending motion before delivery of judgment is fatal to the proceedings. It is the duty of an Appeal court to examine the motion that was pending and ensure that failure of the trial Judge to take it has not led to a denial of fair hearing or/and miscarriage of justice.
Where the court is not aware of the filing and therefore the existence of a motion on notice, it cannot be said to have refused to hear such motion. As the Supreme Court held in IBATOR & ORS VS BARAKURO & ORS (supra) held that “a court cannot be wrong for not hearing or determining a matter, the notice or existence of which was not drawn to its notice. In that case, His Lordship, Mohammed JSC delivering the lead judgment of the court held that:
“From this record, it is quite clear that when the attention of the court below was drawn to the pending motion filed by the 1st – 4th respondents and the application by their counsel to withdraw the motion, as the learned counsel to the appellants had no objection to the withdrawal of the motion, it was accordingly struck out by the court below. At that point, if the appellants’ counsel had wanted to proceed with the appellants’ pending motion to call additional evidence before hearing their appeal, their learned counsel could have informed the court of his desire to move the motion first for determination before the hearing of the appeal. Therefore, by refusing to say anything to the court below on the appellants’ motion before arguing their appeal, their learned counsel a fortiori, the appellants are deemed to have abandoned their motion. The complaint of the appellants of the alleged denial of fair hearing does not arise at all from the proceedings of the court below.”
According to Ogbuagu JSC in the same case “The records on the hearing date or even before the judgment or even on the date of the judgment have not shown where the appellants’ said motion/application was ever mentioned to the court below/Justices, how much more to talk of their failing to hear the said application. If the learned counsel for the appellants, in his wisdom, had decided as the ‘master’ of their appeal before the court below, to abandon their said motion and not even to mention it, how does the court below or the Justices come in? I or one may ask It should have been a different matter if the learned counsel for the appellants had mentioned their said motion and the court below refused to hear the same and insisted on going on or ahead with the hearing of the appeal. Then, there and then, the complaint of the learned counsel for the appellants and not even the appellants personally should have been understandable and considered. To now blame the blameless or ‘shift the buck’, so to say of the failure or refusal of the learned counsel, or his neglect to mention their motion or move it to the learned Justices of the court below and blatantly accuse them of refusal to hear and determine the said application, to me, is unfair and not justified to say the least and it is unacceptable to me, with the greatest respect to the learned counsel to the appellants. Instead of graciously accepting or conceding his fault or negligence and blame this on perhaps inadvertence, he now shifts the non-hearing of the motion on the learned Justices of that court.”
In virtually all the cases in which this court or the Supreme Court held that a pending motion or process was ignored or that a court refused to consider such motion or process, this court or the Supreme court did so on the basis that the existence or pendence of such motion or process was brought to the attention or notice of the court, and it did not consider and determine the motion or process one way or the other, disregarded it and went ahead to take a decision that rendered it nugatory. See for example Akpan vs Bob (2010) 17 NWLR (Pt. 1223) 421 (SC) Dingyadi & Anor vs. INEC & Ors (2010) LPELR 952 and Ifeanyi Chukwu Okonkwo vs. CBN (2010) LPELR 428 (CA). Even learned Counsel for the appellant in the appellants brief acknowledge the need for the Court to be aware of the existence of the motion. This is clear from the part of his submission that ” where for any reason an application was not expeditiously drawn to the attention of the court by the court’s officials who ought to do so or where the court’s failure to fix the date of hearing of the application as in the instant case that could be no excuse for simply discountenancing the application when the court becomes aware of its existence as in this case and instead it proceeded to enter a judgment when such application has the character of stopping or affecting such judgment.”
Let me also add that it is the duty of a party who filed a motion to indicate his intention to move the motion or move it. If he fails to move it or try to move it and participates in the conduct of further proceedings, he cannot subsequently validly contend that the court refused to hear his application. I do not think it will be correct to expect the court to rummage through its file, bring out such application, remind the applicant of his pending application, ask applicant what he wants to do with it, then deal with it one way or the other. This court in FCE Okene vs. Ogbonna & Ors (2006) LPELR 5623 relied on the decision of the Supreme Court in Oforkere vs. Maduike (2003) 5 NWLR (Pt 812) 116 that “a court process which is not moved in court is as good as not filed, unless the process is not opposed by the respondent in which case the court will deem the motion as moved. Per Muhammad JCA pp. 11 – 12.
In IKECHUKWU VS. NWOYE (supra), this court held concerning the failure of a party to move a pending motion that “Where as in this case, the case is fixed on a date for adoption of written addresses, a motion on notice is filed on the eve of that date, served on one of the parties 30 minutes before commencement of sitting of Court , with no indication that the remaining party is served, the applicant does not indicate he wants to move the motion or ask for adjournment to enable him do so, the Court cannot suo moto hear the motion on notice or grant an adjournment not asked for. It is for the applicant to take steps to initiate the hearing of his or her motion on notice. The Court cannot do that for the applicant. It is only when the applicant wants to move his or her motion or applies for adjournment to move it and the Court refuses that it can be said that the Court has refused to hear the motion. To merely inform the Court of the pendence of the motion and say or do nothing further does not obligate the Court to suo moto hear the motion.”
In the light of the foregoing, I resolve issue No 3 of the appellants’ brief in favour of the respondents.
On the whole, this appeal succeeds on grounds one and two and fails on ground three. I equally set aside the judgment of the trial court and remit this case back to the trial court for the hearing of the pending motions. I make no order as to costs.