[2017]DLCA4922 • December 21, 2017 • Court of Appeal
ISSIFU AYARIGA FATI AYARIGA vs. MICHAEL PUTO SUGRE
In 2006, the 1st defendant/appellant sold a house with sitting tenants to the plaintiff/respondent. The 2nd defendant, sister to the 1st defendant, lived in part of the house rent-free and was later sued jointly with the 1st defendant for possession. The plaintiff sued the 1st defendant for recovery of the purchase price due to failure to yield possession. The writ incorrectly described the house number, which the 1st defendant denied owning. The 2nd defendant was joined as a party claiming ownership. The trial proceeded with multiple amendments and motions, with the 1st defendant often absent and served by substituted service. Judgment was entered against the 1st defendant in his absence.
read moreAYEBI, JA 1. The sole issue for resolution in this appeal is whether or not trial judge conducted the trial in accordance with the provisions of Rule 1 of Order 36 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) on “Proceedings at the Trial”. That rule is headed “Failure to attend at trial”. The rule provides: “Subrule (1): where an action is called for trial and all the parties fail to attend, the trial judge may strike the action off the trial list. (2): Where an action is called for trial and a party fails to attend, the trial judge may (a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim if any, and allow the plaintiff to prove the claim, (b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any, or (c) make such other order as is just”. 2. In view of the fact that the issue to be resolved is procedural rather than factual, the...