Modupe Davies V. Jide Thomas & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Lagos State per OLATERU-OLAGBEGI, J. delivered on the 18th day of November, 2004 in favor of the Respondent.

The Appellant brought a Motion on Notice with an Affidavit of Urgency dated and filed the 12th of February, 2013 seeking the leave of Court to apply for extension of time to comply with the condition of appeal in Suit No: ID/647/2000. The Respondents were served both the Application and, Hearing notices and they neither failed to either file a Written Address or Counter Affidavit for extension of time nor showed up in Court, even after the ruling they did not file any processes in opposition of the Application.

The Appellant however regularized their position by paying the necessary default fees. The Court in granting the prayers of the Appellant ruled on the 14th Day of March , 2013.The Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the Court and the Respondents did not file any Counter Affidavit to the objection. The Court ruled and set aside its earlier order granted on the 14th

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of March,2013 without first hearing the Appellant?s Notice of Preliminary objection challenging the jurisdiction of the Court.

Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal dated the 3rd of October, 2013 with (4) four grounds of appeal.

The Appellant’s brief of Argument which is settled by Wilson c. ENI of W.C.ENI & co. is dated and filed on 8th January, 2014, and the Reply Brief is dated and filed on 11th February, 2014. Three (3) issues were identified for determination as follows:

i. Whether a trial Court can sit on appeal over its own decision.

ii. Whether a Court can ignore an application challenging its jurisdiction and, proceed with the matter and give its final ruling thereon without hearing the preliminary objection challenging its jurisdiction.

iii. what is the duty of the Court when a party comes before it with an incompetent application?

?The Respondents Brief of Argument which is settled by Amusa Akeem, Ngozi Nwaeze of Johnson & Johnson Solicitors is dated 21st January 2014 and filed 22nd January 2014. The Respondent also formulated two (2) issues for

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determination as follows: