Oba Jacob Oyeyipo & Anor. V. Chief .J. O. Oyinloye (1987)

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KARIBI-WHYTE, J.S.C. 

This is a ruling on the motion by applicants, who were the Appellants in the substantive action, now dismissed, seeking an order of this Court that

“(i) the decision given herein by this Honourable Court sitting in Chambers on Wednesday the 12th day of November, 1986 be set aside;

(ii) the motion on Notice filed by the Respondent herein and dated the 24th day of October, 1986 be listed for hearing in open court or in such other lawful manner as the court may direct;

(iii) such further or other orders as this Honourable Court may deem fit to make.”

The grounds relied upon by the applicant were as set out in the schedule to the Motion stated as follows:-

“(i) The Appellant was not given any opportunity of being heard before the decision made by this court on 12th November, 1986 was made.

(ii) The making of the said decision otherwise than in open court (i.e. the court sitting in public) is a contravention of subsection 13 of Section 33 of the Constitution of the Federal Republic of Nigeria.

(iii) Even if (which is not conceded) it was permissible for the court to sit in Chambers to consider the matter or matters which led them to make the decision aforesaid, the Appellant ought to have been given the opportunity of making oral or alternatively written representation on questions of law and fact for the consideration of the Court.”

This application therefore seeks to reopen and set aside the judgment of this court dated 12th November, 1986, dismissing the appeal of the appellant against the judgment of the Court of Appeal. on a motion dated 24/10/86 filed by the Respondent relying on Order 6 rule 9(1) of Rules of Supreme Court 1985 for the dismissal of the appeal on the ground of want of prosecution by the appellant. The application was heard by this court sitting in Chambers, and without the attendance of parties or their counsel.

Although the facts in support of this application as averred in the supporting affidavit are very short and undisputed. they are significant in one important respect which I shall refer to later in this judgment.

On the 27th October, 1986, Respondents filed in this Court a motion on C notice dated 24th October, 1986 and brought under Order 6 rule 9 of the Rules of this Court, 1985, seeking an Order for the dismissal of the appeal against the decision of the Court of Appeal sitting in Kaduna delivered on 11/6/85 and filed on 11th day of June, 1985 for want of prosecution. The averments in support of the application was that the appellants who gave a notice of appeal on the 11th June, 1985, against the judgment of the Court of Appeal, Kaduna had not up to the time of the application to dismiss the action for want of prosecution on the 27th October, 1985, filed their brief of argument. It was averred that the record of proceedings of the matter appealed against was received by the appellant/applicants sometime in April, 1986. These averments have not been controverted in the affidavit of applicants in support of the motion before us to set aside the judgment dismissing the appeal.

Applicants admit that the notice of motion seeking an order to dismiss the appeal was served on them on the 27th October, 1986. In their supporting affidavit applicants have averred that no hearing notice was served on them in respect of the hearing of the application. The application to dismiss the appeal for want of prosecution was heard on the 12th November, 1986 and was granted.

Chief F.R.A. Williams S.A.N., filed a brief of argument in support of applicant’s application. Chief Afe Babalola also has filed a brief of argument on behalf of the Respondents. Both counsel relied on their briefs of argument, elaborating on issues where necessary. The only significant factor in the facts leading to the judgment was that although applicants were served with notice of motion to dismiss the action for want of prosecution, there was no hearing date on the motion, and there was nothing to indicate that it was to be heard in Chambers, and not in open court. It seems later that applicant relied on these factors in formulating the questions for determination which were based on the constitutional issue of whether applicant had a fair hearing.