Chief J. Olorunyolemi & Anor. V. Mrs Helen Akhagbe (2010)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

This is an appeal against the decision of the Court of Appeal, Lagos Division, which dismissed the appeal before it for lack of filing briefs of argument. In his amended statement of claim the respondent in this appeal claimed the following reliefs jointly and severally against the appellants/defendants: –

“1. That by virtue of the Nigerian Legion Decree No. 37 of 1988 and the Regulations made there under, the Plaintiff is the rightful person to be Commandant-General of the 2nd defendant and entitled to exercise the powers and functions thereof.

2. The merger of the office of Commandant-General, with that of the Chairman of the Council, of the 2nd defendant and the purported exercise of the powers and functions of the two offices by the 1st Defendant is unlawful, illegal, unconstitutional, null and void.
3. That the plaintiff is still a member and employee of the 2nd defendant entitled to his salaries and benefits per month from, the 1st of July, 1991 till the date of judgment and thereafter.
4. That the purported deployment or adoption of deployment of the plaintiff by the 1st defendant to Benin vide his letter NL/OP/32/18 of 11th June, 1991 and his (sic) purported bar of the plaintiff from the premises of the 2nd defendant together with refusal to pay plaintiff’s claims, salaries and benefits since July, 1991 as an unlawful interference with plaintiffs’ membership and contractual rights with the 2nd defendant and same amounts to a breach of contract.
5. An order directing the 1st defendant with the National Council of the 2nd defendant to appoint the Plaintiff Commandant-General of the 2nd defendant, and pay him his outstanding claim of N24,044.20 as special damages together with all his salaries and benefits from the 1st of July, 1991 till judgment.
6. N100,000 general damages against the defendants for unlawful interference with the Plaintiff’s aforesaid membership/contractual rights.”

After evaluating the evidence before him and considering the addresses of learned counsel, the learned trial Judge granted the above reliefs after giving judgment to the respondent, as follows:-

“Consequently therefore the claim of the Plaintiff succeed and JUDGMENT is hereby given in favour of the Plaintiff against the two Defendants jointly and severally as per his amended Statement of Claim with damages awarded at N75,000.00″.

The defendants not satisfied with the decision appealed to the Court of Appeal. The notice of appeal containing eleven grounds of appeal was filed on 21/9/99. On 1/3/01 the respondent/plaintiff filed a motion on notice seeking an order dismissing the appeal. On 5/6/01 the Court of Appeal took the motion and dismissed the appeal for want of diligent prosecution. This appeal before us is against the order of dismissal. As is the practice in this court and in compliance with the rules of this court the learned counsel for the parties exchanged briefs of argument, which were adopted at the hearing of the appeal. The following issues for determination were formulated in the appellants’ brief of argument and they are:-

(i) Whether the Records of Appeal from the High Court of Lagos State have been completely transmitted to the court below as at the date of dismissal of the appeal for default of filing Brief of Argument.

IF THE ANSWER IS IN THE NEGATIVE

Whether the court below had any legal authority or jurisdiction to dismiss the appeal.

(ii) Whether the Motion on Notice dated 1st March 2001 is competent.

(iii) Whether on the face of the records any process emanating from the court below was served on the Appellants before the dismissal of the appeal.

IF THE ANSWER IS IN THE NEGATIVE

Whether the court below had jurisdiction as it is assumed to entertain the Motion on Notice for dismissal of the appeal.”

Two issues for determination were formulated in the respondent’s brief of argument, and they are:-