Etsako West Local Government Council V. Isa Oshiobugie Christopher (2014)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

A.T. Ndoma, Esq. of counsel for the plaintiff [the respondent herein], took out a Writ of Summons from the Edo State High Court of Justice, holden at Auchi, [the trial Court], against the defendant [appellant herein]. The endorsement on the Writ reads as follows:

“The plaintiff claims against the Defendants as follows:

1. Specific performance of the Defendant’s contractual obligations in Contract Number EWLG/CON.17/25 at 12-6-95; in favour of the plaintiff.
2. An Order for payment of the sum of Four Million NINE HUNDRED and TWENTY FIVE THOUSAND NAIRA [N4,925.000.00] by the Defendant to the plaintiff along with 10% interest of the indebted sum per every subsequent month thereof, until Judgment is entered.

The Writ was issued on the 22nd of June, 1999. It was alleged by the respondent in his amended brief served with the respondent’s Writ of Summons that the defendant did not file a memorandum of appearance as required by the Rules of Court. Thereafter, the respondent applied to the trial Court for judgment in default of appearance by the appellant. Judgment as per the claim of the respondent was accordingly entered on 23rd of May, 2000.

The appellant applied to the trial Court on the 4th of September, 2000, to get the default Judgment set aside. In his ruling, on the 6th of May, 2002, AMAIZE, J., to whose court the matter was transferred, refused the appellant’s application. The appellant then filed an appeal against the said ruling. The appeal was not prosecuted within time permitted by the Rules as brief of argument was never filed by the appellant. The respondent filed a motion to the Court below for the appeal to be struck out for want of prosecution. The motion was taken on the 7th of February, 2005, and the Court below having heard the respondent dismissed the appeal for want of prosecution.

Aggrieved with the decision of the Court below, the appellant appealed to this Court. Meanwhile, the appellant filed a motion for stay of execution of the Judgment of the Court below pending the hearing of the appeal. That motion, too, was struck out by the Court below for incompetence.

In this Court, briefs were settled by the parties. On the hearing date, learned counsel for the respective parties each adopted and relied on the brief filed. The learned counsel for the appellant, Professor Ekpu, set out the following issues for determination by this Court:

“1. Whether the Court of Appeal acted lawfully when it granted a prayer not claimed in the motion paper before it. [This issue encompasses ground 1 of the appeal].

2. Whether or not the conditions precedent to the exercise of jurisdiction to order a dismissal under Order 6 Rule 10, Court of Appeal Rules existed as at 7/2/05 when the appeal was dismissed by the Court of Appeal. [This issue encompasses ground 3 of the appeal].
3. Whether or not the order dismissing the appeal made by the Court of Appeal was in breach of the rule of fair hearing, and therefore unconstitutional, null and void. [This issue encompasses ground 4 of the appeal].

Whether the motion before the Court of Appeat was competent given that it was brought under non-existent rules. [This issue encompasses ground 2 of the appeal].

My lords, I think I should consider appellant’s issue No 3 first which poses a challenge against the competence of the Court below to entertain the Motion which led to the dismissal of the appellant’s appeal That issue is related to ground No.4 of the Grounds of Appeal which reads as follows:

“4. The Court of Appeal erred in law in entertaining the plaintiff’s motion in the absence of the motion and/or hearing of it was served on the defendant on the last working day preceding the hearing date.

PARTICULARS

[a] The notice of the hearing of the motion and the Motion itself were served on the defendant in the afternoon of Friday, 4th February, 2005 and the Motion was heard on Monday, 7th February, 2005.”

Appellant’s issue No.3 as above tallies with respondent’s issue No 3.