Alhaji Asimiyu Ado V. Waheed Fadairo Ado & Ors (2016)

LawGlobal-Hub Lead Judgment Report

OBIETONBARA DANIEL-KALIO, J.C.A. 

On 27/2/13 a Brief proceedings before the Lower Court culminated in the judgment of that Court. The proceedings under reference read as follows:-
Parties absent
Mr. Aiyeokutan applies for striking out of the entire suit. The Claimant has not been diligent in the prosecution of his case, I also pray for the striking out of the Counter-Claim my own case. We are no longer willing to prosecute it.
Court:- In view of the prayer of Mr. Aiyeokutan before this Court, This suit is hereby dismissed.”

Following the above judgment, the Appellant became aggrieved. He had in his statement of claim claimed inter-alia that he be declared as the proper person to be recognized as the Mogaji/Baale of Ado family of Oke-Ado, Ibadan. Now, his case had been dismissed.

In his Notice of Appeal filed on 3/4/13, he sought to have the judgment set aside on two grounds, namely;
“GROUND ONE
The learned trial judge erred in law when she dismissed the Appellant’s claim when no such prayer was before the Court.
GROUND TWO
The learned trial judge lacked the

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jurisdictional power to dismiss the Appellant’s case No I/642112.”

Both grounds were accompanied with particulars of the errors claimed to have been committed by the learned trial judge.

The Appellant’s Brief of Argument was filed on 18/11/13 but deemed by an order of this Court, as properly filed and served on 27/1/14. Following the failure of the Respondents to file their Brief of Argument, the Appellant filed a motion on notice on 11/1/16 seeking to have the appeal set down for hearing on the Appellant’s Brief alone. The motion was granted on 28/1/16.

Following the order of the Court allowing the appeal to be heard on the Appellant’s Brief alone, the matter was adjourned to 1/3/16 for the hearing of the appeal. A Hearing Notice was served on the Respondents through their learned counsel E. M. Aiyeokutan Esq on 24/2/16. However the Respondents and their counsel failed to appear in Court for the hearing despite the service of the Hearing Notice. In the circumstances, the appeal was heard on the Appellant’s Brief alone.

The Appellant’s Brief of Arguments was prepared by I. A. Saka Esq. Two issues for determination were distilled from the

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two grounds of appeal. The two issues are
1. Whether from the evidence contained in the record of the proceedings, the learned trial judge was right to have dismissed the entire suit.
2. Whether the judgment of the learned trial judge delivered on 27th February, 2013 is not worthy of being set aside.

On the first issue, it was submitted that there is nothing in the record of the Lower Court to show that the Appellant and his counsel were aware that the case was to come up on 27/2/13. It was contended that by reason of the Appellant not being aware of the 27/2/13 date, his right to fair hearing prescribed by Section 36 (1) of the 1999 Constitution had been breached. Learned Counsel also submitted that the Court made the order of dismissal of the Appellant’s suit without considering pending applications before it such as the one for joinder of the Olubadan-in-council, the one for extension of time to file a Reply to the Statement of Defence, the motion for interim injunction and one other motion for an interlocutory injunction. Learned counsel cited the cases of Bamisile v. National Judicial Council (2013) All FWLR Part 678 p.911 at 933; Ovunwo v.

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