Alhaji Tahiru Adisa V. Teno Engineering Limited (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the judgment of Bdliya J. sitting in the High Court of Borno State, Maiduguri Judicial Division wherein the Respondent as plaintiff obtained judgment in terms of all the reliefs he sought in his statement of claim. That judgment was dated 21st May, 1996 but signed on 24th May, 1996.

Aggrieved by the judgment, the Appellant as Defendant, filed a notice of motion seeking the indulgence of the Court below for the following reliefs:-

“An order granting leave extending time within which to apply to set aside judgment of this Honourable court in suit No.M/66/95 dated 21st May, 1996.

An order setting aside the judgment of this Honourable court in default of defence/pleading dated 21st May, 1996 in suit No.M/66/95.

An order for leave to the Defendant/judgment debtor/applicant to file his statement of defence out of time.

An order for leave to recall all the plaintiff/judgment creditor/respondent’s witnesses and to be cross examined by the Defendant/judgment debtor/applicant.

An order for leave to Defendant/judgment debtor/applicant to call his witnesses to testify.

And for any further order or orders as this Honourable Court may deem just to make in the circumstance.

Dated this 15th day of July, 1996”.

The motion which was supported by a 7-paragraph affidavit was accompanied by three exhibits namely: the drawn up orders of the learned trial Judge dated 13/6/96 in respect of the judgment, the defendant wanted to set aside; a proposed statement of defence; and the proceedings of the Borno State Rent Tribunal, holden at Maiduguri in which the parties to this appeal were parties thereat. The plaintiff hotly contested the motion and relied in so doing on a 13-paragraph counter affidavit and a further counter-affidavit of 7 paragraphs. (See pages 10 to 26 of the record of appeal). The motion which was taken on 10th September, 1996 had its ruling reserved to 4th October, 1996 but for reasons not stated in the record of appeal, appeal was further adjourned to 7th October, 1996. On that day, ruling was duly delivered and the motion on notice dismissed in its entirety. The concluding part of the ruling reads thus:

“There is nothing to show that the judgment of 21/5/96 was delivered without jurisdiction. All the conditions for it to hear the case were satisfied. So, in view of all that I have said in the foregoing paragraphs, I do not think the said prayer of the applicant can be granted. This Court is functus officio when it delivered its judgment on 21/5/96. It has no power to review or set aside the same. It is only the Court of Appeal that has the statutory jurisdiction to set aside same. Consequently, I cannot but to refuse the said prayer. Same be and is hereby dismissed.

With the failure of the 2nd prayer, I cannot see the need to delve into prayers 3 – 6. They are no longer relevant. They must and have collapsed with prayer 2. I would and do hereby dismiss them also”.

It is against the dismissal of his motion that the defendant appealed to this Court on three grounds of appeal dated 21st November, 1996 seeking to have both the ruling and judgment of the court below dated 13th November, 1996 and 21st May, 1996, respectively set aside and a retrial ordered before another Judge of the High Court of Borno State.