Samuel Igbinoba V. Madam Victoria Igbinoba & Ors (2002)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

A comedy of errors resulting to the rather bizarre ex-parte order, has been played out in the case leading to this appeal. The substantive action is yet to take off from the ground. Pleadings are yet to be filed, talk less of evidence. The drama all started when the plaintiffs took out a writ of summons against the defendant, claiming the sum of N4,272,333.50k as special damages for the destruction, which the defendant caused to the plaintiffs’ properties. Simultaneously, with the issuance of the writ on 26/1/98, the plaintiffs sought and obtained through an ex-parte application an order of the lower court, wherein the defendant was ordered to give security for this appearance to answer and satisfy any judgment that may be delivered against him.

The drawn up order reads as follows:

“… The defendant is ordered to give security for his appearance to answer, and satisfy any judgment that may be passed against him in this suit, in the event of his leaving the jurisdiction of the court before judgment. The security shall be in the form of bond executed by the defendant.

The defendant shall provide a surety to the bond and the surety shall have a house within the court jurisdiction. Such a surety shall leave copies of his title documents with the Assistant Chief Registrar of the High Court…”

On 30/1/98, the defendant filed a motion on notice in the High Court praying for two reliefs namely:

(a) Orders setting aside the issuance and service of the writ of summons; and

(b) An order of court, discharging the order obtained by the respondents wherein the appellant was ordered… ‘to give security for his appearance to answer and satisfy any judgment that may be passed against him…’ same having been improperly obtained.

The motion was supported with an 11 paragraph affidavit, which was deposed to by the defendant in person. In paragraphs 1, 3, 4, 5, 6, 7, 8, and 9 of the affidavit, in support of the motion, he deposed to the following facts:

1. That I am the defendant in the substantive suit presently pending before this Honourable Court.
2. That I received the writ of summons and the order made by this honourable court from the court bailiff on the 26th January, 1988.
3. That I have been informed by my counsel, P.O. Osemwenkha, Esq. whom I verily believe that the writ of summons does not state as required by the mandatory rules of court, the respective address of the plaintiffs.
4. That one of the orders served on me stated that: “The defendant is ordered to give security for his appearance to answer, and satisfy any judgment that may be passed against him in the suit, in the event of his leaving the jurisdiction of the court before judgment”.
5. That before the said order was made against me, no investigation or inquiry was conducted to authenticate the veracity of the applicant’s allegations against me.
6. That I was never asked to show cause why the aforementioned order should not be made against me before same was issued.
7. That I have never had or evinced any intention whatsoever of leaving the jurisdiction of this court, since I conduct my business from my base in Benin City.
8. That the action of the respondents in obtaining this order is presumptuous and prejudicial to a fair hearing, since it presupposes that there is a real likelihood of judgment being delivered against me without even hearing my own version of my innocence, the atrocities committed against my late father, who was murdered and myself.”

It is interesting to note that, despite being served with the motion papers together with the accompanying affidavit, the plaintiffs did not file a counter-affidavit, until learned Counsel for the defendant had argued his motion. It was at that juncture that learned Counsel for the plaintiffs applied for leave to file a counter-affidavit and he was so indulged before he made his reply. Thereafter, the learned trial Judge dismissed the application as lacking in merit. The defendant felt aggrieved with the decision and consequently filed his notice and 6 grounds of appeal. The defendant will hereinafter be referred to as the appellant, while the plaintiffs will be the respondents. Four issues were formulated in the appellant’s brief. The issues are:

(i) Whether the grant by the lower court of an absolute and final order directing the defendant/appellant “to give security for his appearance and satisfy any judgment that may be delivered against him” pursuant to an ex-parte application was lawful and a proper exercise of judicial discretion in the circumstance.

(ii) Whether the learned trial Judge was right in dismissing the application to vacate the orders hither made pursuant to an ex-parte application in view of the affidavit evidence before the court.

(iii) Whether the learned trial Judge was right in allowing respondents’ counsel to use a counter-affidavit in opposition to the applicant’s motion after applicant’s counsel had concluded arguments without giving any excuse whatsoever for so doing in the counter-affidavit.

(iv) Whether the absolute order made pursuant to an ex-parte application violated the applicant’s constitutional right to a fair hearing and pre-empted judicially the outcome of the substantive suit.