Monterry Nigeria Limited V. Sindeng Nigeria Limited (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

GEORGE OLADEINDE SHOREMI, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Delta State High Court delivered on 6/4/1998 dismissing the application of the appellant for extension of time within which to apply to set aside the order of court dated 19/10/95.

Setting aside the order of the court dated 19/10/95 as the same is null and void and of no effect whatsoever, the same having been obtained in breach of the principles of fair hearing the applicant herein and or his counsel having not been issued or served with any hearing notice, and or the motion on notice, having been heard in the absence of the applicant/appellant or his counsel.

The learned trial Judge refused to grant the application and accordingly dismissed same with cost.

The applicant now appellant appealed against the ruling/judgment by his notice and ground of appeal at pages 120-122. For ease of reference I quote verbatim the said grounds of appeal:

“Ground One:

The learned trial judge erred in law in failing to observe that entertaining and determining the motion for the defendant/appellant to furnish security in the absence of the defendant/appellant and/or its counsel led to a fatal denial of fair hearing.

Particulars of Error of Law

(1) On 18/5/95 the trial judge ordered that hearing notice be served on the defendant/appellant to enable it and/or counsel attend court. Same was never served on the defendant/appellant and/or its counsel.

(2) The hearing notice ordered was never issued much less served on the defendant/appellant or its counsel.

(3) The application/motion for defendant to furnish security was never served on the defendant or its counsel.

(4) The learned trial judge went on to entertain and determine the motion in spite of the fact that neither the motion nor the hearing notice was served on the defendant or its counsel.

(5) Consequently the whole proceedings including the order made by the trial court on the 19th day of October, 1995 ordering the defendant to furnish security, is in violent breach of the principles and tenets of fair hearing and was null and void and of no efficacy whatsoever.

Ground Two: