All Progressive Congress (Apc) V. Engineer George T. A. Nduul & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

This is an interlocutory appeal against the ruling of the Court of Appeal, Makurdi Division which was delivered on the 13th April, 2016. Learned Counsel for the 1st Respondent herein who was the Appellant at the Lower Court, by a motion on notice filed on the 11/4/2016 sought for the following prayers:

An order of this Honourable Court to hear the Appeal in Appeal No.CA/MK/16/2016 between Engr. George T. A. Nduul v. Barr. Benjamin Wayo solely on the Appellant/Applicants Brief of Argument.

When this application came up, the 1st Respondent who was the Applicant was in Court.

The Appellant herein and the 2nd and 3rd Respondents who were Respondents at the Lower Court were absent. The Registrar informed the Court that the Respondents were served with hearing notice on the 23rd March, 2016.

Since the Respondents were on notice and failed to put up appearance, the Lower Court proceeded to hear learned counsel for the Appellant who moved in terms of the sole prayer as reproduced elsewhere in this judgment.

Thereafter their lordships

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Omoleye, Ogbuinya and Jombo-Ofo JJCA ruled as follows:

The Appellant/Applicants application is granted as prayed. The appeal is adjourned to 28/04/2016 for hearing. Hearing Notice to issue on all the Respondents.

It is against this ruling that the Appellant who was the 2nd Respondent at the Lower Court has brought this appeal. Its notice of appeal at pages 51-54 of the printed record of this appeal contains three grounds of appeal. I reproduce these grounds of appeal without their particulars as follows:

1. The Lower Court (Court of Appeal) erred in Law when it heard the application of the 1st Respondent and granted same, that the Appeal of the 1st Respondent before it be heard on the 1st Respondents brief, without giving the Appellant fair hearing and this occasioned a miscarriage of justice.
2. The Lower Court erred in Law, when it came to conclusion that the Appellant, was served with the requisite process before it, warranting the hearing of the appeal of the 1st Respondent on his brief of argument alone, and this occasioned a miscarriage of justice.
3. The

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Court of Appeal lacked the jurisdiction to have entertained the Application of the Appellant, to have his appeal heard on the basis of his brief of argument alone, when the brief of argument was not served on the Appellant and even the application that was heard and granted by the Lower Court was not ripe for hearing for the Lower Court to have entertain (sic) same against the 2nd respondent before the Lower Court.

Parties filed and exchanged briefs of argument. At page 2 of the Appellant’s brief of argument settled by V. T. Uji Esq, of Counsel for the appellant, and filed on 13/6/2016, but deemed filed on the 11/1/2017, two issues for determination of this appeal were formulated as follows: