Borno College of Agriculture V. Mallam Yerima Malluma (2004)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the Ruling of Kashim Zanna (CJ) High Court of Justice, Borno State delivered on 12th May, 2009 in a motion on notice No. M/235M/2000 dated 5th day of August but filed on 6/8/2008.

The facts of the case as can be gleaned from the Records are that: The Respondent as Plaintiff instituted suit No. M/82/97 against the Appellant as Defendant in an action founded on wrongful termination of employment. The matter proceeded to trial and after which, the learned Chief Judge, in a judgment delivered on 23rd May, 2007 found in favour of the Respondent.

The Appellant did not appeal against the said judgment delivered on 23rd May, 2007 but instead filed a Motion No. M/235/2008 praying for the following reliefs:
“1. An order for extension of time within which to apply to set aside the judgment of this Honourable Court delivered on 23/5/2002 in Suit No. M/82/97.

2. An order setting aside the aforesaid judgment obtained by the Plaintiff/Respondent in the absence of the Defendant/Applicant.

3. An order relisting the said suit No. M/82/97 for trial on the merit.

4. And for such further order or orders as this Honourable court may deem just to make in the circumstances.”

The motion is supported by a five paragraph affidavit with exhibits marked as exhibits A-E. A further affidavit and further further affidavit were filed all in support. These affidavits can be found on pages 3 – 16 and 17 – 19 of the records respectively.

The Respondent did not file any counter-affidavit. He responded to the Appellant’s arguments on point of law.

In a well-considered Ruling delivered by the learned trial Chief Judge on 12/5/2009, he found for the Respondent and held inter alia thus:

“In the final result, the applicant having failed to establish its entitlement to the first two reliefs sought, there is no reason to grant the 3rd by relisting the suit. On the whole, this application is utterly devoid of any merit and I must and do hereby dismiss it with N2,000 costs in favour of the respondent.”

Aggrieved by the said ruling, learned Counsel to the Appellant filed a notice of appeal on 25/5/09 consisting of five grounds and sought for the following reliefs:
“To set aside the Ruling of the learned trial Chief Judge of Borno State and grant the appellant’s relief sought for in motion No. M/019M/2009 at the trial.”

In a brief, settled by B. Adamu of Counsel, two issues were distilled from the five grounds as follows:
“1. Whether or not the appellant satisfied the conditions required by law for the learned trial judge to exercise his discretion in favour of the appellant and to grant the application as prayed. (Grounds 1, 2, 3 and 4)
2. Whether or not the learned trial judge did apply principle of law governing stay of execution to appellant application. (Ground 5)”

For his part, learned Counsel to the Respondent, Mr. John S. Mshelia formulated alone issue for determination in his brief thus:
“Whether or not the learned Chief Judge came to the right conclusion in the circumstances of the case.”