Citec International Estate Limited & Ors V. Josiah Oluwole Francis & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

The point of law involved in this ruling is a very short one. It is not new. However, it is a point of law of immence constitutional importance. The point of law we are called upon to decide is whether or not the order of this court made in Chambers on the 28th of September, 2011 granting the Appellants/Respondents leave and extension of time to file this appeal ought to be set aside ex debitio justitae.

By a motion on notice dated 9th September, 2012 and filed on the same date, the 1st – 4th, Respondents/Applicants prayed for the following orders:-

“1. AN ORDER setting aside the Order/Ruling made by this Honourable Court in Chambers on the 28th of September, 2011 wherein the Appellants/Respondents mere granted the trinity prayers to appeal against the decision of the Court of Appeal, Abuja Division in Josiah Oluwole Francis & 3 Ors V. CITEC International Estates & 6 Ors, CA/A/179/M/2007 contained in the Motion on Notice dated and filed on the 5th of April, 2011.

2. AN ORDER restoring the Motion on Notice dated and filed on the Eth of April, 2011 to the Cause List for hearing on its merits.”

The grounds upon which this application is predicated are as stated in the motion paper which are as follows:

1. On the 5th day of April, 2011, the Appellants/Respondents filed a Motion on Notice at the Registry of this Honourable Court containing the trinity prayers to appeal against the ruling of the Court of Appeal, Abuja Judicial Division that was delivered on the 7th day of March, 2011 in Francis & 3 Ors V. CITEC Estates & 6 Ors; CA/I/179/M/2007.
2. Upon filing the said Motion on Notice on the said 5th day of April, 2011, instead of allowing the registry of this Honourable Court to serve the said process, on the Respondents/Applicants, Counsel to the Appellants/Respondents, MESSRS OLUMIDE AYENI & CO. undertook to effect personal service.
3. Despite this undertaking, Counsel to the Appellants/Respondents, MESSRS OLUMIDE AYENI & CO, did not effect service on the Respondents’ Counsel until the 20th of September 2011 (more than 5 clear months after filing).
4. Under the Supreme Court Rules, the Respondents/Applicants had a duty to file a Reply Brief and/or Counter Affidavit if they intended to oppose the Motion on Notice within 7 days of their being served with the Motion on Notice.
5. Since the Applicants/Respondents hail good grounds to oppose the application dated the 5th of April, 2011 but served on their Counsel on 20th of September, 2011, the Applicants/Respondents duly filed and served the Reply Brief and their Counter Affidavit to the Motion on Notice on the 27th of September, 2011.
6. Unfortunately, because the Appellants/Respondents delayed the service of the application to just eight days before it was to be heard in Chambers, the Counter-affidavit and reply brief filed by the Respondents/Applicants on the day before the motion was to be heard in Chambers were not brought to the attention of the Court and this misled this Honourable Court into granting the Motion on Notice dated and filed on the 5th of April, 2011.
7. The Ruling of this Honourable Court dated the 28th of September, 2011 granting the prayers contained in the Motion filed on the 5th of April, 2011 in SC.116/2011 is a nullity due to the fact that the Applicants/Respondents were not afforded their right to fair hearing and the Rules of this Honourable Court were breached.
8. The Ruling of this Honourable Court dated the 28th of September, 2011 granting the prayers contained in the Motion filed on the 5th of April, 2011 in SC.116/2011 ought to be set aside and the said Motion listed afresh for hearing.

In support of this application is an affidavit of 17 paragraphs, deposed to by one Isiaka Popoola, a litigation clerk in the Chambers of Applicants’ Solicitors. Annexed to the affidavit are 5 exhibits numbered 1 – 5 which includes Exhibit “2” the said Order sought to be set aside. Also in support is a 24 paragraphs further affidavit with exhibits 6 – 13 attached. There is also a 2nd further affidavit of six paragraphs deposed to by one Mike Dogo ‘M’ who also deposed to the further affidavit. He is also a litigation clerk of the Applicants’ Counsel. One exhibit is annexed to this latest affidavit.

In response, the Appellants/Respondents filed a six paragraphed Counter Affidavit in opposition to the application. It was deposed to by one Anietie Udo Esq., legal practitioner in the Law Firm of Messrs Olumide Ayeni & Co., one of the Counsel retained by the Appellants. Appellants/Respondents also filed a 2nd counter affidavit of 9 paragraphs with one exhibit annexed and tagged “Exhibit 14 Series.”

The background facts leading to the filing of the motion giving birth to this Ruling are as encapsulated both in the grounds and the various affidavits filed in support. Having set out the grounds upon which the application is predicated and in view of the fact that the facts deposed to in the affidavits are in tandem with the grounds, it may not be necessary to reproduce the affidavits again except as may be necessary to make reference to in the course of this ruling. There is no dispute as to the facts.

Both parties filed written addresses which were adopted on 2nd December, 2013 when this application was heard. But before the hearing of the application, the Learned Senior Counsel for the Appellants/Respondents drew the court’s attention to the Notice of preliminary Objection filed by them on the 15th of December, 2012.

The said preliminary objection was taken before the motion itself was heard. I intend to resolve first the issues raised in the preliminary objection.

The Notice of Preliminary Objection states:

TAKE NOTICE that the Appellants/Respondents shall at or before the hearing of the Notice of Motion dated and filed on 9th February, 2012 in Appeal No.SC/116/2011 by the 1st – 4th Respondents/Applicants between Citec International Estates Limited & 5 Ors V. Josiah Oluwole Francis & 4 Ors raise a Preliminary Objection to the jurisdiction of this Honourable Court to hear, entertain and/or determine the said Notice of Motion and shall pray this Honourable Court for:

AN ORDER dismissing the said Notice of Motion for lack of jurisdiction and for constituting a gross abuse of the process of this Honourable Court.”

The grounds upon which the preliminary objection are predicated are as follows:-