Clement Ihebuzoaju Ezeanochie V. Igwe Ignatius O. Ofobuike & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE LOKULO-SODIPE, J.C.A.: (Delivering the Leading Judgment)

This appeal is against the order dismissing suit No.AA/42/89 – Clement Ihebuzoaju Ezeanochie vs. Igwe Ignatius O. Ofobuike & Anor., made on 14/2/1990, by Hon’ Justice M’N’ Ekwerekwu (hereafter simply referred to as “the learned trial Judge”) of the High court of Enugu state of Nigeria (hereafter simply referred to as “the lower court”).

The above mentioned suit No. AA/42/89 was instituted by the Appellant against the Respondents vide “claim” dated 1/2/1989 and filed on 17/3/1989. Therein, the Appellant claimed declarations in respect of the Ichie of Isieke kindred title, injunction and damages, against the Respondents jointly and severally. On the same date the “claim” was filed, the Appellant filed a motion ex-parte seeking for injunctive reliefs against the Respondents as well as a motion on notice for the same reliefs being sought in the motion ex-parte. The Respondents duly caused appearance to be entered for them in the suit of the Appellant.

They also filed a counter affidavit apparently in response to the motion on notice of the Appellant that was served on them; and this provoked the filing of a further affidavit by the Appellant. The Appellant’s motion on notice came up for hearing before the lower court on 12/10/1989, and was on that day adjourned till 19/2/1990 for continuation of hearing. Before the adjourned date of the Appellant’s motion on notice, the Respondents on 29/1/1990 filed a motion on notice dated 23/1/1990 praying the lower court for “an Order of Court dismissing the Suit for Plaintiff’s failure to file the statement of claim”. Having first noted to the effect that the Respondent in the motion (i.e. Appellant herein) though served was not represented by counsel, the lower court proceeded to entertain the motion before it on 14/2/1990.

The Applicants in the motion (Respondents herein), duly moved the motion on notice brought pursuant to order 8 Rule 20 and Order 9 Rules (9)(2) and 42(1)of the Anambra state of Nigeria High Court Rules 1999 (then applicable in Enugu state), and prayed the lower court to dismiss the suit because the plaintiff/respondent (i.e. Appellant) failed to file a statement of claim. The learned trial Judge granted the application and dismissed the suit with N50.00 costs to the applicants. (i.e. Respondents) and against the plaintiff/respondent (i.e. Appellant). (see pages 32 and 33 of the record of appeal).

Being aggrieved by the order dismissing his suit, the Appellant lodged a Notice of Appeal dated 26/2/1990 and filed on the same date against the decision of the learned trial Judge in that regard. The Notice of Appeal contains two grounds of appeal. I consider it expedient to reproduce the grounds of appeal and their respective particulars as there will be need to examine them closely or thoroughly, later in the judgment. The grounds of appeal and their respective particulars read thus: –

“GROUNDS OF APPEAL

(1) ERROR IN LAW: The learned trial judge erred in law in dismissing suit no.AA/42/89; which was then pending before him, since no evidence on the substantive suit had been adduced.

PARTICULARS OF ERROR

(i) The plaintiff did not file his pleadings within the time prescribed by the Anambra state of Nigeria High Court Rules, 1988

(ii) The defendant’s then applied to the trial court under the Rules for dismissal of suit by virtue of order g rule 421 of the said Rules.

(iii) The application was served on one of the typists of the appellant’s counsel who failed to draw the attention of the appellant’s counsel’s diary.

(iv) No application for extension of time was filed by the appellant or counsel praying the court for extension of time within which to file appellant’s pleading.

(v) Neither the appellant who did not know of the application for dismissal, nor his counsel was present in court on 14n of February, 1990 when the application for dismissal was taken.