Dr. Benedict Imharobere Omeike V. Pharmacist Vivian Awele Omeike (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 Ruling of S. O. Oigbokie, J. of the Benin Judicial Division delivered on 20/7 /2010.

On 22/2/2010 the respondent filed a motion on notice at the High Court of Edo State, Benin Division, against the appellant seeking an order setting aside the order of custody granted in favour of the appellant by the High Court of Edo State, Ekpoma Judicial Division in Suit No. HEK/41D/06 on 26th February, 2008.

Upon service of the aforesaid motion on him, the appellant on 15th March, 2010 filed a motion challenging the jurisdiction of the lower Court to hear and determine the aforesaid motion.

The trial court heard the aforesaid appellant’s motion and in a reserved ruling delivered on 20th July, 2010 it dismissed the motion.

Being dissatisfied with the aforesaid ruling, the appellant on 27th July, 2010 filed his appeal against it.

In his Ruling the trial Judge after hearing parties to the application concluded in his Ruling thus:

“Even if the section of the law under which she came to this Court does not avail her, she also brought this application under the inherent jurisdiction of this court and alternatively she prayed this cause “for such order or other orders as this Honourable Court may deem fit to make in the circumstances of this case”. In the case of Dakabiri Kim vs. Emefor (2009) All FWLR Pt. 494, 1431 p. 1445, per Onnoghen JSC paragraphs G-H. The Court being an impartial arbitrator must always consider both sides of a case before coming to a conclusion, not just the case of one of the parties, as to do so will result in grave injustice (summarized in ratio 4).

In the light of the aforementioned facts and authorities cited I am of the humble opinion that the judgment of the Ekpoma High Court delivered on 22/2/2008 was not on its merits, hence it was not final, as both parties were not heard. The judgment being a nullity due to the irregularity earlier referred to, the application for an order striking out this suit is hereby refused and the application dated 15/3/2010 is dismissed with no order as to costs. This motion on Notice dated 15/3/10 is hereby fixed for hearing on the 30th day of September 2010. There is no order as to costs.”

The grounds of appeal are contained in the Notice of Appeal dated 24/7/2010, filed on 27/7/2010 are as follows without particulars.

“Ground 1

The learned trial Judge erred in law when he held that he had jurisdiction to hear the Applicant/Respondent’s undated motion on notice filed in the lower court on 22nd February, 2010 notwithstanding the subsisting judgment of the High Court of Edo State, Ekpoma Judicial Division delivered in Suit No. HEK/41D/06 on 26th February, 2008.

Ground 2

The learned trial Judge erred in law when he set aside the judgment of the High Court of Edo State delivered in Suit No. HEK/41D/06 on 26th February, 2008 when the trial Court was completely lacking in competence and authority to so act.