Fred C. Chiedozie V. Dayo Omosowan & Ors. (1998)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A,

This is an appeal against a decision of Olike J. of the High Court of Anambra State of Nigeria holden at Awka in suit No. AA/163/95 made on 3rd April, 1996, wherein he adjourned to the 3rd June, 1996 the substantive suit between the parties placed on the “undefended list” and fixed for hearing on 29th November, 1995, after he had heard and ruled on a preliminary objection challenging the competence or the action, and the jurisdiction of his court to entertain the action.

In the said ruling the learned trial Judge, Olike, J., dismissed the preliminary objection of the defendants and set down the substantive suit for hearing on 3rd June, 1998 with no order as to costs.

The defendants being dissatisfied with that ruling of 3rd April, 1996 applied for leave of the trial court to appeal against same to the court of Appeal, Enugu.

The said leave was granted whereupon the defendants then applied still to the trial court for an order staying further proceedings in the substantive suit pending the decision of the Court of Appeal on whether the court below had jurisdiction or not.

The said stay of proceedings was duly granted.

On the other hand, the plaintiff in whose favour the ruling in the preliminary objection was made, namely that his action was not statute barred, and that the court below had jurisdiction to entertain the suit, had a grouse against the learned trial Judge that the substantive suit which was placed on the “undefended list” was adjourned indefinitely to abide the outcome of the appeal on jurisdiction, instead of his being given judgment immediately. He therefore also appealed to this court against the decision of the: learned trial Judge adjourning his case to await the outcome of the defendants’ appeal. The pertinent portion of the trial court’s ruling complained against reads as follows:-

“The defendants have filed a motion to stay further proceedings in this case pending the determination in the Court or Appeal on the jurisdiction of this court to hear the substantive suit. As is well settled the issue of jurisdiction is crucial and should be determined first. The court will allow the defendants to obtain a decision on the question of jurisdiction from the Court of Appeal before taking further steps in the matter.”

Against the above ruling of the court below, the plaintiff has appealed to this court on two grounds which without their “particulars” read as follows:-

“1. The trial court erred in law in not hearing the case as undefended and entering judgment in the undefended list when the case came up for hearing on 3rd June, 1996 and instead adjourning the matter.

2. The trial court erred in law in adjourning the case suo motu on the grounds that there was a motion seeking a stay of proceedings in the matter pending the decision of the Court of Appeal and adjourning the said motion to abide the outcome of the motion.”

From the above two grounds, the plaintiff, who will hereinafter be referred to as the “appellant”, formulated the following four issues for determination.

Issues for determination

1. The appellant most respectfully submits the following issues for determination in this appeal:-
2. Whether the legal position is that an issue of jurisdiction which can be raised at any time and at any stage of the proceedings can also be raised any how (Italics supplied) that is to say even without due process and once raised must all other proceedings abate and await its consideration and determination by the appellate courts (grounds 1 and 2).
3. Whether the trial court has the discretion in a suit placed for hearing in the undefended list under the High Co un Rules No. 27 of 1988 of Anambra State to adjourn the suit where the defendant has not filed a notice of intention to defend nor an affidavit disclosing a defence on the merits (ground J).
4. If the answer to No.2 issue is in the positive then whether the trial court in the circumstances of this case exercised that discretion judicially and judiciously when it adjourned the hearing suo motu, without any application by the defendant for leave to comply with the said rules and for the reason given by it without consideration for the competing rights of both the defendant and the plaintiff for justice. (Grounds 1 and 2).
5. Whether the appellant is not therefore entitled to have his case heard in the undefended list and judgment entered in his favour.”

On the other hand, the defendants who will hereinafter be referred to as the “respondents” formulated only one issue as follows:-

Issue for determination