Goddy Edosa V. Eguagie Ehimwenma & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the leading Judgment)

This is an application dated 17/9/2012 filed on 18/9/2012. It is for the following orders:

1. An order extending the time within which court can set aside the order dismissing the Appeal CA/B/231/2009 on 23rd day of February 2011 for failure of the Appellant to file his brief of argument.
2. An order setting aside the order of this Honourable court dismissing the appeal of the Appellant/Applicant in CA/B/231/2009 on the 23rd day of February 2011.
3. An order relisting the Appeal No.CA/B/231/2009 to the cause list for hearing on its merit.
4. An order staying the execution of the judgment of the lower court delivered on 12th day of May 2009 in Suit No. B/378/2001 by Justice E. O. Ahamoje of High Court of Justice, Benin City, Edo State.
5. An order extending the time within which the Appellant/Applicant may file his Brief of Argument the time within which to file same having expired.
6. An order deeming the said Brief of Argument as properly filed and served the appropriate filing fees having been paid.

The application is premised on the following grounds:

1. The Appellant/Applicant counsel mistakenly filed the Brief of Argument of the Appellant on 8th day of April, 2011.
2. That the mistake of filing the brief of argument without seeking the order of this court when time has expired was that of counsel to the Appellant/Applicant and not that of Appellant/Applicant.
3. That the former counsel for the Appellant Dan Oko (SAN) was served with hearing notice fixing the case for 23rd day of February, 2011 and the said notice was dated 8th of November 2010.
4. That subsequently this Honourable court issued another hearing notice fixing the case not for 23rd day of February but for 11th day of April, 2011 in respect of the same subject matter.
5. That this court not aware of the hearing notice issued to the Appellant/Applicant for 11th day of April, 2011 sat on 23rd day of February 2011 and dismissed the crucial appeal of the Appellant/Applicant.
6. The new counsel for the Appellant/Applicant mistakenly filed the brief of argument of the Appellant/Applicant on 8th day of April, 2011 without knowing that the time to file same had since expired.
7. The Appellant has since filed his brief of argument showing his seriousness to pursue this appeal and a copy of the former brief of argument is in the court file.
8. That Appellant/Applicant has prepared a new brief of argument and same is attached with several copies for the purpose of the deeming order.
9. The Respondents have on the basis that this court has dismissed the appeal of the Appellant threatened to fifa the appellants’ properties except this court grant this application.

In support of the application is a 20 paragraph affidavit with several exhibits. The applicant also filed a further affidavit of 10 paragraphs on 5/11/12. In opposition to the above, the Respondents filed a counter-affidavit of 15 paragraphs with several exhibits.

The Applicant’s Counsel Mr. E. O. Afolabi at the hearing of the application argued that the Applicant and his former Counsel were misled by two Hearing Notices issued by this court. One was for the parties to appear on 23/2/2011 and a later one was served for appearance on 11/4/2011. The Applicant obeyed the later summons. Unknown to the Applicant, the appeal was struck out on 23/2/11, while he filed his Appellant’s brief on 8/4/11. The Applicant attached as exhibits the Certified True Copies of the two Hearing notices issued to the Counsel for the Applicant. He insisted that no letter was issued to cancel the later date of 11/4/2011. He submitted that there has been a breach of fair hearing that rendered the whole proceedings dismissing the appeal null and void. He urged the court to set aside the order of dismissal and restore the appeal.

Learned Respondents’ Counsel Mr. Eimiuhi argued that the second Hearing Notice though issued was never served on any of the parties. He insisted that the Applicant never proved service of the 2nd Hearing Notice on them before 23/2/11 and that the facts of another Hearing Notice are being cooked up. He urged the court to dismiss the application.

On a careful consideration of the affidavit filed by both parties, the Grounds, and exhibits attached to support and oppose this application, it is apparent that two different Hearing Notices were served on the Applicant. The Exh. ‘D’ attached to the Applicant’s affidavit shows a Hearing Notice for service on E. O. Eimiuhi Esq. designated as the Respondent/Applicant.

Even though the Hearing Notice was not the one meant for the Applicant to this motion, it is obvious that it was issued by this court to command the appearance of the parties in respect of the dismissed appeal for the 11th April, 2011. It clearly overrode the previous hearing notice issued to the Applicant for 23/2/2011. The contents of the counter affidavit are not sufficient to debunk the affidavit of the Applicant. In my humble view, the situation here is very clear. On 23/2/2011, when this court dismissed the appeal for want of diligent prosecution and failure to file brief within time, in the absence of the Appellant/Applicant, there was breach of the one of the rules of natural justice, audi alteram partem. The Appellant/Applicant because of the misinformation regarding the date for hearing was absent through no fault of his. It would be manifestly unjust to shut the Applicant out from the seat of justice in the circumstances.

The facts and total circumstances of this case make the principles of fair hearing applicable. The Appellant/Applicant before the case was dismissed had compiled and transmitted the records of appeal and the failure to turn up on a date when he was tacitly informed the case would not go on and his subsequent filing of his brief of argument in my view shows that this is a circumstance in which the principles are applicable. Therefore in this case the other party was not given opportunity to be heard on the date the appeal was dismissed, there is absence of fair hearing and the effect on any legal proceedings is that the proceedings must be declared null and void. See ORUGBO & ANOR v. BULARA UNA & ORS. (2002) 9 SCNJ 12; EKPETO & ORS. v. IKONO WANOGHO (2004) 12 SCNJ 220; OGBOH & ANOR v. FRN (2002) 4 SCNJ 393.

It is my humble view that the decision of this court to dismiss this appeal on 23/2/11 has led to a miscarriage of justice and must be set aside. There is no material in the Applicant’s affidavit to warrant the grant of the 4th prayer for stay of execution. Moreso when it is clear that the judgment of the lower court had already been executed. In the circumstances, the ruling of this court delivered on 23/2/11 dismissing this appeal is hereby set aside. Appeal No.CA/B/321/009 is hereby ordered to be relisted on the cause list. In effect prayers 1 – 3 are hereby granted. Prayer 4 is hereby struck out. Prayers 5 & 6 are hereby granted. Time is enlarged till today for the Applicant to file Appellant’s brief.

Appellant’s brief filed on 8/4/11 is deemed properly filed today. Application is granted in part.

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Other Citation: (2012)LCN/5738(CA)

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