Michael Oladipo Labati V. Owoeye Faromipin & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Justice B.O. Babalola of Osun State High Court, sitting at the Ilesa Division of the court. The ruling was delivered on the 27th day of April, 1999. This was sequel to a motion on notice praying the court for an order:-

(a) “Extending the time within which the plaintiff may file a reply to the 2nd defendant’s statement of Defence and to deem as properly filed the Reply to the statement of Defence filed along with this motion.

(b)To set down the case for hearing and for giving judgment against the 1st defendant in terms of the plaintiff writ of summons and statement of claim for the failure of the 1st defendant to file a defence to the claim.”

Briefly the facts that led to this appeal so far as they are material to the questions which call for determination are: – The plaintiff now appellant sued the 1st defendant and the 2nd defendant, now respondent claiming some reliefs. The appellant filed and served his statement of claim on the 1st defendant and the respondent. The respondent filed and served on all the parties his statement of defence dated 17th day of March, 1993. The 1st defendant did not file any defence and is not represented by counsel. By motion dated 20/6/94 and filed on 21/6/94 the appellant sought for an extension of time to set the suit down for hearing and for judgment against the 1st defendant for his failure to file his statement of defence. The appellant never moved this motion and for two years the case suffered several adjournments for one reason or the other. On 11/6/96, the appellant brought another motion asking for leave to amend his statement of claim.

The motion was moved without opposition and was granted by the trial court. The appellant did not take any steps to amend his statement of claim as ordered. The case again suffered several adjournments for another two years until 31/3/98 when the appellant through a new counsel filed the motion praying for the orders set out above. After Learned Counsel for the appellant had moved the motion, the respondent’s counsel without filing any counter affidavit replied opposing the motion. The Learned Trial Judge thereafter in a reserved ruling struck out the reply on the ground that it introduced an entirely new cause of action. Learned counsel for the appellant was dissatisfied with the ruling and appealed to this court. He filed four grounds of appeal from which he distilled the following three issues:-

1. Whether the learned trial judge was justified in allowing the learned counsel to the 2nd defendant to oppose the application on the points argued without filing a counter-affidavit giving prior notice of grounds of opposition to the motion and the Reply to the appellant.
2. Whether the learned trial judge was justified in striking out the reply to the statement of defence when there was no formal application before him to strike it out.
3. Whether the learned trial judge was justified in not giving the appellant a fair hearing on the matters raised by the Respondent’s Counsel on the application before the court.

The respondent formulated only one issue for determination:-

1. Having regard to the application before him, was the learned trial judge right in striking out the reply?

Before us, the learned counsel for the parties adopted their briefs of argument and relied on the submissions therein.

Ajakaiye Esq., of counsel for the appellant argued his three issues together. His contention is that the respondent did not file any counter affidavit to the motion and yet went ahead to address the court on facts, some of which were not based on the motion for extension of time but on the reply to the statement of defence. Not having filed a counter affidavit and not having come by way of a proper application, the appellant was denied fair hearing as he had no opportunity to react to the issues raised by the respondent. Counsel further contended that the trial judge did not rule on the motion moved by the appellant but went on to strike out the reply after commenting that the motion was not served on the 1st defendant. Counsel argued that the trial judge ought not to have allowed him to move the motion since one of the respondents to the motion had not been served. Finally, counsel submitted that the trial judge ought to have limited his ruling on the motion and should not have extended it to the defects in the Reply to the statement of defence in respect of which there was no application before him. In his reply, Fayokun Esq., of Counsel, submitted that in an application for an order of court extending time within which to file a Reply to a statement of defence and to deem the Reply as properly filed, one of the essential requirements on which the applicant should satisfy the court is the propriety or suitability of the Reply sought to be deemed as filed. Counsel relying on the case of Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164 @ 172 or (1989) 5 SCNJ 71 @ 75 submitted that as a general rule of pleadings and practice where no counter-claim is filed a reply to a statement of defence is unnecessary if its sole purpose is to deny allegations contained in the statement of defence. Counsel examined the relevant rules of court and other authorities as to when a reply is necessary and submitted that in an application for an order of court extending the time within which to file a reply to a defence and to deem the reply as properly filed, the applicant must explain to the satisfaction of the court the reasons for the delay in filing the reply and must also satisfy the court that the reply which is to be deemed properly filed is in compliance with the law.

In response to appellant’s arguments, counsel submitted that the appellant predicated his issues for determination on the erroneous premise that his opposition to the reply was raised as a preliminary objection. Counsel submitted that as clearly shown in the records no such objection was raised and that his opposition to the reply was based solely on the substantive issue involved in an application of that nature. Counsel then contended that a counter affidavit was not necessary as his opposition was based on law and the facts as deposed to by the appellant.

On the appellant’s grouse that instead of making a ruling on the motion he moved, the trial judge struck out the reply, Counsel submitted that the striking out of the “Reply” is tantamount to striking out of the motion in respect of the first prayer, since the reply is the subject matter of the prayer. On fair hearing counsel submitted that the argument is not relevant as both parties to the case were duly heard on the motion. The appellant moved first and the respondent replied opposing the motion on the same day 8/3/99, after which the trial judge reserved his ruling to 27/4/99, 50 days later. On absence of service of the motion on the 1st defendant, counsel submitted that it is only the 2nd prayer on the motion paper; “to set down the case for hearing and giving judgment against the 1st defendant” that concerned the 1st defendant and that the appellant had abandoned that prayer by not proffering any argument on same following the finding by the trial judge that the motion was not served on the 1st defendant.

Before I go into the merits of this appeal, let me first deal with the objection raised by the respondent against grounds 1 and 4 of the appeal. For full appreciation of the issue, it is better to set out the grounds without their particulars:

“1.The learned trial judge erred in law in allowing the Defendants/Respondents to raise preliminary objection to the Reply to the statement of Defence filed by the plaintiff when no formal application was brought to court and when what was moved was a motion for extension of time to file reply to statement of defence and to deem as properly filed the Reply to the statement of defence filed along with the motion.

4. The ruling is against the weight of evidence.”

I agree with counsel for the respondent that the factual basis upon which ground 1 is anchored does not exist. The respondent did not raise any preliminary objection in the lower court as is shown in the record of proceedings. All he did was to reply, opposing the application for extension of time to file the reply and deeming same as properly served. No issue can be formulated upon a ground of appeal which is contrary to or in conflict with the facts of the case before the trial court. See Alakija v. Abdulai (1998) 5SCNJ 1. or [1998] 6 NWLR (Pt.552) 1 @ 17 A-B; See also Akibu v. Oduntan (2000) 7 SCNJ 189/204 also reported in (2000) 13 NWLR (Pt.685) 446 @ 462 F where the supreme court held that any ground of appeal which does not relate to any issue decided by the court whose decision is being challenged is incompetent and must be struck out. I further agree with respondent’s counsel that ground 4 complaining that the ruling is against the weight of evidence is out of place in this appeal as the only evidence before the trial court was the affidavit evidence of the appellant and so no issue for argument can be formulated upon a complaint of weight of evidence. Counsel must be deemed to have abandoned the ground as no issue was formulated on it and no argument proffered. Grounds 1 and 4 are consequently struck out.