Mr. Alaba Sigbenu V. Mr. Taiwo O. Imafidon (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is the apeal against the judgment of the High Court of Delta State, Ward Judicial Division in Suit No. W/132/2002. The judgment was delivered by Anigboro, J. on 31st March, 2003. The claim of the Plaintiff (Respondent herein) before the lower Court as endorsed in paragraph 9 of his statement of claim dated 20th May, 2002 but filed on 30/5/02 was for the sum of N1, 467, 000.00 (One Million, Four Hundred and Sixty-Seven Thousand Naira) being money owed to the plaintiff (Respondent) by the defendant (Appellant herein). In addition to this, the plaintiff also claimed for interest and exemplary and/or general damages in the sum of N1,000,000,00 (One Million Naira).

The Defendant (Appellant) entered appearance in a memorandum dated 10th July, 2002 and later filed a statement of defence dated 2nd August, 2002. In paragraph 14 of this statement of defence, the defendant averred that the claim of the Plaintiff was without basis, vexatious, malicious and an attempt at gold digging and prayed that same should be dismissed with costs.

Issues having been duly joined the matter was fixed for Hearing on 20th January, 2003.

On this scheduled date for trial, the Court was satisfied that the defendant was served with hearing notice through his counsel. While the defendant and his counsel were absent on this date, the Plaintiff and his counsel were present and the learned trial judge ordered the case of the Plaintiff to proceed to full hearing as scheduled. Being led in evidence by his counsel, the Plaintiff went a head to give oral evidence and tendered some cheques in evidence to support the averments in the Statement of Claim. At a point, the court suo motu stopped the hearing and adjourned to 6th February, 2003 for continuation of hearing. An order was made for Hearing notice to issue on the defendant and his counsel. For reasons which will feature later in this judgment, proceedings in this matter could not be held on 6/2/03. However, proceedings resumed on 21st March, 2003 when the Plaintiff concluded his evidence and Counsel closed the case of the Plaintiff. The Court thereafter adjourned the case to 31st March, 2003 for judgment. The proceedings of the 21st March, 2003 were held in the absence of the defendant and his counsel. In its judgment of 31/3/03, the Court gave judgment to the Plaintiff (Respondent) in the sum of N1,467,000.00 and award N2,000.00 costs against the defendant (Appellant).

In a motion on notice filed on 4th April, 2003, the defendant/appellant prayed for an order setting aside the judgment of 31/3/03 and for the matter to be set down for hearing on the merits. This motion was supported by a 9 paragraph affidavit deposed to by the defendant/appellant himself, while the Plaintiff/Respondent opposed it by way of a 12 paragraph Counter-affidavit dated and flied on 8th May, 2003.

For reasons which do not appear quite obvious from the record of appeal, no decision appeared to have been made on this application to set aside the judgment of 31/0/03. With the leave of this Court dated 19th February, 2004, the Appellant filed a notice of appeal dated and filed on 23rd February, 2004 against the judgment of 31/3/03. By an application dated 27th October, 2006 and filed on 2nd November, 2006, the Appellant sought for leave to amend his notice and grounds of appeal. This application was granted on 28th November, 2006 and the amended notice of appeal was deemed as properly amended and served. Appellant was also granted extension of time to file his brief of argument the time limited by the rules of this Court to do so having expired.

The Respondent filed his brief of argument. The Respondent’s brief is dated 8th January, 2007 and filed on 9th January, 2007. Added to this, the Respondent also filed a notice of preliminary objection dated 14th May, 2007, but filed on 4th July, 2007, challenging the jurisdiction of this Court to entertain this appeal. The Appellant’s reply brief responded to the preliminary objection and other issues raised in the Respondent’s brief of argument. At the hearing of the appeal before us on 14th April, 2008, respective learned Counsel adopted and relied on their respective briefs of argument.

Because the preliminary objection of the Respondent boarders on jurisdiction, I would wish to make a decision on it one way or another before the appeal proper, as circumstances may permit. The fulcrum upon which ‘the preliminary objection was raised and argued with leave of the Court is that ground (c) of the conditions of appeal was not perfected within the stipulated period and no leave was sought and obtained by the Appellant.

According to learned Counsel to the Respondent this failure goes to the entire root and competence of this appeal and the jurisdiction and competence to entertain it as presently constituted.

Learned Counsel then went on to submit that before an appellate Court can successfully adjudicate over an appeal the conditions of appeal must be satisfied or fulfilled within time or timeously. Immediately after this submission, learned Counsel explained that the Appellant was served with Civil Form 6 as an invitation to the parties to settle records. He also admitted that the record of appeal was settled by both parties. After admission, learned Counsel picked on condition (c) of the conditions of appeal at page 35 of the record and maintained that it was to be fulfilled within a stipulated period of 20 days. According to learned Counsel, the Assistant Chief Registrar (ACR) of the lower Court erroneously issued Civil Form 9 indicating that the Appellant had fulfilled the conditions of appeal imposed on him timeously. Learned Counsel argued that the fulfillment of condition @ is precedent to this Court assuming jurisdiction to entertain this appeal. He added also that the consequence of failure of the Appellant to fulfill all conditions precedent is to render the appeal incompetent and liable to being struck out. He referred to the case of PATRICK IZUAGBE OKOLO & ANOR V. UNION BANK NIG. LTD (2004) ALL FWLR (PT.197) 781 where the issue of jurisdiction was the effect of jurisdiction on adjudication and competence of appeal were emphasized and he urged this Court to strike out this appeal for same being incompetent.

At pages 1 to 2 of the reply brief dated 16/01/07, learned Counsel to the Appellant responded to the arguments and submissions on the preliminary objection of the Respondent. In an opening remark learned Counsel said that the preliminary objection is entirely misconceived, without merit and same should be dismissed. He went on to explain and argue that where an appellant fails to comply with any condition of appeal imposed by the Registrar of the lower Court, it is the duty of the Registrar under Order 3 rule 20 (1) of the Court of Appeal Rules 2002 to furnish that fact to this Court by way of certificate of non-compliance on the basis of which the appeal would be dismissed. He then pointed out that there is no such certificate of non-compliance in the instant appeal.

Added to the above explanation and argument, learned Counsel pointed out that with respect to this appeal, there is before this Court a certificate of due compliance with all conditions of appeal pursuant to Order 3 rule 13 (1) (b) in Civil Form 9. According to learned counsel this Certificate in Civil Form 9 is a conclusive proof of the fact that the appellant has fully complied with alit he conditions of appeal within time. This is against the background that it was the same Registrar of the Court below that imposed the conditions of appeal and it was before him that they ought to have been fulfilled as such he was the one who was in the best position to state before this Court whether or not the Appellant satisfied the conditions of appeal within time. He urged the Court to dismiss the notice of preliminary objection and proceed to decide this appeal on the merits.

I have carefully examined and read the entire record of appeal in this appeal. From a reading of page 34, the invitation to settle record and conditions of appeal is dated 23rd March, 2004. Learned Counsel to the Respondent, by way of this preliminary objection complained that condition (c) of the Conditions of Appeal was not fulfilled timeously by the Appellant.