Mr. Chinedu Ukachukwu & Anor. V. Mr. Sylvester Nkpado (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Honourable Justice L. A. Okunnu sitting in the High Court of Lagos State, Ikeja Division in Suit No: ID/963//2008.

The Respondent’s claim in the lower court are contained in the Writ of Summons and statement of claim (Pages 1 – 7 of the record) which were basically for an order of court setting aside the sale of Respondent’s property at 32 Lawrence Daniel Close, Ajao Estate Lagos, or in the Alternative an order directing the 1st Defendant (1st Appellant herein) to return to the claimant (Respondent herein) the sum of N2,400,000 (Two Million Four Hundred Naira) the Respondent Invested in the property.

After pleadings, the suit was set down for pre-trial conference in line with the High Court of Lagos State Civil Procedure Rules 2004.

Pursuant to the provisions of Order 25 Rule 6 of the Rules of Court, judgment was entered dismissing Respondents claim on 15/10/2009 (page 71 of the record) for being absent in court, at the time the case was called.

By a motion on Notice dated 19/10/09, the Respondent brought an application to set aside the judgment dismissing his claim and to re-list and/or reschedule the date for continuation of pre-trial conference. The Appellants filed counter Affidavit’

Before the resumption of the Pre-trial conference on 26/11/2009 Appellants were duly notified of resumption of pre-trial conference and the notice was duly acknowledged by counsel.

The suit was subsequently adjourned to 7/1/2010 at 10:00am for continuation on which day Appellants and counsel were absent and pre-trial conference was further adjourned to 25/2/10. Notice of adjournment to 25/2/10 was duly received by Appellants. On the 25/2/2010 Appellants and counsel again were not in court to participate in Pre-trial Conference Inspired of notice to them, and had not yet complied with clear Pre-trial orders of court. The Honourable Judge invoked the sanction provisions of order 25 Rule 6 of the Rules of Court and entered judgment for the claimant.

It is against the said judgment; that the Appellant have appeared to this court vide their Notice of Appeal dated 6/12/10 filed with the leave of this court granted on 1/12/10. From the Four (4) grounds of Appeal contained in said Notice of Appeal, the Appellants formulated the sole issue for determination in this appeal to wit:-

“were the High Court of Lagos (Civil Procedure) Rules 2004 (particularly Order 25 Rule 6 thereof) and/or the Constitutional Issue of fair hearing duly observed by the trial judge in the proceedings of 25/02/10 when she entered judgment in this suit for the claimant?

On the other hand the Respondent did not formulate any issue, but proceeded on arguments based on the sole issue as formulated by the Appellants.

Learned counsel to the Appellants Mbamalu Esq, submitted that this suit was dismissed on 15/10/09 for want of diligent prosecution. The claimant, now Respondent by motion date 19/10/09 prayed for the setting aside of the order dismissing the suit and a further order relisting the suit for continuation of pre-trial conference. The claimants’ motion aforesaid in 25/2/10 in the absence of the Defendants /Appellants without hearing notice to them was not only heard, entertained and granted by the trial court on the same day. Judgment was entered to the Respondent in terms of his statement of claim.

Learned counsel further submitted that the proceedings of the lower court in this suit on 25/02/10 breached Section 36 of the Constitution of the Federal Republic of Nigeria 1999 See:- Amanchukwu v. Federal Republic of Nigeria (2009) All FWLR (Pt.465) 1672 at 1679 paragraphs G – H.

Learned counsel submitted further that the trial judge can not in law sanction the appellants when in the first place the provisions of Order of 25 Rule 1(2) requiring the judge to “Cause to be issued to the parties and their legal practitioner a pre-trial conference notice as in FORM 17 ——–” was not done. The law here is that, the judgment must first be set aside, and the suit relisted before pre-trial conference can be rescheduled again invoking Order 25(1) & (21 of the Rules of the Lower Court.