Mrs Modinat Yetunde Ladipo V. Oyo State Government & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading the Judgment)

This is an appeal against the judgment of the High Court of Justice Oyo State, Ibadan Judicial Division delivered by Sanda J. on the 6th day of December, 2004.

By a writ of summons and statement of claim dated 5th day of June, 2002, the appellant (as plaintiff) in the court below claimed against the respondents the following reliefs:-

(a) A DECLARATION that the letter dated 31st day of January, 2004 purportedly dismissing the plaintiff from employment is ultra vires the defendant, illegal, null and void and of no effect whatsoever.

(b) AN ORDER directing the defendants to reinstate the plaintiff to his post as principal confidential secretary GL. 12.

(c) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, whether by themselves their agents, privies and or servants from acting on implementing the contents of the aforesaid letter in any manner whatsoever and however.

Issues were joined by parties. Respondents as Defendants before the lower court filed a 35 paragraph amended statement of defence. Trial commenced. There were several adjournments at the instance of the parties until 15th July, 2004 when appellant’s counsel informed the court that settlement out of court has failed. The case was adjourned in absence of the respondents and their counsel to 6th, 7th and 8th December, 2004 for definite hearing with further directive that all witnesses must appear in court. On the 6th December, 2004, neither the plaintiff/Appellant nor her counsel were in court but 1st defendant/respondent was represented in court and defendants/respondents’ counsel was also in court. Respondents’ counsel moved the court to dismiss the case under order 37 rule 8 of the High Court (Civil Procedure) Rules, Oyo State, 2000, The court found in favour of the counsel’s application for dismissal and the Plaintiff/Appellant’s case was dismissed by the trial court under order 37 Rule 8 of the High Court Civil Procedure Rules, Oyo State, 2000, for want of diligent prosecution. See pages 43-44 of the record.

Aggrieved with the Judgment of 6/12/04, appellant lodged an appeal to this court vide her Notice of Appeal dated 6/12/07 containing sole ground of appeal, appearing at pages 51-52 of the record. The sole Ground of Appeal read thus:-

“GROUND OF APPEAL

The learned Justice, A. Sanda did not exercise his discretion judicially and judiciously by dismissing the Appellant’s suit on the 6th day of December, 2005.

PARTICULARS OF ERROR

(a) The honourable Judge should have taken into consideration the wildly publicized national strike called by the Judicial Staff Association of Nigeria, which commenced the 6th December, 2005.

(b) The honourable Judge should have also taken into consideration that for the 14 times the suit was adjourned that the Appellant and his counsel never failed for once to attend court proceedings.”

In compliance with the rules of court Appellant filed Appellant’s brief of Argument on 30/11/07, while the respondents’ brief of argument dated 27/10/08 was filed on 28/10/08 but deemed properly filed on 3/02/09. When the appeal came up for hearing on 5/3/12 Respondents who were duly served with hearing notice through Ministry of Justice, Oyo State on 2/3/12 did not appear in court. As there was evidence of service the appellant was allowed to proceed since the appeal was fixed for hearing. Appellant’s counsel Ijeh Esq. adopted Appellant’s brief of argument and urged the court to allow the appeal. The court invoked order 18 Rule 9(4) of the court of Appeal Rules, 2011 and deemed the Respondent’s brief of argument dated 27/10/08 and filed on 28/10/08 as duly argued.