Senator Dalhah Ahmaddamzomo V. Saleh Musa & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A. (Delivering the Leading Judgment)

This is an appeal against an interlocutory decision of Jigawa State High Court in Suit No. JDU/13/2009, delivered on 7/6/2010 by Hon. Justice MUKTAR ADAMU (HON. CHIEF JUDGE)

A brief facts of the case shows that Appellant (as plaintiff at the Court below) instituted the action on 5/11/2005 when he sought an order of the trial Court to issue a writ of Summons and place same on the Undefended list, for monetary claims against the Respondents. The application was subjected to several technical objections and was finally placed on the Undefended List.

In the writ of Summons, Appellant claimed for the sum of two million, four hundred thousand Naira (N2,400,000.00) being the balance of two million Six hundred thousand (N2,600,000.00) of two plots sold by the Respondents without his (Appellant) consent and permission. Appellant filed the writ together with an application for the money judgment pursuant to Order 11 Rule 1 of the Jigawa State High Court Civil Procedure Rules, 2008.

The Respondents filed a memorandum of conditional appearance on 20/11/2009 and a preliminary objection on 4/12/2009. On the date of hearing the preliminary objection 30/12/2009 the Appellant applied to be allowed to file his statement of claim and, so on 30/12/2009, Appellant filed a new writ of Summons together with application for Summary judgment. When the matter came upon 14/1/2010, the Respondents challenged the competency of the writ on the ground that the Court cannot hear a Suit with two concurrent writs.

In a considered ruling the trial Court struck out the application for Summary judgment and expunged the second writ of Summons from its record. It also ordered that the matter be heard and determined on evidence, thereby transferring the case to the general Cause list, that was on 18/2/2010, Prior to that Ruling on 18/2/2010, the Appellant had served the Respondents with an application for final judgment which was dated 18/2/2010, and the same was fixed for hearing on 17/3/2010, and was opposed by the Respondents,

On 7/6/2010, the trial Court ruled against the Appellant and struck out the application for Summary judgment for being incompetent, bare, and unarguable. The parties had filed their pleadings before the ruling, and the Respondent on 18/3/2010.

This appeal is against that interlocutory ruling as Appellant was aggrieved by the Order striking out the application for default judgment.

Appellant filed the Notice of Appeal on 16/6/2010 and disclosed 3 grounds of appeal (Pages 116 to 118 of the Records of Appeal). He filed his brief of argument on 21/7/2010 and distilled three (3) Issues for determination, as follows.

“(1) Whether or not a Court can refuse any application on its own dictate without recourse to Law/rules of Court,

(2) Whether or not a party can apply for extension of time to file any process before the time elapse (sic) and without a formal application (motion and affidavit)

(3) Whether or not there is anything in filing an application same date after not before the ruling which had the ruling been in another way that application filed becomes useless.”

Appellant did not relate the Issues to the grounds of appeal. It is assumed that the three issues derived from the three grounds, serially.

The grounds of appeal (without particulars) were: