Shell Petroleum Dev. Company of Nig. Ltd V. Lucky Esowe (2007)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

: By a motion on notice dated 30th October, 2001, the appellant herein, as 2nd Defendant/Applicant before the lower Court, sought for 2 main reliefs.

They are:

1. An order setting aside or discharging the order made on the 6th August, 2001, for stay of execution of the judgment in Suit No. HCO/30/93 pending the determination of the appeal filed against the said judgment by the applicant.
2. An order stopping the Respondents from further pursuing the process or course of the execution of the said judgment, pending the determination of the motion for stay of execution on its merit.

This motion was argued on 28th January, 2002 and ruling reserved for 25th February, 2002. In its’ ruling, the lower Court refused this application and struck out same. The appellant was dissatisfied with this ruling and appealed to this Court by way of a notice of appeal dated 7th March, 2002. The appeal is predicated on 2 grounds. The Appellant filed its brief of argument on 27th November, 2003. The Appellant’s brief was served on the Respondents’ Counsel on 12th December, 2003.

The Respondents’ failed and neglected to file their brief(s). This apparent disinclination and lack of interest by the Respondents to contest this appeal, led and prompted learned Counsel to the Appellant, Mr. Isaac Jemide, to file an application dated 17th February, 2005 for this appeal to be heard and decided on the appellants’ brief alone. This application was heard and granted on 22nd November, 2006. At the hearing of the appeal before us on 25/4/07, Learned Counsel to the appellant adopted and relied on the appellant’s brief of argument.

The appellant’s brief identified and formulated only one issue from the 2 grounds of appeal. The issue is: –

“Was the judge of the lower Court legally justified in refusing to set a side his order of 16th October, 2001 striking out the appellants application for stay of execution of the judgment of 31st July, 2001?

The background to this appeal is that on 31/7/02, the Ogwashi-Uku division of the Delta State High Court, presided over by Hon. Justice Ogbodu, delivered a judgment in suit No. HCO/30/93 and awarded damages against the 2nd defendant/appellant on the basis of the vicariously liability of the 2nd defendant/appellant for the negligent driving of the 1st defendant in the suit. 2nd defendant/appellant was not satisfied with this judgment against which it filed a separate notice of appeal and a motion for stay of execution of the said judgment. Both the notice of appeal and the motion for stay were filed on 6th August, 2001.

The motion for stay was struck out on the 16/10/01 on the ground that neither the applicant, (appellant herein) nor its counsel was present in court when the motion was called for hearing. When the appellant through its counsel, discovered that this motion was struck out, the motion reproduced herein above was filed and argued on 28/1/02. In the ruling of 25/2/02, the lower court held that it could not set aside its order striking out the motion for stay of execution due to the non-appearance of the applicant and its counsel and held further that it was functus officio.

In arguing the lone issue for determination before this court, learned counsel Mr. Jemide, explained that the main grounds for the application to set aside the order of 16/10/2001 were listed in the schedule to the application and paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the affidavit in support. These paragraphs, according to Mr. Jemide, show that neither the appellant nor its counsel had notice of the hearing of the motion for stay of execution slated for 16/10/2001. Learned counsel maintained that none of the aforementioned paragraphs of the affidavit in support was either denied or controverted by the respondents. He remarked that there was indeed no counter-affidavit and submitted that the lower court should have accepted that neither the appellant nor its counsel was served with any hearing notice for 16/10/01. After these preliminary issues, learned counsel Mr Jemide went further to underscore the main gravamen in the case of the appellant when he pointed out that it was beyond any doubt that the appellant, as the applicant in the motion for stay of execution, was not served with any hearing notice against 16th October, 2001 and none was either served on its Counsel before the motion was struck out on the ground of the absence of the applicant and its Counsel. Learned Counsel referred to the proceedings of the lower Court on 16/10/01 on pages 9 – 10 of the record of appeal and pointed out that the learned trial Judge did not bother to check if the applicant or its Counsel had been served with Hearing Notice for that day before proceeding to strike out the motion on the application of the learned counsel to the respondents. Still on this issue of Hearing Notice, learned counsel was of the view that the learned trial Judge did not seem to appreciate the importance of ensuring that the applicant or its counsel had been given due notice of the hearing date of the motion for stay of execution. He further remarked that if the learned trial judge had searched the case file to ascertain whether or not the applicant or its counsel had been served with hearing notice for 16/10/01, he would not have struck out the motion. He pointed out that paragraph 10 of the affidavit in support, which was not denied, averred that neither the applicant nor its counsel was served with any hearing notice. Upon this, Mr. Jemide added that indeed the onus is not on the applicant to show that it had no notice of the hearing date but on the respondents to show that the applicant or its counsel was served with the appropriate hearing notice. Learned counsel maintained that this onus was not discharged by the respondents.

Adding a further dimension to this appeal, learned counsel referred to the cases of ADEBAYO V. OKONKWO (2001) FWLR (PT.75) 465 and BAMAIYI V. THE STATE (2001) FWLR (PT.48) 956 and submitted that the proceedings of the lower court on 16/10/01, as it related to the motion for stay of execution and the order striking it out were a violation of the .applicants’ constitutionally guaranteed right to fair hearing and therefore were a nullity. He added that the service of hearing notice in the circumstance of this matter was indispensable and in the absence of such service the order of 16/10/01 in the absence of the applicant and its counsel was made without jurisdiction and therefore liable to be set aside by the lower Court itself. He supported his position with the decisions in Somai Co. (Nig.) Ltd. v. Adzege (2001) FWLR (Pt.68) 1104; (2001) 9 NWLR (pt. 718) 438; Scott-Emuakpor v. Ukavbe & Ors. (1975) NSCC 435 at 436 and 438; and International Bank Lid v. Baioppiys Ent. Ltd. (2003) FWLR (Pt. 179) 1339 at 1346 D-E.

It was submitted that because the order striking out the motion for stay of execution, as was done by the lower Court, was unconstitutional for being of breach of the right to fair hearing, the lower Court ought to have set it aside for being a nullity. Based on this submission, learned counsel, Mr. Jemide referred to a part of the ruling of the lower court of 25/2/02 and maintained that the learned trial judge was swayed by irrelevant and extraneous reasons in refusing to set aside his order of 16/10/01. The part of the ruling which learned counsel attacked is at page 37 lines 25-30 of the record of appeal. Because it would become relevant later in this judgment, I would like to set it out. It goes thus: –

“I think the important development in this matter which counsel, in .my opinion, deliberately did not want to advert its (sic) mind is the well known fact that execution of the judgment had already been carried out and completed on 7th November, 2001, or so. That being the case, what is there to be stayed? Nothing.”

According to Mr. Jemide, this conclusion of the learned trial Judge has no legal or factual basis as there was nothing on record before him to support the view that execution of the judgment had been completed on the 7/11/2001 because the motion to set aside the order striking out the motion