Standard Cleaning Service Company V. The Council Of Obafemi Awolowo University Ile-ife (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the decision of the Federal High Court sitting at Oshogbo, Osun State. The appellant is a registered company based in Ile-Ife, Osun State while the respondent is the Obafemi Awolowo University Ile-Ife.

The appellant provides cleaning services and had a contract with the respondent for the purposes of cleaning a certain place in the University. A disagreement arose between the parties leading to the termination of the cleaning contract by the respondent. Aggrieved by what he considered was unlawful termination of the contract, the appellant sued the respondent by originating summons. The respondent did not file a counter affidavit but filed a conditional memorandum of appearance out of time and a notice of preliminary objection challenging the competence of the originating summons. The respondent did not obtain the leave of the court to file the memorandum of appearance out of time. In spite of objection by the appellant, the preliminary objection was argued first and was upheld on the ground that the issues raised in the originating summons can only be resolved by leading evidence. The appellant was ordered to file writ of summons and statement of claim.

The appellant being dissatisfied with this ruling filed a notice of appeal with three grounds of appeal on 18/7/07. His brief of argument was filed on 23/3/08. On 5/11/08, the respondent filed a notice of preliminary objection to the competence of the grounds of appeal and their particulars followed by his brief of argument dated 5/11/08 and deemed filed on 13/11/08. Therein he incorporated his arguments on the preliminary objection. On 27/4/09, the appellant filed his reply to the notice of preliminary objection.

At the hearing, O. Olatunji Esq. of counsel for the Respondent raised his preliminary objection before the parties adopted their respective briefs. I shall reproduce the grounds of appeal being objected to with their particulars:

Ground I

1. The lower court erred in law to hold on the Originating Summons that;

“It is only applicable in such circumstances as where there is no dispute on questions of fact or the livelihood (sic) of such dispute. From the fact contained in the sworn affidavit attached to originating summons in paragraph 3, 9, 11, 12, 13, 18, 21, 22, 25, 26, 27, 28, 29, 35, 43, 44, 49 and Exhibits A, C, D, F, G, H, I and N enough issues have been raised which can only be settled by way of evidence.

Particulars

1. The facts as contained in the affidavit in support of the originating summons are enough to decide the case without calling for evidence
2. The issue involved is based on contract between the appellant and the respondent and all the transactions are documentary.
3. All the documents attached as exhibits are enough to decide the suit.
4. The court cannot decide whether there is need to call for oral evidence or not without hearing the parties.

Ground 2

2. The trial court misdirected itself in law to evaluate paragraphs of the affidavit in support of the originating summons to conclude that there is need to call for oral evidence during trial

Particulars

1. The lower court can not take an issue suo motu without inviting the parties to address the court no matter how dear (sic) is the issue 2. The lower court had descended into arena by embarking on what it did.
2. The respondent who filed the notice of preliminary objection did not evaluate the paragraphs of the affidavit herself in her argument before the lower court.

Ground 3

3. The trial judge committed error in law by ruling that; “The defendant/applicant did not file an extension of time within which to appear in view of their failure to file within the appropriate time. The defendant/applicant only file a conditional appearance 8 days after the time to file appearance has lapse (sic). This is no doubt an irregularity. To me this does not go to the root of the matter. I have not seen any injustice their present appearance will cause the plaintiff/respondent in this case.”

Particulars

1. The originating summons was served on the respondent on the 7th of August, 2006
2. The appellant also filed a motion dated the 2nd of November 2006 asking the court to set the case down for hearing in default of defence and appearance.
3. The respondent then responded by filing conditional appearance and Notice of Preliminary Objection dated 14th of November 2006
4. The issue is compliance with rules of the court and not whether the appellant had suffered injustice or not on late appearance of the respondent at the lower court.

On ground 1, Mr. Olatunji for the respondent submitted that the particulars especially 2, 3 and 4 did not flow from the ground of appeal. On ground 2, he submitted that it is incompetent as “there is nothing like misdirection in law” and that the court can only “misdirect itself on fact” or “err in law”. Counsel further submitted that particular 1 of this ground 2 ought to be a separate ground of appeal as it does not relate to ground 2 while particulars 2 & 3 do not flow from ground 2.

On ground 3, counsel submitted that all its particulars did not show or demonstrate the error of law committed by the learned trial Judge.