In The Court of Appeal of Nigeria

On Wednesday, the 8th day of May, 2002




SUNDAY AKINOLA AKINTAN      Justice of The Court of Appeal of Nigeria

MORONKEJI OMOTAYO ONALAJA      Justice of The Court of Appeal of Nigeria

DALHATU ADAMU      Justice of The Court of Appeal of Nigeria





C.T. AKPAJA   Respondent(s)

SUNDAY AKINOLA AKINTAN, J.C.A. (Delivering the Leading Judgment): The appellants were the defendants, while the respondent was the plaintiff in this action, which was instituted at lbadan High Court as Suit No. I/1029/90. The plaintiff’s claim in the suit was for a number of declarations, and injunction in respect of a building on Plot 4, Block ‘F’, Eruomu Layout, Ife Road, Ibadan, otherwise referred to as No. 18, Rabiu Adeyemo Street, Oko-Ibadan, Ibadan. Pleadings were filed and exchanged and the trial commenced before Adekola, C.J. The plaintiff opened his case and called some witnesses. Thereafter, further hearing in the case had to be adjourned a number of times. This was the position on 20th January, 1998, when the case again came up before the learned Chief Judge for continuation of the trial.

The plaintiff and his counsel were, however, absent on that day. Mr. Olugbenga Aluko, learned Counsel for the defendants urged the court to dismiss the case for want of prosecution. The request was granted and the court accordingly dismissed the case with N1,000 costs against the plaintiff. The enrolment order was later prepared and signed by the learned presiding Chief Judge in which the order of the court dismissing the suit was reflected.

The plaintiff reacted to the court’s decision to dismiss the case by filing a motion dated 21st February, 1998. He prayed the court in the motion for the following reliefs:

“(a) An order for extension of time within which to apply to set aside the judgment in this suit delivered on 20th January, 1998;

(b) An order setting aside the said judgment obtained by the plaintiff in the absence of the plaintiff/applicant;

(c) An order relisting the said matter for trial on the merit.”

The motion was supported by a 19-paragraph affidavit deposed to by one Usman Adebayo, an uncle of the plaintiff. The deponent disclosed the main reason for the absence of the plaintiff at the hearings of his case, as being due to his prolonged illness. A medical report issued by a doctor that attended to the man was among the documents attached to the affidavit.
The defendants reacted to the application by filing a notice of preliminary objection to the court entertaining the application. The notice reads inter alia, as follows:

“Take notice that the defendants/respondents will by way of preliminary objection contend at the hearing of this application on 4th April, 1998, or any other subsequent date of adjournment that the application is incompetent and should be dismissed.

Grounds of Application
1. The affidavit in support of the application is procedurally defective.

2. Any judgment that may be delivered subsequently in the suit, if the suit is relisted may be impeached on the ground of a considerable lapse of time between the hearing of the witnesses and the delivery of judgment.

3. The hearing of the suit had been frustrated on numerous occasions because of the frequent application for adjournment by the plaintiff.”

The motion came up for hearing before the same Adekola, C.J. and after taking submissions from learned Counsel for each of the parties on the preliminary objection he delivered his ruling on 23/7/98. The learned Chief Judge held, inter alia, as follows in the concluding portion of his said ruling:

“Having considered paragraphs 7 – 13 and 16 – 18 of the affidavit in support of the application, it seems to me expedient that the court’s discretion should be exercised in favour of the plaintiff/applicant by granting him extension of time, within which to bring the application and also to hear the motion for relistment on its merit. In the circumstance, the preliminary objection has no valid basis. It is hereby over-ruled.”

The defendants immediately after the ruling, filed another motion in which they prayed the court for “an order of this honourable court to strike out the motion of the plaintiff/respondent to set aside the judgment of this court in the suit”. The defendants/applicants also gave the following as grounds of application:

“Grounds of Application
1. The enrolment of order of the judgment by which this suit was dismissed on January 20th, 1998, has been drawn up and the court has no jurisdiction in the suit again as it is functus officio.

2. That jurisdiction of the court originates from the statute and not from the rules of the court.

3. That this honourable court on July 20th, 1992, dismissed the application of the plaintiff to amend his pleading to plead unregistered deed of conveyance and since there is no appeal against the ruling the issue is res judicata.

4. The application is an abuse of the process of the court.”

The motion was supported by a 10-paragraph affidavit deposed to by one Tope Oladoyin, a law clerk to Mr. Oluwole Aluko, learned Counsel for the defendants/applicants.

The motion again came up for hearing, before the same learned Chief Judge and after taking submissions from the counsel in the case, he delivered his ruling on 11/11/98. The application was dismissed. The learned Chief Judge said, inter alia, as follows in the concluding portion of his said ruling:

“I have carefully considered the submission of both counsel as to whether or not the application to set aside the order dismissing the plaintiff’s case should be heard. The present application was brought under Order 47 rule 1 of the 1988 Rules.
Can it be said that the application has been properly filed? Order 47 rule 1 of the 1988 Rules provides thus –
“Subject to particular rules, the court may on all causes and matters make any order, which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”
The above provisions in Order 47 rule 1 relate to what type of order to be made by the court whenever an application is brought before the court by either of the parties in a proceeding. The present application and the submission made by learned Counsel for the applicant ought to have been used to oppose the application for an order setting aside the order for dismissal by the court in January, 1998.
The motion on notice filed by the plaintiff/respondent to set aside the order of dismissal made by the court in January, 1998, should be heard and determined on its merits. The application as filed is a gross abuse of the process of the court. It is hereby dismissed.
The motion on notice will now be taken on its merits.”

The defendants were dissatisfied with the ruling and they have appealed against it to this court. Four grounds of appeal were filed against the ruling and the parties filed their respective brief of argument in this court. The following three issues were formulated in the appellants’ brief as arising for determination in the appeal:
“1. Whether the court can set aside its judgment after the enrolment of order of the judgment has been drawn up.

2. Whether the issue of jurisdiction that is now being raised is distinct from the issue that the affidavit in support of the application is procedurally defective and if so whether the ruling of the court of July 23rd, 1998, is a nullity.

3. Whether the court below was not in error in its ruling that it has jurisdiction to entertain the application to set aside the judgment, when it was not satisfied by any decision of the court that the court can still assume jurisdiction in a suit after the enrolment order has been drawn up.”

The respondent, on the other hand, formulated the following two issues as arising for determination in the appeal:
1. Whether the ruling of the High Court of 11th November, 1998, was final or interlocutory between the parties.
2. Whether High Court has jurisdiction to hear and determine motion to set aside judgment obtained in the absence of a party at trial.”

I have reproduced the concluding portion of the ruling which is the subject-matter of the present appeal so as to put into focus the issue which the lower court had to resolve and how the court in fact resolved it. The learned Counsel for the appellant, on the other hand, devoted his attention to arguing an appeal on a perceived ruling on the substantive motion which the learned trial Chief Judge ordered, in his ruling that should be heard on its merit. Thus, the argument canvassed in the appellants’ brief relates to whether a trial Judge had any right to entertain any application in a matter after the judgment in the matter has been delivered and the enrolment order is drawn and signed. It is therefore, submitted in the appellants’ first issue that the court totally lacked the power and this court is urged to allow the present appeal for that reason.

Similarly, it is argued in the second and third issues that the order of the lower court that the motion before him should be heard on its merit is erroneous. The reason given is that an enrolment order had been drawn up in respect of the ruling of the lower court dismissing the plaintiff’s case for want of prosecution. The learned trial Chief Judge was also said to have failed to consider the issue of jurisdiction raised by the plaintiff/respondent in the motion.

It is submitted in reply in issue 1 of the respondent’s brief that the ruling of the lower court which forms the basis of the appeal, being interlocutory, the appellants ought to obtain the leave of either the lower court or this court before filing the notice of appeal. The notice filed on 20/11/98, in the instant case is said to be incompetent since the required leave was not obtained before the document was filed. It is also submitted that the argument proffered in issues 1, 2 and 3 of the appellants’ brief is misplaced in that the High Court had jurisdiction to hear and determine the motion to set aside judgment obtained in the absence of a party. Reliance is placed on the provisions of Sections 6(6), 36(1) and 272(1) of the 1979 Constitution as well as Order 37 rule 1 and Order 47 rule 1 of the High Court (Civil Procedure) Rules, 1988, in support of the above submission.

The appellants filed a reply brief, in which it is submitted that since all the grounds of appeal filed deal with issues of law only, there was no need to seek for and obtain leave before filing them.
The notice of appeal filed in the instant case, was filed on 20/11/98. This was before the 1999 Constitution came into force. The provisions of the 1979 Constitution are therefore, applicable to the case. Section 220(1)(b) of the 1979 Constitution provides that:
“220(1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases…
(b) where the grounds of appeal involve questions of law alone, decisions in any civil or criminal proceedings…”
As each of the grounds of appeal filed in the instant case involves questions of law alone, I have no doubt that there was no need for the appellant to seek for and obtain leave before filing the notice of appeal in the case. The notice of appeal filed is therefore, competent and in order. But the entire argument put up by the appellants in the appellants’ brief is totally misplaced. This is because the argument canvassed was wrongly directed at arguing a ruling on the point, yet to be decided by the lower court. What the learned trial Chief Judge held in his ruling was that he had jurisdiction to entertain the motion pending before him. Having jurisdiction to entertain a matter does not necessarily mean that the application would succeed. All the points canvassed by the appellants are argument which the applicant could have put across as his defence to the application. The learned Chief Judge made this quite clear to the appellants in the course of his ruling. But instead of taking a hint and then argue his motion, the learned Counsel for the appellants embarked on going on appeal and then proceeded to canvass issues yet to be determined by the lower court.

The question whether a trial Judge was competent to review or set aside his earlier judgment after the enrolment order had been drawn and signed never arose in the instant case. All that the learned trial Judge did was that, he ruled that he had jurisdiction to entertain the application pending before him in the matter. It is after taking the motion and ruling one way or the other on whether he could set aside his earlier judgment in the case that that issue could be taken up on appeal. Learned Counsel for the appellants therefore, totally misconstrued the entire case and the steps he took in the matter is nothing but merely aimed at causing unnecessary delay in resolving the matter on its merit. There is therefore, no merit in the appeal. It is accordingly, dismissed with N10,000 costs in favour of the respondent.

MORONKEJI OMOTAYO ONALAJA, J.C.A.: I was privileged to have a perusal in draft the lead judgment of my LORD, AKINTAN, J.C.A., which focal point was, whether a High Court that delivered a ruling of dismissal of a plaintiff’s case for want of diligent prosecution, with the enrolment of the said order had jurisdiction to set aside its order of dismissal. The appeal before this court was submission of an appeal, setting aside the previous ruling contrary to the decision for leave to seek leave to set aside the enrolled order of dismissal and as rightly pointed out appellants argument was putting the cart before the horse, as the complaint and argument in this court was against a motion which the lower court was yet to give a ruling. Appellants have beclounded themselves with preliminary objection bothering on technicalities. The attitude of courts in this present age and time is departure from holding too much or adherence to technicality which invariably have been proved to be injustice THE STATE v. SALIHU MOHAMMED GWONTO & 4 ORS. (1983) 1 SCNLR 142 wherein Eso, JSC stated that:
“This court has for sometime now, laid down as a guiding principle, that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”
See also CHIWENDU v. MBAMALI (1980) 3-4 SC 1 at 81-82; TINUBU v. KHALIL & DIBBO TRANS LTD. (2000) 11 NWLR (Pt. 677) page 171 SC; OKULATE v. AWOSANYA (2000) 2 NWLR (Pt. 646) page 530 SC.

After a careful consideration of the reasoning, conclusion, in the lead judgment, and applying the above authorities, I am in full agreement, that this appeal was premature, and in respect of a future appeal, thereby, lacking in substance, thereby, supporting the dismissal by the lead judgment of the appeal. I abide with the consequential order of costs.

DALHATU ADAMU, J.C.A.: I have read in advance, the leading judgment of my learned brother, Akintan, J.C.A. in this interlocutory appeal. I agree fully with and hereby, adopt the reasons given and the conclusion reached in the said leading judgment. I also hereby, dismiss  the appeal, which I find to be unmeritorious and frivolous, while abiding by the order on costs as made in the leading judgment.



Mr. O. AlukoFor Appellant



Mr. M. A. AyoadeFor Respondent


Leave a Reply

Close Menu