HON. (MRS.) OBROH PHILOMINA ASAMAH v. MR. IBIUKE MONDAY & ORS
(2019)LCN/13784(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of September, 2019
CA/B/271M/2019(R)
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HON. (MRS.) OBROH PHILOMINA ASAMAH Appellant(s)
AND
1. MR. IBIUKE MONDAY
2. DELTA STATE INDEPENDENT ELECTORAL COMMISSION
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
RATIO
WHETHER OR NOT A PARTY CAN RELY ON A PLEA OF FAIR HEARING WHEN HIS COUNSEL WAS PROPERLY SERVED BUT REFUSED TO COME TO COURT
Be that as it may, the point is whether it was proper for this court to have dismissed the appeal on 3/4/19. This Court was satisfied on 3/4/19 that the Appellant/Applicant had been properly served but was unwilling and unable to move the application to push the appeal forward on the Court appointed day. I am also satisfied by the affidavit sworn to by Mrs. Tugai Ali that the applicant was properly served. Clearly one of the Exhibits attached to the affidavit of Mrs. Tugai Ali is to the effect that on 27/3/19 this Court’s Registry placed a call to gsm NO. 08033708253 while a was sent to the same number on 26/3/19 in respect the hearing of 3/4/19 for the hearing the motion in appeal CA/B/342/2017 which was the original appeal No. of the appeal before it was dismissed by this Court. The Respondents’ counsel was served and was in Court to move the application to dismiss the motion to relist. ? There can be no resort to a plea of lack of fair hearing when counsel was properly served and refused to come to Court. I find no merit in this application and it is hereby dismissed. PER OGUNWUMIJU, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling): This is an application brought pursuant to Order 6 Rules 1 and 2 of the Court of Appeal Rules 2016. It is for the following orders:
1. An order of Court setting aside the order made on the 3rd day of April, 2019 dismissing Appellant/Applicant?s appeal in the above suit for lack of diligent prosecution of the case.
2. An order of Court relisting the above appeal for determination on the merit as the said appeal was dismissed for lack of diligent prosecution
The grounds upon which the application is brought are as follows: –
1. That no notice for the hearing of the application fixed for the 3rd of April, 2019 was sent to the Appellant/Applicant.
2. That the Appellant/Applicant was misled by the Registry of this Court as to the date for the hearing of the Application for extension of time.
3. That this Honourable Court has the power to set aside the order dismissing the Appellant/Applicant appeal same having been made without the Appellant/Applicant knowledge of the date the order was made.
It is supported by a 13 paragraph
1
affidavit with Exhibits. The gist of the affidavit is that the application for extension of time was initially fixed for 26/3/19 and a notice was sent on 19/3/19 to the applicant?s counsel via sms by the Court of Appeal communications desk. That on the 21/3/19 another message was sent that the hearing fixed for 26/3/19 had been further adjourned to 29/9/19. On that basis, the applicant?s counsel believed that the case would be coming up on 29/9/19. Counsel insisted in his affidavit that he never received the Hearing Notice by sms sent to him on 26/3/19 for the hearing of 3/4/19. The 1st Respondent filed a counter affidavit on 23/5/19 through one Kara Omoruwa. Paragraphs a ? j of the counter affidavit state as follows:
a. Contrary to the depositions in the Affidavit in support of the Motion, when the matter came up on Wednesday, 3rd April, 2019 as CA/B/342/2017, the 1st Respondent and his Counsel, Jonathan Ekperusi, Esq., attended Court based on the Hearing Notice sent to Counsel by the Court.
?b. Before proceeding with the matter on Wednesday, 3rd April, 2019 the Court verified from the Court officials and confirmed that there
2
was proof of service of the Hearing Notice on Counsel for the Appellant/Applicant, and that the Appellant was served on 26th March, 2019.
c. After confirming that the Appellant/Applicant?s Counsel was served, Counsel for the 1st Respondent, Jonathan Ekperusi, Esq., prayed the Court to dismiss the appeal for lack of diligent prosecution. The Court accordingly dismissed the appeal. A copy of the Enrollment of the Order dismissing the appeal is attached hereto and marked as Exhibit ?A.
d. The judgment of the High Court of Delta State to which this application relates was delivered on 22nd May, 2017 by Hon. Justice R.D. Harriman in Suit No. S/107/2014: Mr. Ibiuke K. Monday vs. Delta State Independent electoral Commission & 2 Ors.
e. The Applicant had filed a Motion on Notice dated 21st December, 2017 and filed on 22nd December, 2017 seeking to stay execution of the said judgment, which Motion was served on us on 31st January, 2018.
?f. The appeal in CA/B/342/2017, as per Exhibit ?A? hereto was entered on 28th July, 2017 when the record of appeal was transmitted to this Honourable Court.
3
g. Following the failure of the Applicant, as Appellant to file her Brief of Argument within the time prescribed by the Rules, we filed a Motion to dismiss the appeal.
h. It was after the Applicant was served with our Motion to dismiss the appeal that she filed her Motion for enlargement of time, which she abandoned, leading to the dismissal of the appeal on 3rd April, 2019.
i. The Applicant?s application for stay of execution at the lower Court was struck out on 7th December, 2017 after the lower Court became aware that the appeal had been entered since 28th July, 2017.
j. The Applicant, as Appellant was not keen on pursuing the appeal initiated in CA/B/342/2017, hence she did not file her Brief of Argument within time, even though the record of appeal has been transmitted to this Court since 28th July, 2017.
Since the affidavit in support of the motion challenged the fact that any notice of hearing for 3/4/19 was ever served on the applicant, the Registry of this Court particularly the communications office, filed an affidavit of service with Exhibits on 30/5/19. The affidavit was sworn to by Mrs. Tugai Ali,
4
a Registrar of this Court. Paragraphs 3 ? 5 of the affidavit state as follows: –
1. That on discovering that CA/B/342/2017 is a pre-election matter, I brought it to the attention of my Lord, Hon. Justice H.M. Ogunwumiju JCA, the presiding justice of the Court of Appeal Benin and my lord instructed the Appeal be fixed for Wednesday 3rd of April, 2019.
2. That on the 26th March, 2019 I instructed Mr. Ismail Badamasi of the Communication Unit to send hearing notice, which he did.
3. That the hearing notice ( message) was sent on the 26th day of March, 2019 at 1.35pm by Ismail Badamasi for the hearing of the Appeal coming up on Wednesday 3rd of April, 2019 and the Appellant counsel was also called on the 27th day of March, 2019 to confirm the receipt of the message at 9.05am. Attached to this affidavit are the copies of the proof of call made, message sent and affidavit of service sworn to by Ismail Badamasi.
OPINION
I have considered the processes in support and against this application. The judgment at the lower Court was delivered on 22/6/17 in Suit NO. 5/107/2014 and the applicant had sought
5
and obtained stay of execution of that judgment.
The record of appeal was transmitted on 28/7/17 and no brief within time was filed as required by law until the applicant’s counsel was nudged by the 1st Respondent’s motion to dismiss the appeal.
Be that as it may, the point is whether it was proper for this court to have dismissed the appeal on 3/4/19. This Court was satisfied on 3/4/19 that the Appellant/Applicant had been properly served but was unwilling and unable to move the application to push the appeal forward on the Court appointed day. I am also satisfied by the affidavit sworn to by Mrs. Tugai Ali that the applicant was properly served. Clearly one of the Exhibits attached to the affidavit of Mrs. Tugai Ali is to the effect that on 27/3/19 this Court’s Registry placed a call to gsm NO. 08033708253 while a was sent to the same number on 26/3/19 in respect the hearing of 3/4/19 for the hearing the motion in appeal CA/B/342/2017 which was the original appeal No. of the appeal before it was dismissed by this Court. The Respondents’ counsel was served and was in Court to move the application to dismiss the motion to relist. ?
6
There can be no resort to a plea of lack of fair hearing when counsel was properly served and refused to come to Court. I find no merit in this application and it is hereby dismissed. No order as to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the ruling just delivered by my learned brother, HELEN MORONKEJI OGUNWUNMIJU, JCA.
I am in full agreement with the reasoning and conclusion herein.
I have nothing useful to add. I also see no merit in this application.
I also dismiss it with no costs awarded.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the opportunity of reading the draft of the ruling just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JCA.
I agree that the applicant’s application to relist Appeal No. 4/8/342/2017, which was dismissed on the 3rd day of April, 2019 for want of diligent prosecution, lacks merit. For the comprehensive reasons given in the leading ruling, I also dismiss the applicant’s motion to relist Appeal No. CA/B/342/2017.
?I abide by the order as to costs.
7
Appearances:
T.K. ThomasFor Appellant(s)
Jonathan Ekperusi for 1st RespondentFor Respondent(s)
Appearances
T.K. ThomasFor Appellant
AND
Jonathan Ekperusi for 1st RespondentFor Respondent