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PHENIX ASSOCIATES LIMITED & ANOR v. DR. OLUMUYIWA SAMUEL ORE (2019)

PHENIX ASSOCIATES LIMITED & ANOR v. DR. OLUMUYIWA SAMUEL ORE

(2019)LCN/13392(CA)

 

In The Court of Appeal of Nigeria

On Tuesday, the 21st day of May, 2019

CA/L/439/2017

 

JUSTICE

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. PHENIX ASSOCIATES LIMITED
2. MR. VICTOR NWOSAAppellant(s)

AND

DR. OLUMUYIWA SAMUEL ORERespondent(s)

RATIO

WHETHER OR NOT A STATEMENT OF CLAIM FILED OUT OF TIME WHICH WAS NOT FORMALLY OBJECTED TO CAN BE HELD VALID

Considering the chequered history of the action as disclosed in the record, justice demands that the statement of claim which was reacted to by the appellants who had filed a statement of defence traversing it, though filed out of time, shall be deemed as properly filed and served in order to save time and cost as doing so would not cause injustice to the appellants but rather fast-track the proceedings in the action for expeditious dispensation of justice in the action which was instituted in 2012 vide Ayanwale v. Atanda (1988) 1 NWLR (pt.68) 22 where a statement of claim filed out of time which was not formally objected to was held valid on the ground that parties may consent to wrong procedure in such a case especially if no injustice would be caused to any of them as in this case. See also Johnson v. Aderemi (1955) 13 WACA 297, Buhari v. INEC (2008) 19 NWLR (pt.1120) 246.
The Court below declined to interfere with the status of the statement of claim as indicated in the excerpt (supra) of the proceedings of the Court below. Since parties had exchanged pleadings, the Court below should have, in the interest of even-handed justice, deemed the appellants statement of defence as duly filed and served even if the appellants had not applied for the said order vide U.B.A. v. Nwora (1978) 11 12 S.C. 1, Nkwocha v. MTN (2008) 11 NWLR (pt.1099) 460, British American Insurance Co. Ltd. v. Sillo (1993) 2 NWLR (pt.277) 507, Savannah Bank of Nigeria Plc v. Kyentu(1998) 2 NWLR (pt.536) 41. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the High Court of Lagos State (the Court below) by which it struck out the appellants statement of defence on the ground that it was filed out of time but condoned the respondents statement of claim which was filed out of time without an order of the Court below.

Being aggrieved, the appellants filed a notice of appeal with six (6) grounds. The respondents filed a brief on 05.04.18, but deemed as properly filed on 10.04.18, in which a notice of preliminary objection was raised that the appeal did not arise from any application made pursuant to the rules of the Court below but on obiter dicta of the Court below thus not arising from the ratio decidendi and that the grounds of appeal are vague, argumentative, repetitive, prolix and at large disclosing no reasonable ground of appeal and should be struck out along with the issues for determination tied to them citing in support Order 6 of the Court of Appeal Rules 2016 (the Rules of the Court), Order 39 Rule 1(1) of the rules of the Court below, Orakul Resources Ltd. v. N.C.C.

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(2007) 16 NWLR (pt.1060) 270 at 303, Dongtoe v. Plateau State Government (2001) 19 WRN 125 at 147, Ngige v. Obi (2006) 14 NWLR (pt.999) 1 at 106 109, Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt.109) 250 at 266, Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546 at 590, Kolawole v. Alberto (1989) 1 NWLR (pt.98) 382, Okoro v. Egbuoh (2006) 15 NWLR (pt.1001) 1 at 23, Ajide v. Kelani (1985) 3 NWLR (pt.12) 248, Adeleke v. Asani (2002) 8 NWLR (pt.768) 26 at 42, Korede v. Adedokun (2001) 15 NWLR (pt.736) 483 at 498 499, Amuda v. Adelodun (1994) 8 NWLR (pt.360) 1 at 23, 31.

The appellants reply to the preliminary objection is contained in the reply brief filed on 04.05.18 to the effect that the ruling of the Court below in pages 163 169 of the record joined issues on the status of the statement of claim and are thus linked to the grounds of appeal and the issues tied to them which the respondent did not cross-appeal against and cannot be heard to complain and that the grounds of appeal are clear and that even if the grounds are inelegant, the Court should still look at them, therefore the preliminary objection has no basis and should

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be dismissed citing in support the cases of Agbakoba v. INEC and Ors. (2008) 12 SCM (pt.2) 159, Omisore and Anor. V. Aregbesola and Ors. (2015) 7 SCM 92, Nguma v. A.-G., Imo State (2014) 3 SCM 137, Bamgboye v. University of Ilorin (1999) 6 SCNJ 324 and FRN v. Mohammed (2014) 3 SCM 53.

The grounds of appeal are set out in pages 183 186 of the record of appeal (the record) thus
GROUND OF APPEAL
GROUND ONE
The Honourable Trial Judge erred in law and misdirected himself when he held that the statement of claim was properly filed.
PARTICULARS
(a) The Honourable Court ordered pleadings on the 25th of February 2013.
(b) The claimant filed his Statement of Claim on the 7th of March 2014.
(c) The Honourable Court held the Statement of Claim as properly filed.
(d) The Honourable Court held that processes filed 376 days after Order of Court was proper.
(e) The learned trial judge failed to observe that in the circumstances of this case and in the interest of justice that the Statement of Claim filed 376 days after the order of 25th February, 2013 without satisfactory explanation, cannot be but

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unreasonable.
GROUND TWO
(a) The Honourable Trial Judge erred in law and misdirected himself by holding that there was no statutory time restraints to filing the Statement of Claim.
PARTICULARS
(a) Filing Statement of Claim 376 days after Order of Court to file pleading cannot in any way be held to be reasonable even where there is no statutory time limit.
(b) The Honourable Court coram Lawal Akapo J ordered the parties to file and exchange their pleadings within the time permitted by the Rules of the Court below.
(c) Where the Rules of Court is silent on the time for compliance with the Order, the law implies that the order should be performed within a reasonable time.
(d) Reasonable time cannot and should not be such that will wear out the parties, and their witnesses.
GROUND THREE
The Honourable Trial Judge erred in law and misdirected himself when he held that the claimant is not duty bound by any statutory provision or Order limiting the time the Claimant ought to have filed its pleadings.
PARTICULARS
(a) The order to file pleadings was made on the 25th of February, 2013.
(b) The Claimant went to

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sleep from the 25th of February 2013 to the 7th March 2014.
(c) The Claimant suddenly woke up from his slumber and decided to pursue his abandoned Suit.
(d) Equity aids the vigilant not the indolent.
GROUND FOUR
The Honourable Trial Judge erred in law by holding that the Defendant Statement of Defence was filed out of time thereby causing miscarriage of justice.
PARTICULARS
(a) There is no competent Statement of Claim before the Court.
(b) The statement of Defence filed in response to an incompetent Statement of Claim cannot be filed out of time.
GROUND FIVE
The Trial Judge erred in law when he held that it could not sit on Appeal over an already decided issue.
PARTICULARS
(a) The issue of time of filing Statement of Claim was never raised until the 19th of October 2015.
(b) The Defendant Counsel raised the issue of Date of filing on the 19th of October 2015 in response to the Claimant’s Counsel Statement that it filed its process in accordance with the Order of Court which did not specify time to file the said pleadings.
GROUND SIX
The Appellant was not given fair hearing by the learned

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Trial Judge, coram S.I. Sonaike J, when he arrived at a decision without considering the argument of the Appellant.
PARTICULARS
a) The parties joined issues on the issue of time lag within which the Order of Hon. Justice Lawal Akapo striking out the originating summons on the 25th of February 2013 and the 7th of March 2014. The Honourable Trial Judge held “… on the issue of the time lag within which the order striking out the originating summons and ordering pleadings were made and the time when the said ordered pleadings (statement of claim) was filled was not an issue raised before the Court by the Defendant and my Learned Brother having adjudged that service was proper was never called upon to decide on the veracity or otherwise of the Statement of claim and same is still not before me.”
b) The learned trial judge coram S.I. Sonaike J, having stated that the time of filing of pleadings by the Claimant was not an issue before his learned brother coram lghile J, he went ahead and held that “I am not in a position to sit on appeal over what had earlier been decided in this matter but to uphold same and any counsel who is not agreeable to any of

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the orders knows clearly what to do.
c) The issue of time of filing of pleadings was first raised before the learned trial judge coram S.I. Sonaike, the issue was joined by the parties and it was never decided upon by the lower Court.
d) The refusal to rule on the issue of time of filing of Statement of Claim is a miscarriage of justice and a breach of the Appellant’s right to fair hearing.

Considered dispassionately, the grounds of appeal (supra), are not vague or general in terms but give the respondent and the Court the substance of the complaint the respondent is to meet on the appeal without suggesting the respondent has been misled thereby, more so, the inelegance of grounds of appeal per se would not lead to their being struck out as the paramount aim of the Court is to attain substantial justice devoid of technicalities vide the case of Chiadi v. Aggo (2018) 2 NWLR (pt.1603) 175, KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (pt.1601) 473.

The record especially pages 142 169 thereof indicated that pleadings were ordered to be filed in the action on 25.02.13 and the respondent was said to have filed the

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statement of claim and other processes on 29.01.14 vide page 146 of the record where learned counsel for the respondent stated (unedited) that
We had since filed our matter 29/01/14 processes, statement of claimant other Court process ..

The respondent also stated through his learned counsel that the appellants were served with the statement of claim on 07.03.14 vide page 148 of the record.

The appellants learned counsel indicated on 12.11.14 in the proceedings in page 157 of the record that they had filed statement of defence. Then on 21.09.15 the respondents learned counsel complained that the statement of defence was filed out of time and was yet to be regularized. The appellants learned counsel retorted that it was the statement of claim that was filed out of time, therefore until the respondent regularized his statement of claim before the appellants would also regularize their statement of defence vide page 162 of the record to which the respondents learned counsel sought for an adjournment to regularize the processes and reconcile issues vide page 163 of the record.

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For clearness, I copy in extenso the proceedings of the Court contained in pages 164 169 of the record below
PROCEEDINGS
Parties absent.
Appearance:
Eubena Amedu for the Claimant.
Emmanuel Umoren with Mrs G. Alaba for the Defendants.
Amedu: The matter is based on hearing and we have reviewed the file and we feel that amendment may not be necessary.
Umoren: On the last date cost was awarded and same has not been count shed with and as such the claimant should be deemed further audience in this Court until the cost is paid. Order 49 Rules 10 (2).
Amedu: We are not aware to payment of cost, we are of the opinion that the cost was awarded in enormous as the counsel who appeared on the day the award of cost was made was not seized of the fact of the case and ought to say that we intend to regularise the fact of the case in that the process was commenced before the Hon, Court by way of originating process and the Court upon a considered ruling ruled that the process ought not to have been commenced by way of that process. By way of general writ of summons and statement of claim, which we

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have to wait for our client instruction to Court but we did not get there instruction until it is almost a year and we file our statement of claim on 7th March 2014 and serve the Defendant 7th March 2014 same date as the day of service and the Court has ruled when the Defendant raised the issue as to when they were served instead of the Defendant watch the statement of claim and the Defendant did not file a defence till 11th November 2014 which is clearly out of time as there is no application for extension of time, the learned Claimant counsel should have tendered for the closure of CMC and the cost awarded was enormous.
Umoren: The issue was earlier raised and this Court had ordered the claimant to regularise on the last date and that was why the Court awarded the cost the issue of filing after one year needs to be addressed and I urge the Court as ordered on the last dated that the Claimant regularise their pleadings and also if the date when the order was handed down was calculated in fixing whether we are out of time in filing our defence, we are clearly not out of time as we have 42 days after service to file a defence and any cause, the Defendant

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is an indigent and in fact we did make an application to Court, before Defendant waive the payment of default fees even our appearance is done properly.
Court: Having gone through the record of the Court, I am satisfied that the ruling of my learned brother Ighile J, on 22nd October 2014 is on whether the service of the statement of claim on the Defendant counsel was to serve or not which the Court adjudged as having been properly done, therefore having reconcile that, the Defendant now desires of having a defence filed ought to have filed same in line with the rules of Court dating back to when the service was effected on them on behalf of the Defendant and consequently bringing the necessary application for default fees and regularizing their defence. Having not done that till date shows that the defence they have before the Court is not in compliance with the rules of the Court. On the issue of the time lag within which the order striking out the originating summons and ordering pleadings were made and the time when the said ordered pleadings (statement of claim) was filed was not an issue raised before the Court by the Defendant and my learned

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brother having adjudged that service was proper was never called upon to declare on the veracity or otherwise of the statement of claim and same is still not before me. I am not in a position to sit on appeal over what had earlier been declared in this matter but to uphold same and any counsel who is not agreeable to any of the orders granted knows clearly what to do.
On therefore, as far as this process stands today, there is no statement of defence properly so called before the Court as the one filed was filed clearly out of time and same has not been regularise by the Court and on the contention of the learned defence counsel on the fact that the Defendant is indigent having been earlier raised before the Court and an exemption granted as regards the payment of default fees same is not on the record of the Court and the Defendant is entitled to pay the default fees to regularise the statement of defence.
On the Court entail of the learned Claimant counsel on the award of the cost on the last date, the said order which was validly made and having not be challenged nor appealed against remains competent and for failure to comply will serve the Court

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will be invoking the provisions of Order 49 Rule 10 (2) of the 2012 Rules of this Court and the appearance of the learned Claimant counsel is accordingly discountenanced with until the Claimant who is a Court opinion to the order of this Court made on 21st September 2015 purges himself of the contempt. I so hold.
(SGD)
As regards any of this application that any counsel may wish to make or has made such application must comply with the provisions of Order 39 by a contend application support with an affidavit and a written address and served on the other side. So I hold.
(SGD)
Umoren: ln the circumstances, we shall be asking for cost of the day and we are here in Court and they are not represented. We ask for N20,000,00 cost.
Court: On the application for cost by the learned defence counsel whose defence is not properly before the Court, same application will be refused in the interest of justice and same is accordingly refused and there shall be no order as to cost. The matter is therefore and for the last time for cmc. It is adjourned to 27th November 2015 at 10 a.m. for the last time for CMC.
(SGD)

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BENCH RULING
Having gone through the record of the Court, l am satisfied that the ruling of my learned brother lghile J. on the 22nd October 2014 is on whether the service of the Statement of Claim on the Defendant Counsel was proper or not which the Court adjudged as having been properly done. Therefore, having reconcile that the Defendant now desirous of having a defence filed ought to have filed same in line with the rules of Court dating back to when the service was effected on them on behalf of the Defendant and consequently bringing the necessary application for default fees and regularizing their defence. Having not done that till date shows that the defence they have before the Court is not in compliance with the rules of the Court.
On the issue of the time lag within which the order striking out the originating summons and ordering pleadings were made and the time when the said ordered pleadings (Statement of Claim) was filed was not an issue raised before the Court by the Defendant and my learned brother having adjudged that service was proper was never called upon to decide on the veracity or otherwise of the Statement of Claim and same is still not before

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me. I am not in a position to sit on appeal over what had earlier been decided in this matter but to uphold same and any counsel who is not agreeable to any of the orders granted knows clearly what to do. Therefore, as far as this process stands today, there is no statement of Defence properly so called before the Court as the one filed was filed clearly out of time and same has not been regularize by the Defendant and on the contention of the learned Defence counsel on the fact that the Defendant is indigent having been earlier raised before the Court and an exemption granted as regards the payment of default fees same is not on the record of the court and the Defendant is entitled to pay the default fees to regularize the statement of Defence.
On the contention of the learned Claimant Counsel on the award of the cost on the last date, the said order which was validly made and having not be challenged nor appealed against remains competent and for failure to comply with same, the Court will be invoking the provisions of Order 49 Rule 10(2) of the 2012 Rules of this Court and the appearance of the learned claimant counsel is accordingly discountenanced

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with until the Claimant who is a contemnor to the order of this Court made on 21st September 2015 purges himself of the contempt. I so hold.

The above reproduced portion of the proceedings of the Court below portrays that the status of the statement of claim was raised by the appellants but the Court below declined to review it, therefore the preliminary objection that the grounds of appeal with respect to the competence or otherwise of the statement of claim did not arise from the proceedings is untenable vide Akpan v. Bob (2010) 17 NWLR (pt.1223) 421. There is therefore no substance in the preliminary objection. I would dismiss it.

The appellants brief of argument filed on 19.12.17, but deemed as duly filed on 10.04.18, to the effect that having earlier held that the statement of claim was incompetent for being filed out of time the Court below, differently constituted, should not have reversed itself by holding that the statement of claim was competent, therefore the statement of claim should be struck out on ground of incompetence citing in support the cases of Labour Party v. INEC (2009) 6 NWLR (pt.1137) 315 at 339, Iwunze v.

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FRN (2014) 6 SCM 77 at 99, Madukolu v. Nkemdilim (1962) 1 All NLR (pt.4) 587, Ngere and Anor. v. Okuruket and Ors. (2014) 10 SCM 167, Okafor v. Ezenwa (1992) 4 NWALR (pt.237) 611, Azuh v. UBN (2014) 10 SCM 114, Witt & Busch Ltd. v. Dale Power Systems Plc (2007) 17 NWLR (pt.1062) 1 at 25, Awodi and Anor. v. Okoye (2004) 18 NWLR (pt.905) 472, Ojukwu v. Governor of Lagos State (1986) 2 NWLR (pt.76) 39.

It was further argued that as the statement of claim was filed out of time and was therefore incompetent the appellants statement of defence should not have been held by the Court below to have been filed out of time; and that if the Court below had dispassionately considered the materials before it, it would not have held that there was no statement of defence which erroneous holding caused miscarriage of justice to the appellants as the Court below did not consider the appellants submissions and arguments on the issue thus denying the appellants fair hearing which should render the entire proceedings of 19.10.15 a nullity citing in support the cases of Nwokoro and Ors. v. Onuma and Anor. (1990) 3 NWLR (pt.136) 22, Bayol v. Ahemba (1999) 10

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NWLR (pt.623) 381, Okafor v. A.-G., Anambra State (1991) 6 NWLR (pt.200) 659 at 678, Adigun v. A.-G., Oyo State (1987) 1 NWLR (pt.53) 678, Obodo v. Olomu (1987) 3 NWLR (pt.59) 111, Ogbu v. Ani (1994) 7 NWLR (pt.355) 128 at 148, FRN v. Nwosu (2016) 17 NWLR (pt.1541) 226 at 303, Chitra Knitting and Weaving Manufacturing Co. Ltd. v. Akingbade (2016) 9 SCM (pt.1) 60 read with Section 36 of the Constitution of the Federal Republic of Nigeria 1999 and Order 25 Rule 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 2012 (the then rules of the Court below); upon which the appellants urged that the appeal be allowed and the reliefs sought in the notice of appeal be granted.

The respondent argued in the brief that the Court below had made an order in its ruling in pages 142 144 of the record for the parties to file and exchange pleadings within the time permitted by the rules of the Court below which by Order 15 thereof provides for 42 days within which to file statement of claim not 7 days as wrongly stated by the appellants who did some violence to the rules of the Court below by reading into the rules what is not contained therein contrary

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to established practice not to read into an enactment what is not contained therein vide Salami v. Chairman LEDB (1989) 5 NWLR (pt.123) 539 at 555,Osondu v. FRN (2000) 12 NWLR (pt.682) 483 at 500, U.T.B. (Nig.) Ltd. v. Ukpabia (2000) 8 NWLR(pt.670) 570 at 580; that the ruling of the Court below read as a whole as contained in pages 142 144 of the record indicated the Court below refused to join Bank PHB as a party in the action contrary to the false submission of the appellants who should not have misrepresented what the Court below had said vide B and B Construction Ltd. v. Ahmed (1998) 9 NWLR (pt.566) 486 at 493; and that the Court below did not comment on the competence or otherwise of the statement of claim.

It was also contended by the respondent that there was no application by the appellant with respect to the competence of the statement of claim and the Court below properly declined to comment on it in its ruling, therefore the allegation of breach of the right to fair hearing made by the appellants does not arise, nor did the Court below set aside its own earlier order on the filing of the statement of claim; and that the Court below

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could have been at liberty to set aside its order had it discovered it was fundamentally defective or given without jurisdiction, citing in support the cases of Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427 at 621, Adebayo v. A.-G., Ogun State (2008) 7 NWLR (pt.1085) 201 at 221 222, Madu v. Mbakwe (2008) 10 NWLR (pt.1095) 293 at 327; upon which the respondent urged that the appeal be dismissed.

There is no gain-saying it from the excerpt (supra) of the record that the appellants were prepared to consent the regularization of the statement of claim which was filed out of time. Considering the chequered history of the action as disclosed in the record, justice demands that the statement of claim which was reacted to by the appellants who had filed a statement of defence traversing it, though filed out of time, shall be deemed as properly filed and served in order to save time and cost as doing so would not cause injustice to the appellants but rather fast-track the proceedings in the action for expeditious dispensation of justice in the action which was instituted in 2012 vide Ayanwale v. Atanda (1988) 1 NWLR (pt.68) 22 where a statement of claim

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filed out of time which was not formally objected to was held valid on the ground that parties may consent to wrong procedure in such a case especially if no injustice would be caused to any of them as in this case. See also Johnson v. Aderemi (1955) 13 WACA 297, Buhari v. INEC (2008) 19 NWLR (pt.1120) 246.
The Court below declined to interfere with the status of the statement of claim as indicated in the excerpt (supra) of the proceedings of the Court below. Since parties had exchanged pleadings, the Court below should have, in the interest of even-handed justice, deemed the appellants statement of defence as duly filed and served even if the appellants had not applied for the said order vide U.B.A. v. Nwora (1978) 11 12 S.C. 1, Nkwocha v. MTN (2008) 11 NWLR (pt.1099) 460, British American Insurance Co. Ltd. v. Sillo (1993) 2 NWLR (pt.277) 507, Savannah Bank of Nigeria Plc v. Kyentu(1998) 2 NWLR (pt.536) 41.
It logically follows that with the deeming of the statement of claim as duly filed and served the statement of defence filed in reaction to the statement of claim is also deemed as properly filed and served today under Section 15

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of the Court of Appeal Act 2004, as amended, which inter alia empowers the Court to do what the Court below should have done.

In conclusion, I would allow the appeal in part and order that the statement of defence be deemed as duly filed and served without payment of penalty consequent to the deeming of the statement of claim. The case is remitted to the Court below for expeditious determination. Parties to bear their costs.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Joseph Shagbaor Ikyegh JCA, granted me the privilege of reading the leading Judgment just rendered in this appeal. I agree and adopt the Judgment as my own. I have nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read the lead judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA and I am in agreement with the judgment.
I also hold that the appeal succeeds in part and I abide by the consequential orders in the lead judgment.

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Appearances:

Mr. E. Umoren with him, G. Alaba Esq. and Mr. U. NnajiFor Appellant(s)

Mr. E. Amedu with him, Mr. O. Eyah, F. C. Ibe, Esq. and A. P. Obarugbi, Esq.For Respondent(s)