SENATOR DALHAH AHMADDAMZOMO V. SALEH MUSA & ANOR.
(2013)LCN/6054(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2013
CA/K/219/2010
RATIO
“It needs be stated that the power of the Court either to grant the defendant an extension of time within which he may file his Statement of Defene or award judgment in default of pleadings, is discretionary and not mandatory. Such discretion, must at all times be exercised in the interest of justice. In Mobil Producing Nigeria Unlimited & Anor vs Chief Simeon Monokpo and Anor (2003) 18 NWLR Part 852 pages 346, the Supreme Court, per Uwaifo, J.S.C., held that the practice have always been to give priority to hearing motions seeking to regularize a process. That is the hallmark of a proper exercise of discretion. If the Motion to regularize succeeds, the other Motions or Motion seeking to terminate the proceedings will be withdraw, and, in appropriate cases there will be compensation by way of costs. See Nalsa & Team Associates vs. NNPC (1991) 8 NWLR part 212 page 652 at 667, Long John vs. Blakk (1998) 6 NWLR part 555 page 524 at 550, 551 – 552. Also in U.B.A. Ltd vs. Nwora (1979) 11 – 12 SC (Report) 1, the supreme court stated: “Admittedly, where no Statement of Defence has been filed, the Court, in its discretion, has the power under Order 18 Rule 6 of Rules to extend the time in order to enable a defendant to file his Statement of Defence. Further, it must be pointed out that though Order 24 Rule 11 is expressed in mandatory terms, the rule is not mandatory but discretionary, and the Court retains its discretionary power whether to give judgment or to extend the time for the defendant to filed his defence when it is just to do so.” PER ORJI-ABADUA J.C.A.
“Order 10 Rule 1 of the Court of Appeal Rules, 2011, stipulates the procedure for raising a preliminary objection to the hearing of an appeal, requiring the objector to file a Notice to that effect, giving the Appellant at least three (3) clear days, before the hearing of the appeal and setting out the grounds of the objection, and filing the said Notice together with twenty (20) copies thereof with the Registry of the Court. By Order 10 Rule 3 of the Rules of this Court, if a Respondent fails to comply with the requirements of Rule 1, the Court may refuse to entertain the objection. There are dozens of decided authorities on the application of the said Order 10 Rule 1, where this Court has repeatedly refused to entertain objections to the hearing of appeal, where the objection is not properly originated, See the case of MOYOSORE VS. GOVERNOR OF KWARA STATE (2012) 5 NWLR (Pt. 1293) 242, ratios 23 and 24; ESOHO VS. ASUQUO (2007) ALL FWLR (Pt. 359) 1355; Also, the law is well settled that an issue for determination must flow from and be related to the grounds of appeal. Where it is not so done the issue must be discountenanced by the Court, together with the arguments there under. See the case of AFRIBANK VS. YELWA (2011) ALL FWLR (Pt. 585) 299 at 30 to 310; NWAIGWE VS. OKEKE (2009) ALL FWLR (Pt. 431) 943. Thus, even where the issue raised by the Respondents appears legitimate, questioning whether Appellant can formulate grounds of appeal outside the ruling of the trial Court appealed against, the law still requires the objection to be lawfully and properly raised, to invoke the powers of the Court to consider. ” PER MBABA J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
SENATOR DALHAH AHMADDAMZOMO Appellant(s)
AND
1. SALEH MUSA
2. HAMSU MAGAJI Respondent(s)
ITA G. MBABA J.C.A. (Delivering the Leading Judgment): This is an appeal against an interlocutory decision of Jigawa State High Court in Suit No. JDU/13/2009, delivered on 7/6/2010 by Hon. Justice MUKTAR ADAMU (HON. CHIEF JUDGE)
A brief facts of the case shows that Appellant (as plaintiff at the Court below) instituted the action on 5/11/2005 when he sought an order of the trial Court to issue a writ of Summons and place same on the Undefended list, for monetary claims against the Respondents. The application was subjected to several technical objections and was finally placed on the Undefended List. In the writ of Summons, Appellant claimed for the sum of two million, four hundred thousand Naira (N2,400,000.00) being the balance of two million Six hundred thousand (N2,600,000.00) of two plots sold by the Respondents without his (Appellant) consent and permission. Appellant filed the writ together with an application for the money judgment pursuant to Order 11 Rule 1 of the Jigawa State High Court Civil Procedure Rules, 2008.
The Respondents filed a memorandum of conditional appearance on 20/11/2009 and a preliminary objection on 4/12/2009. On the date of hearing the preliminary objection 30/12/2009 the Appellant applied to be allowed to file his statement of claim and, so on 30/12/2009, Appellant filed a new writ of Summons together with application for Summary judgment. When the matter came upon 14/1/2010, the Respondents challenged the competency of the writ on the ground that the Court cannot hear a Suit with two concurrent writs.
In a considered ruling the trial Court struck out the application for Summary judgment and expunged the second writ of Summons from its record. It also ordered that the matter be heard and determined on evidence, thereby transferring the case to the general Cause list, that was on 18/2/2010, Prior to that Ruling on 18/2/2010, the Appellant had served the Respondents with an application for final judgment which was dated 18/2/2010, and the same was fixed for hearing on 17/3/2010, and was opposed by the Respondents,
On 7/6/2010, the trial Court ruled against the Appellant and struck out the application for Summary judgment for being incompetent, bare, and unarguable. The parties had filed their pleadings before the ruling, and the Respondent on 18/3/2010.
This appeal is against that interlocutory ruling as Appellant was aggrieved by the Order striking out the application for default judgment.
Appellant filed the Notice of Appeal on 16/6/2010 and disclosed 3 grounds of appeal (Pages 116 to 118 of the Records of Appeal). He filed his brief of argument on 21/7/2010 and distilled three (3) Issues for determination, as follows.
“(1) Whether or not a Court can refuse any application on its own dictate without recourse to Law/rules of Court,
(2) Whether or not a party can apply for extension of time to file any process before the time elapse (sic) and without a formal application (motion and affidavit)
(3) Whether or not there is anything in filing an application same date after not before the ruling which had the ruling been in another way that application filed becomes useless.”
Appellant did not relate the Issues to the grounds of appeal. It is assumed that the three issues derived from the three grounds, serially.
The grounds of appeal (without particulars) were:
(1) The lower Court erred in law which occasioned a substantial miscarriage of justice for refusing the appellant’s application for the Summary judgment without defence at all as against bringing an affidavit and other processes which disclosed a prima facie defence,
(2) The Lower Court erred in law which occasioned a substantial miscarriage of justice for extending time for the respondents to file their processes out of time before the time elapse (sic) and without a reasonable application to that effect (motion and affidavit),
(3) The Lower Court erred in Law which occasioned substantial miscarriage of justice for dismissing the appellants motion praying for the judgment in his favour for the defendants’ failure to file their statement of defence within prescribed time (14 days) and for non disclosure of any defence”‘
The Respondents filed their Brief of arguments on 6/8/2010 and formulated two (2) Issues for determination, namely:
“(1) Whether the appellant can formulate grounds of appeal outside the ruling of the trial Court he appealed against,
(2) Whether the trial Court is right in striking out the appellant’s application for final judgment for being incompetent and not properly before the Court,”
The appeal was heard on 20/2/2013 when parties adopted their briefs and moved us accordingly.
I have to state, straight away, that the 1st Issue raised by the Respondents cannot qualify as issue for the determination of the appeal, as it is rather inform of an objection to the issues formulated by the Appellant. It cannot also qualify as a preliminary objection to the Appeal, having not been properly raised as such.
Order 10 Rule 1 of the Court of Appeal Rules, 2011, stipulates the procedure for raising a preliminary objection to the hearing of an appeal, requiring the objector to file a Notice to that effect, giving the Appellant at least three (3) clear days, before the hearing of the appeal and setting out the grounds of the objection, and filing the said Notice together with twenty (20) copies thereof with the Registry of the Court.
By Order 10 Rule 3 of the Rules of this Court, if a Respondent fails to comply with the requirements of Rule 1, the Court may refuse to entertain the objection. There are dozens of decided authorities on the application of the said Order 10 Rule 1, where this Court has repeatedly refused to entertain objections to the hearing of appeal, where the objection is not properly originated, See the case of MOYOSORE VS. GOVERNOR OF KWARA STATE (2012) 5 NWLR (Pt. 1293) 242, ratios 23 and 24; ESOHO VS. ASUQUO (2007) ALL FWLR (Pt. 359) 1355;
Also, the law is well settled that an issue for determination must flow from and be related to the grounds of appeal. Where it is not so done the issue must be discountenanced by the Court, together with the arguments there under. See the case of AFRIBANK VS. YELWA (2011) ALL FWLR (Pt. 585) 299 at 30 to 310; NWAIGWE VS. OKEKE (2009) ALL FWLR (Pt. 431) 943.
Thus, even where the issue raised by the Respondents appears legitimate, questioning whether Appellant can formulate grounds of appeal outside the ruling of the trial Court appealed against, the law still requires the objection to be lawfully and properly raised, to invoke the powers of the Court to consider. The Respondents Issue one is therefore hereby struck out together with the arguments thereunder in the Respondents’ Brief, not being an issue for the determination of the appeal arising from any ground of the appeal.
But the blunders of the Respondents in raising valid objection to the appeal, notwithstanding, has the Appellant raised valid Issue(s) and ground(s) of appeal in this appeal to invoke the jurisdiction of this Court to consider the appeal?
By Order 6 Rule 2(b) and Rule 3 of the Court of Appeal Rules, 2011:
Rule 2(3):” The Notice of appeal shall set forth concisely and under district heads the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered consecutively,
Rules 3:” Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
And by Order 6 Rule 6:
“The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
The practice of appellate Courts is to consider appeals on the issues distilled from the grounds of appeal, articulated in the Brief of arguments. Order 18 Rule 3(1) provides for the Issues arising in the appeal, and by sub rule (3):
“The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below and, wherever necessary, reference shall also be made to all relevant documents or exhibits which they propose to rely in argument.”
Of Course, authorities are replete that grounds of appeal and issues distilled therefrom must be founded on live complaints in the judgment appealed against. That is, the ground of appeal and the Issue must relate to the ratio decidendi of the decision of the Court below. See the case of KOTOYE VS. SARAKI (1992) 11/12 SCNJ (Pt. 1) 26 ratio 5, where the Supreme Court held:
“Where a ground of appeal cannot be fixed and circumscribed within the particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision A fortiori, no issue for determination can be formulated therefrom.” See also, G the case of OLUFEAGBA VS. ABDULRAHEEM (2010) ALL FWLR (Pt. 512) 1034 ratio 2.Appeals are argued on issues distilled from the grounds of appeal and the issues must be live issues relating to and flowing from the decision appealed against See the case of OSADARE AND ORS VS. LIQUIDATOR NIGERIA PAPER MILLS (2011) LPELR 9269 (CA). OMILANI VS. OMOSORE (2007) ALL FWLR (Pt. 354) 351; CBN VS. AMAO (2007) ALL FWLR (Pt. 351) 1490. See also LAGOS STATE UNIVERSITY VS. NUC (2010) LPELR, where this Court held:
A ground of appeal is the complaint of the Appellant against the judgment of the Lower Court. Such a complaint must be based on the live issue or issues in controversy in the Suit. Issues, so framed for determination of the appeal must arise from such ground.
I have already reproduced the grounds of appeal and the issues distilled from them by the Appellant in this case. Even a cursory look at the grounds and the issues thereform can show that the Issues 1 and 2 for determination are, completely, abstract and unrelated to any of the grounds of appeal while the 3rd issue is completely vague and devoid of reasonable comprehension. For ease of reference I hereby reproduce again the said Issues and grounds of appeal:
ISSUES: (4) Whether or not a Court can refuse any application on its own dictate without recourse to Law/rules of Court,
(5) Whether or not a party can apply for extension of time to file any process before the time elapse (sic) and without a formal application (motion and affidavit)
(6) Whether or not there is anything in filing an application same date after not before the ruling which had the ruling been in another way that application filed becomes useless,”
Grounds of appeal (without particulars):
(2) The lower Court erred in law which occasioned a substantial miscarriage of justice for refusing the appellant’s application for the Summary judgment without defence at all as against bringing an affidavit and other processes which disclosed a prima facie defence,
(3) The Lower Court erred in law which occasioned a substantial miscarriage of justice for extending time for the respondents to file their processes out of time before the time elapse (sic) and without a reasonable application to that effect (motion and affidavit).
(4) The Lower Court erred in Law which occasioned substantial miscarriage of justice for dismissing the appellants notion praying for the judgment in his favour for the defendants’ failure to file their statement of defence within prescribed time (14 days) and for non disclosure of any defence”‘
I had earlier stated that Appellant did not relate the issues to the grounds of Appeal, and one only assumed that the three issues arose from the three grounds of appeal, serially. Assuming therefore that issue 1 derived from the 1st ground of appeal, it is difficult to appreciate how the issue – Whether or not a Court can, refuse any application on its own dictate without recourse to law/rules of Court, can reasonably derive from the 1st ground, which claimed that the trial Court erred in law for refusing the Appellant’s application for summary judgment without defence at all as against bringing an affidavit and other processes which disclosed a prima facie defence!
In the same way, the 2nd Issue and the 2nd ground of appeal do not appear to be in tandem, because “whether the trial Court, is right in striking out the appellants application for final judgment for being incompetent and not properly before the Court” cannot possibly derive from the ground that “The lower court erred in law” for extending time for the respondents to file their processes, out of time before the time elapse (sic) and without a reasonable application to that effect (motion and affidavit)!
The same conflicts and anomally is confronted, if issue 1 is related to ground two, and/or issue 2 to ground 1!
The 3rd ground of appeal, that the lower Court erred in law “for dismissing the appellants motion praying for the judgment in his favour for defendant’s failure to file their statement of defence”and for non disclosure of defence can not also be located in the 3rd issue which, as earlier stated, does not seem to make any sence.
Appellant’s Notice of appeal reads:
“TAKE NOTICE THAT, The appellant being dissatisfied with the ruling/decision of the lower Court (high court Jigawa state) presided over by his Lordship Muktari Adamu in Suit No. JDU/13/2009 has decided to appeal to this Court upon the ground stated in paragraph 3 below and take further notice that the appellant will at the hearing of the appeal seek the relief stated in paragraph 4 below and the parties directly affected by the appeal are those stated in paragraph 5 below.
1. a Date of the Decision/ruling – 7th-6-2010
1, b Date of the appeal – 16th-6-2010
Part of the decision appealed against – the entire ruling/decision of the Lower Court.”
(See page 116 of the Records).
It is curious that the date of the appeal is typewritten into the notice of Appeal by the Appellant even before filing the process! There is also the irony that the trial Court granted Appellant leave on 7/6/2010 to appeal against the interlocutory decision, delivered on the same date (7/6/2010), without any evidence of formal application (motion with affidavit), and yet the Appellant was accusing the trial judge of “extending time for the Respondents to file their processes out of time … without a reasonable application to that effect (motion and affidavit)!
I have read through the Ruling of the Court below, delivered on 7/6/2010. The main plank on which the lower Court struck out (not dismissed) the application for summary judgment, sought by the Appellant, was that on 18/2/2010 the Court had earlier declined to hear Appellant’s claim as Undefended matter and had transferred the case to the general Cause List. The Court had also granted the Respondents time to file Statement of defence, and the Respondents had filed the said process (Statement of defence). Appellant was aware of all these before moving his application for Summary judgment on 17/3/2010, (which application was filed on the same 18/2/2010 when the Suit was transferred to the general cause list. See page 19 – 21 of the Records. Hear the trial Court:
“It is very clear from the record that the application in issue was dated 18th day of February, 2010 and it was presented before the Registry for filing also on 18th February, 2010” The application was already in Court’s file before the ruling was given on the 18/2/2010 and immediately after the ruling, the claimant’s Counsel informed the Court that they have filed a motion on notice and applied for a date for hearing the motion, The application filed was in anticipation of the ruling, It was filed without the claimant regularizing his position which become (sic) the subject of contention and given (sic) rise to the ruling of 18/2/2010″The claimant’s Counsel was also unmindful of the fact that the defendants were entitled to ask for time to enter appearance and file their defence because at the earlier stage before the ruling there was no proper and competent claim to defend until it was declared regularized by the court’s ruling of 18/2/2010″but the Counsel for the defendants rightly applied for time to file statement of defence of the defendants and that was granted by the Court “It was only, on 18/2/2010 that a correct and competent originating process emerged, With that background all the references to the originating process made in paragraphs 4, 5 and 6 in the affidavit in support are references to serious defective documents”.The proper order to make is to strike out the application of the claimant and it is hereby struck out.”
It can be seen from the above, that the complaints of the Appellant, as per the grounds of appeal and issues therefrom, appear fictional and not borne out of the judgment appealed against. The said grounds and issues are liable to be stuck out.
Even if this appeal were to be heard on the merits (had the lapses stated above which made the appeal incompetent, not been highlighted), the appeal would still be doomed, as can be appreciated on the following considerations:
(1) The Issue 1, which queried whether the court can refuse any application on its own dictate, without recourse to law/rules of Court does not relate to this appeal, which shows that the trial Court heard the application and struck out the same after due consideration of the affidavit evidence and addresses of Counsel, and on coming to the conclusion that the application had no merit, as the Respondents had filed their defence, (see page 17 to 20 of the Records). It would have been a grave violation of the Respondents’ right of fair hearing under Section 36(1) of the 1999 Constitution for the trial Court to grant Appellant’s application for Summary Judgment shutting the Respondents out.
(2) Appellant’s Issue 2 querying whether or not a party can apply for extension of time to file any process before the time elapse and without a formal application, flies in the face of the Ruling which shows that ” defendants rightly applied for time to file statement of defence of the defendants and that was granted by the Court,” (Page 20 lines 1 and 2 of the Record of Appeal).
Appellant had not impeached the Record of Appeal which he caused to be transmitted to this Court, and the same is binding on all the parties and on this Court to follow. See the case of GARBA VS. OMOKHODION (2011) 15 NWLR (Pt, 1269) 145 at 180.
Even if the Respondents were not to have made a formal application, by way of motion on notice with affidavit in support, for the said extension of time to file the process, and did so orally, they would still be on the side of the law, so long as the application was granted! And the Appellant was also a beneficiary of such discretional gesture on page 21 of the Records (the same Ruling).
I had earlier held that Issue 3 is vague and senseless and liable to be struck out, and being not distilled from any of the grounds of the appeal the same is accordingly struck out under Order 6 Rule 3 Court of Appeal Rules, 2011.
On the whole, I hold that the Appeal is grossly incompetent, and completely devoid of merit and should be dismissed. It is, accordingly, dismissed.
Appellant shall pay the cost of this appeal, assessed at N30,000.00 (Thirty Thousand Naira Only), to the Respondent.
DALHATU ADAMU, CFR, J.C.A: I have been privileged to go through the draft of the judgment just delivered by my learned brother Mbaba JCA in this appeal. The three (3) issues formulated cannot be related to the grounds of appeal and all the 3 grounds of appeal are not founded on live complaints in the judgment appealed against. In other words the grounds of appeal are not related to the ratio decidendi of the decision of the trial court – See Kotoye vs. Saraki (1992) 11/12 SCNJ (Pt.1) 26 and Olufeagba vs. Abdyulraheem (2010) All FWLR (Pt.512) 1034.
Issue No.3 is vague and senseless and is liable to be struck out as not been distilled from any of the grounds of appeal. I hereby strike out the issue under Order 6 rule 3 of the Court of Appeal Rules 2011.
Consequently I hereby hold that the appeal is incompetent and completely devoid of any merit, It should be dismissed and I accordingly also dismiss it for the more detailed reasons stated in the lead judgment. I abide by the order on costs as made in the lead judgment which I hereby endorse.
THERESA NGOLIKA ORJI-ABADUA J.C.A: I have read the judgment of my learned brother, Mbaba, J.C.A, and I must observe that out of the issues distilled by the parties that seemingly emerged from the grounds of appeal of the Appellant’s Notice of Appeal is, the Respondent’s issued No. 2. It appears as if it arose from ground No. 3 and, it questioned, ‘whether the trial Court is right in striking out the Appellant’s application for final judgment for being incompetent and not properly before the court. This, issue, I must note is not without its inherent lapses. It is not squarely on the said ground No. 3.
However, by the record of this appeal, particularly, as shown in the ruling delivered on the 7th June, 2010, it is clear that on the date of 18/2/10 when the Appellant via his Counsel, filed his Motion on Notice for judgment to be entered in his favour, the Respondents, had on the same date applied to the lower court for extension of time within which they may file their statement of Defence out of time, and which said application was granted to the Respondents by the lower Court.
It needs be stated that the power of the Court either to grant the defendant an extension of time within which he may file his Statement of Defence or award judgment in default of pleadings, is discretionary and not mandatory. Such discretion, must at all times be exercised in the interest of justice.
In Mobil Producing Nigeria Unlimited & Anor vs Chief Simeon Monokpo and Anor (2003) 18 NWLR Part 852 pages 346, the Supreme Court, per Uwaifo, J.S.C., held that the practice have always been to give priority to hearing motions seeking to regularize a process. That is the hallmark of a proper exercise of discretion. If the Motion to regularize succeeds, the other Motions or Motion seeking to terminate the proceedings will be withdraw, and, in appropriate cases there will be compensation by way of costs. See Nalsa & Team Associates vs. NNPC (1991) 8 NWLR part 212 page 652 at 667, Long John vs. Blakk (1998) 6 NWLR part 555 page 524 at 550, 551 – 552. Also in U.B.A. Ltd vs. Nwora (1979) 11 – 12 SC (Report) 1, the supreme court stated:
“Admittedly, where no Statement of Defence has been filed, the Court, in its discretion, has the power under Order 18 Rule 6 of Rules to extend the time in order to enable a defendant to file his Statement of Defence. Further, it must be pointed out that though Order 24 Rule 11 is expressed in mandatory terms, the rule is not mandatory but discretionary, and the Court retains its discretionary power whether to give judgment or to extend the time for the defendant to filed his defence when it is just to do so.”It was, further held by the Supreme Court that the learned Chief Judge, in the exercise of his power under Order 18 Rule 6, should have extended the time suo motu up to 18th April, 1978, the day when he delivered his ruling. By ordering the defendants, as he did, he was merely taking refuge in an unnecessary legal technicality which would obviously delay the hearing of the action further. He should have extended the time to file the Statements of Defence to the date of his ruling, order that the Statement of Defence already filed had been duly filed and then fix a date for the hearing of the case.
Further, in Ekulo Farms Limited vs. Union Bank of Nigeria Plc. (2006) 4 SCNJ 164 which was commenced under the undefended list procedure, the Appellants, i.e., the Defendants, filed an application praying for extension of time to file the Notice of intention to defend the action and also prayed for an order deeming the Notice of Intention to defend and the affidavit in support as duly filed and served. The learned trial Judge granted the prayers. But he went further to allow the Defendants to defend the action by transferring the suit to the General Cause List and also by ordering pleadings. lt was acknowledged by the Supreme Court therein that the Defendants did not move any Motion (oral or otherwise) to that effect, and that the Plaintiff was not heard before the Order of granting leave to defend the action was made. The trial Judge did not hear the parties before he reached his decision to allow the Defendant to defend the action. The apex Court said that ordinarily, he was wrong. He was wrong not to allow the Defendants move to show that they have a prima facie defence to the action. He jumped the gun. The apex Court further stated that what the learned trial Judge did, was in essence, to grant the Appellants as Defendants, leave to defend the action. The question is, can the Plaintiff/Respondent appeal against the decision as of right? The Supreme Court, per Musdapher, J.S.C. (as he then was) then held that:
“The provisions of section 220(2)(a) of the 1979 Constitution clearly preclude the Court of Appeal from considering an appeal on its merit on an issue where a High Court grants a defendant an unconditional leave to defend an action.”
He referred to the case of N.B.N. vs. Weide & Company (Nig) Ltd & anor (1996) 8 NWLR Part 465 page 150, per Belgore, J.S.C. (as he then was) and further expressed that there is no right of appeal in the three instances mentioned therein. There is no right of appeal for the Respondents to appeal to the court of Appeal on the question of granting the Defendants leave to defend the action.
The main plank of the aforestated decisions is that the trial Court could suo motu grant to the defendant an extension of time within which to file his statement of defence in the suit without occasioning any miscarriage of justice to the Plaintiff since it is usually in the interest of justice that the defendant would be given the opportunity to defend the suit filed against him. lt may be wrong procedurally, but, it is not something when done, is capable of vitiating the proceeding. In clarifying the position of the law, the Supreme Court, copiously stated in Ekulo Farms Ltd (supra) that the decision allowing the Defendant to defend an action is not appealable. This, obviously, means that this appeal, ought to be struck out. But, because, the issue of right of the Appellant to appeal against the said decision of the lower Court was neither raised in a ground of appeal nor formulated as an issue from any ground of appeal in the Appellant’s Notice of Appeal, I will be inclined to dismiss this appeal. Accordingly, this appeal is hereby dismissed.
Appearances
Dalhatu Shehu Usman Esq., with him M. A. Alhafizee Esq.,For Appellant
AND
Baffa ALASAM Esq.,For Respondent
