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TIMINIMI v. AWILIKI & ORS (2021)

TIMINIMI v. AWILIKI & ORS

(2021)LCN/15637(CA)

In The Court of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, May 31, 2021

CA/AS/105/2015

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

HON. GEORGE TIMINIMI APPELANT(S)

And

1. RAMSOME AWILIKI 2. ACCESS BANK PLC 3. FIRST CITY MONUMENT BANK PLC RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT HAS THE LEGAL DUTY TO HEAR ANY COURT PROCESS BROUGHT BEFORE IT

In MOBIL PRODUCING NIGERIA UNLTD VS. MONOKPO (2004) ALL FWLR (PT. 195) 628 the Supreme Court stated thus:

“A Court of law or Tribunal has a legal duty in our adjectival law to hear any Court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A Judge whether of a Court of law or Tribunal, has no jurisdiction to come to the conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st Appellant filed on 1st May, 1999 is against the provisions of Section 33(1) of the 1979 Constitution on fair hearing, and particularly, the natural justice rule of audi ateram partem. The Applicant/Appellant was not a contemnor, who in any case is expected to be heard after purging himself of the contempt.”
Hear Uwaifo, J.S.C. speak in the MOBIL PRODUCING NIG, UNLTD. V. MONOKPO case supra:
“It is not only essential but mandatory for a Court before which a motion (or application) has been brought to hear and determine it at the appropriate time. It has no right to refuse to hear it unless possibly in a proper circumstance in the exercise of its punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard. Otherwise the Court must set the motion down…..”
PER DANJUMA, J.C.A.

WHETHER OR NOT THE COURT CAN INQUIRE INTO THE VALIDTY OF A REPRESENTATION WHERE A LEGAL PRACTITIONER ANNOUNCES HIS APPEARANCE FOR A PARTY

It is trite law that once a legal practitioner announces his appearance for a party, it is not the duty of the Court to inquire into the validity of the representation. By Section 33(1) of the Constitution for the determination of civil rights and obligations, a citizen has the fundamental right to either represent in Court or be represented by a counsel of his own choice. The right to represent one’s case at a hearing before Court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage. The Court cannot validly exercise any discretion to curtail the fundamental right of a litigant to a trial within the meaning of S. 33 of the Constitution. It is also trite that any law restricting the method or mode in which to exercise a fundamental right guaranteed by the Constitution will be inconsistent with the Constitution… Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the Court has no business into inquiring whether the counsel was regularly or improperly briefed. The Court must allow the counsel to represent the party without any restriction or any procedural requirement… There is no rule of law or practice that limits the number of counsel to be engaged by a party to any adjudication”. PER DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The appeal herein is one against the default judgment and the grant of an order of Decree Absolute by the trial Court on 25th June 2014 and 3rd March, 2015 respectively.

The Appellant herein was a Judgment Debtor in the Suit of the 1st Respondent herein for the claim of a sum of money as an agreed commission for facilitating the purchase of a house for the Appellant.

The crux of the appeal as relevant is that on the 3rd of March, 2015, when the case came up at the trial Court after series of adjournment and an earlier order discharging some garnishees and making the Decree Nisi absolute against the 1st and 9th garnishee Banks, the Judgment Debtor who appeared in Court at the resumed hearing on 3rd March, 2015 through Mr. E. Omare as lead counsel was jettisoned as, the Court agreed with Mr. Orhiunu Esq. for the Judgment Creditor/1st Respondent that Mr. Omare could not appear, he not having filed a Notice of change of counsel; and more so that the other counsel he purported to be leading were not present in Court.

​Accordingly, his client’s Motions for the setting aside of the Default Judgment and Decree Absolute made were not allowed to be argued but rather struck out.

The Court concluded thus:
“One needs to look at the judgment sum to ensure not more than the Judgment debt is garnished. Case recalled Registrar submits calculation made by Mrs. Ekee at the Registry. The total Debt is N7, 350.00 the 2nd garnishee has N6, 954, 476.73.
Mr. Orhiunum now agrees that only N395, 523.27 is due to the creditor which ought to be attached to the 9th Garnishee 1st City Monument Bank.
In the circumstance, the order is made absolute in the sum of N6, 954, 476.73 in the 2nd garnishee and N395, 525.27 in the 9th garnishee.
For the avoidance of doubt, the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 10th and 18th Garnishees are hereby discharged. My previous order absolute is therefore set aside as being made by mistake.
The application dated 10th December, 2014 and 23rd December, 2014 are struck out.”

It is for the aforesaid that the judgment Debtor had lodged this appeal on the grounds set out below; thus:
GROUND 1
The learned trial Judge erred when he made the order of Decree nisi of 3/12/2014 absolute against the 2nd and 9th Garnishees/Respondents on 03/03/2015 without hearing the two (2) pending motions filed by the Judgment Debtor/Appellant seeking to set aside the Default judgment of the lower Court of 25/6/2014 and the Garnishee Order nisi made on 3/12/2015.
PARTICULARS
a. The Appellant (as Defendant at the Lower Court) on 11/12/2014 filed an application seeking to set aside the Default judgment entered against the Applicant on 25/6/2014. The Order nisi made by the lower Court on the 3/12/2014 was predicated on the said default judgment
b. The Appellant also filed another application on 23/12/2014 in the lower Court seeking to set aside the Garnishee Order nisi or in the alternative an Order suspending further enforcement of the default judgment of 25/6/2014 pending the hearing and determination of the motion filed to set aside the garnishee order nisi on the 11/12/2014.
c. The return date for the garnishees to show cause was 5/1/2015. On 5/1/2015 the lower Court did not sit due to judicial workers strike. The case was subsequently adjourned to 24/2/2015. On 24/2/2015, E.A Akpotaire, Esq., appeared in Court for the Appellant and informed the Court of the Appellant’s two pending motions. Advance copy of the Appellant’s motion filed on 11/12/2015 was served on the Judgment Creditor/Respondent’s Counsel.
d. In spite of above facts the learned trial Judge proceeded with the garnishee proceedings on the basis that the Appellant’s motions which were in the Court’s file on 24/2/2015 were not fixed for hearing on 24/2/2015 same having been filed since December 2014. The case was adjourned to 3/3/2015 and the Appellant’s two (2) pending motions fixed for 3/3/2015.
e. The learned trial Judge proceeded without giving the Appellant the opportunity to be heard.
GROUND 2
The learned trial Judge erred when he refused to allow learned Counsel, E. K. Omare, Esq to appear for the Appellant/Judgment Debtor on 3/3/2015 to move the Appellant/Judgment Debtor’s pending motions filed on 11/12/2014 and 23/12/2014 and thereafter proceeded to make the order nisi made on 3/12/2014 absolute against the 2nd and 9th Garnishees.
PARTICULARS
a. On 3/3/2015, E.K Omare, appeared in Court as Counsel for the Appellant. The Judgment Creditor/Respondent Counsel raised objection to the appearance of E. K Omare on the ground that the Appellant did not file application to change his Counsel.
b. The Appellant in paragraphs 6 and 5 of the affidavit in support of the Appellant’s motion filed on 11/12/2014 and 23/12/2014 respectively, the Appellant deposed to the fact that he briefed E.A Akpotaire and E. K Omare to act as co-counsel for him to lead E. C Akpeme, Esq, who had been representing him in the case.
c. The Appellant gave reason for briefing two more Counsel in both affidavits. The Judgment Creditor/Respondent did not file counter affidavit to any of the motions.
d. There is difference between application for change of counsel as envisaged by Order 48 of the High Court of Delta State (Civil Procedure Rules) 2009 and a party briefing another counsel or more counsel to represent him and to lead an existing counsel in a matter.
e. On the 24/2/2015 E.A. Akpotaire of Counsel appeared for the judgment debtor/ appellant without any objection.
f. The Judgment Debtor/Appellant did not change Counsel but only briefed more Counsel to lead the counsel on record. Being that E. C. Akpeme is based outside jurisdiction, it was necessary to provide the office address of Wings of Justice Solicitors which is within jurisdiction.
g. There is no Law or Rule of Court which requires that Counsel briefed to lead other leaders must apply to change Counsel.
h. The learned trial Judge proceeded without giving the Appellant the opportunity to be heard.

The Appellant by his Brief of Argument filed on 29th June, 2015 which was adopted at the hearing had raised two issues thus:
1. Whether it was not a violation of Appellant’s right to fair hearing, for the lower Court to have made the garnishee order absolute on 3rd March, 2015 without hearing the Appellant’s two pending motions of 10th December, 2014 and 23rd December, 2014 on the merit? (Ground 1)
2. Whether having regard to the facts and circumstances of this case, the Appellant briefing of two additional legal practitioners (Messrs. E. A. Akpolaire and E. K. Omare) to act as co-counsel to lead E. C. Akpemewho was (sic) handling the matter amounted to change of counsel? (Ground 2)

​On his part, the 1st Respondent by his Brief of Argument filed on 2nd May, 2017 but deemed on 11th October, 2017 and adopted at the hearing raised the 3 issues to wit:
1. Whether the appeal is competent, the appellant having failed to comply with the condition precedent set by Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria as Amended.
2. Whether the appeal against the garnishee order absolute is competent, there being no appeal against the Judgment of the trial Court of 25th June, 2014 that gave rise to the garnishee order absolute?
3. Whether in the circumstances of this suit the application of the rules of Court contained in Order 48 Rules 1, 2 and 3 of the Delta State High Court (Civil Procedure) Rules 2009 amounted to the Deprivation of fair hearing as postulated by the Applicant?

​The Respondent, not having filed any Notice of Preliminary Objection nor raised any such objection specifically, in his Respondent’s Brief of Argument, I see his issues 1 and 2 as of no moment, therefore. His issue 3 is, however captured by the Appellants issues 1 and 2 and both stem from the Grounds of Appeal. I adopt the Appellant’s issues for the resolution of this appeal, therefore.

ISSUE ONE (1)
Whether it was not a violation of the Appellant’s right of fair hearing for the lower Court to have made the garnishee order absolute on 3rd March, 2015 without hearing the Appellant’s two pending motions of 10th December, 2014 and 23rd December, 2014 on the merit.

It was contended that it was a breach of Appellant’s right of fair hearing not to first hear the pending motion to set aside the default Judgment of 25th June, 2014 and the Decree Nisi/stay of further proceedings. The Motions were those of 10th December, 2014 and 23rd December, 2014 respectively.

That a Court is bound to decide on all pending application before making its final decision in a matter. That this has to be, else a breach of fair hearing would have been occasioned; that anything to the contrary was to embark on a kangaroo Court system: AFRO-CONTINENTAL LTD. & ANOR V. COOPERATIVE ASSOCIATION OF PROFESSIONALS INC. (2003) FWLR (PT. 149) 1610-1618 PAR. D-E, 1621 PAR F-G referred. That the two motions by the Appellant duly filed on the dates indicated came up for hearing on 3rd March, 2015 when the Decree Nisi was made absolute and even when E. A. Akpotaire, one of the co-counsel briefed by the Appellant to lead E. C. Akpeme appeared in the matter on 24th February, 2015 and has drawn attention to the pending applications; see 316 and 317 of the Records.

Learned counsel for the Appellant submitted that no matter the perceived weakness or strength of a pending application, it must be heard and determined one way or the other. MOBIL PRODUCING (NIG.) LTD. VS. MONOKPO (2004) ALL FWLR (PT. 195) 575, 628 SC, per Uwaifo; ERIOBUNA V. OBIORAH Tobi, J.C.A., (1999) 8 NWLR (PT. 616) 22; Section 36(1) of the Constitution 1999 also relied on.

That if it is left to the Judge to decide whether or not to hear and determine a pending motion, there may be danger as tyranny and arbitrariness would begin. That the refusal to hear the Motions on the day fixed and an order of Decree absolute was entered was clearly an invocation of the spirit of Arbitrariness and injustice.

The learned counsel queried “how can a Judge deprive a legal practitioner duly called to the Nigerian Bar and briefed by the Appellant from appearing for the Appellant and then immediately proceed to make a punitive garnishee order absolute directing the garnishees in this appeal to pay to the judgment creditor in a default judgment sums of money amounting to N6, 954, 476.73 (six million, nine hundred and fifty four thousand, four hundred and seventy six naira, seventy three kobo) without hearing the Appellant?

Learned counsel, citing OTAPO V. SUNMONU (1987) Supreme Court, per Obaseki, J.S.C. submitted that the Appellant was not given the opportunity of being heard. It was contended that the breach of fair hearing in not hearing the pending two motions of the Appellant, before the making of the garnishee order absolute violated Section 36(1) of the 1999 Constitution and made the Decree Absolute and all steps taken there under a nullity. HYUN SUNG HYDRAULIC MACHINER CO. LTD V. SAHYRA NIG. LTD (2008) ALL FWLR (PT. 397) 133, 147-148; COOKEY VS. FOMBO (2005) ALL FWLR (PT. 271) 25, 37; OKONKWO VS CBN (2012) ALL FWLR (PT. 605) 293, 293; NDUKANBA VS KOLOMO (2005) ALL FWLR (PT. 248) 1602, 1614 also relied on and to submit that the denial of fair hearing had made the Decree absolute of no consequence whatsoever.

That this issue be resolved in favour of the Appellant. 

In respect of the 2nd issue, whether having regard to the facts and circumstances of this case, the Appellant briefing of two additional legal practitioners (Messrs E. A. Akpotaire and E. K. Omara) to act as co-counsel to lead E. C. Akpeme who was handling the matter amounted to change of counsel? (Ground 2)

It was submitted that the briefing of additional counsel did not amount to change of counsel; that it was wrong to hold that Order 48 of the High Court of Delta State (Civil Procedure) Rules must be compiled with before messrs E. K. Omare, Esq. and E. A. Akpotaire can appear in the matter. That the Order 48 of the Rules do not apply to what transpired in Court. After an exhaustive examination of the said Order 48 of the High Court of Delta State (Civil Procedure) Rules, 2009, Appellant’s learned counsel relies on the cases of NIGERIAN RAILWAY UNION VS. NIGERIAN RAILWAY CORPORATION (1996) NWLR (PT. 473) 490; BALONWU V. BALONWU (2003) FWLR (PT. 140) 1673 to contend that the appearance of a different counsel or an additional counsel for a party does not amount to a change of counsel and that in any case, a party is entitled to be represented by a counsel of his own choice.

On this account, it is urged that this issue be resolved in favour of the Appellant and the appeal be allowed and case remitted for the hearing of the pending motions before another Judge.

RESPONDENT SUBMISSIONS
The respondent commenced his argument by a composite argument on his fused issues 1 and 2 which I had earlier on stated to be issues raising the contention of the purported incompetence of the appeal on grounds of non-compliance with S. 243(a) of the 1999 Constitution.

I had said, that no Notice of the Preliminary Objection had been filed nor was it raised in the Respondents Brief before the raising of the issues thereon; and therefore the issues are incompetent and do not even arise. The seemingly good legal expositions in the issues 1 and 2 of the Respondents are otiose and inapplicable.

That takes me to the Argument on issue 3: Whether in the circumstances of this suit, the application of the Rules of Court as contained in Order 48 Rules 1, 2 and 3 of the Delta State (Civil Procedure) Rules 2009 amounted to the deprivation of fair hearing as postulated by the Appellant?

​The learned counsel submits that assuming the appeal was competent, which he did not concede, (though I have so found that there was no valid preliminary objection raised), that the Judge was right in upholding the submission of Respondents counsel and in striking out the Appellant’s motion.

The learned counsel submitted that there was no proper change of counsel and E. K. Omare Esq. who appeared had indicated a different office address from that shown in the Address of Appellant as Alex Egboro & Co. That E. Ekpotaire, Esq. who appeared for Appellant earlier indicated no address to show that he was not from Alex Egboro & Co. That E. K. Omare, Esq. having indicated that he was from a different office therefore, Order 48 Rule 2 of the High Court Civil Procedure Rules, 2009 Delta State ought be compiled with. That the Rules of Court must be compiled with; cites ABIA STATE TRANSPORT CORPORATION & 2 ORS. VS. QUORUM CONSORTIUM LTD. where the defendant did not pay the required filing fees and Notice of Intention was held to be invalid.

​That Appellant was not denied fair hearing as the applications were taken cognizance of and arguments on the competence of the applications as they relate to the Rules of Court were taken and a decision then made striking out both applications.

The learned counsel sought to contend that the facts and circumstances in the NIGERIA RAILWAY UNION AND BALONWU cases are distinct and different from the instant case.

That it was after the objection and arguments on Order 48 had been taken that the Appellant flip flopped by saying he was only leading E. C. Akpeme Esq of Alex Egbero & Co.
Counsel submitted that a scrutiny of the record of Appeal which should be done referring to OLAFEMI V. AYO (2009) FWLR PR. 451 PAGE 111 AT 1129 before a conclusion could be arrived that there was a breach of fair hearing, shows no breach of the right of fair hearing in the instant case. That even then, Appellant had waived his right to fair hearing. Relies on INEC V. ADC. (2009) ALL FWLR PT. 474 AT 1583 AT 1587.

That the default judgment entered under Order 25 Rule 6 of the High Court (Civil Procedure) Rules of Delta State could under Rule 6 thereof be set aside upon application within 7 days of the judgment or such other period as the pre-trial may allow not exceeding the per-trial conference period; and on the application which shall be accompanied by an affidavit of readiness of participation effectively in pre-trial conference. That the pre-trial conference period is 3 months; from its commencement (Order 25(4)).

That the Appellant had waited till a garnishee order had been obtained 6 months thereafter that he came to Court; and that the right of fair hearing does not mean that a person must be heard by all means but rather that a person be given the opportunity of being heard.
BENGO V. GOVERNOR OF ADAMAWA STATE (2012) ALL FWLR PT. 633 PAGE 1908 AT 1913.

In Bengo’s case supra the Court had held:
“The principle of fair hearing, as enshrined in the Constitution does not connote that a person must be heard by all means in the determination of his civil rights, rather it connotes that he be given the opportunity of being heard.
It is upon him how he uses this opportunity. In the instant case the Plaintiff was given adequate opportunity to defend himself against the allegation alleged, therefore, the trial Court rightly dismissed his claims challenging his deposition on the grounds of lack of fair hearing.” The learned counsel enthused that the attitude of the Appellant from the commencement of the trial was to frustrate the course of justice and never intended the suit to go to trial and was bent on frustrating the outcome of justice and to deprive the Respondent of the fruit thereof.

That the Appellant had waived the benefit of the right of fair hearing given by the Court and cannot turn round to contend that the right had been denied him. That this issue be resolved against the Appellant and the appeal be dismissed on the grounds that the appeal was: (1) Incompetent and (2) That the Appellant had failed to show that he was deprived the right of fair hearing at the trial.
The appeal herein is within, a narrow compass though sought to be enlarged by the Respondent’s arguments.

The indisputable fact in this appeal is that the Appellant herein was a party in the suit instituted against him by the 1st Respondent and so remained a party up till the processes of Appeal to the apex Court, if need be is exhausted and up to execution.
Herein, the Appellant had filed two motions for the setting aside of a default judgment entered against him and a subsequent Garnishee Decree Absolute to give effect to the default judgment. The denial of the right of legal representation as sought on the 3rd March, 2015 under the guise of inappropriate change of counsel notice pursuant to Order 48 Rules 1 and 2 of the High Court of Delta State Civil Procedure Rules was wrong.
The said Rule does not contemplate the prevention or denial of the right of Legal representation by a counsel of one’s choice as unwittingly or deliberately caused the Appellant herein. The said Order 48 simply binds every legal practitioner engaged by a person, whether as claimant or defendant as the case may be to be so bound to conduct the case for which he was engaged until final judgment, unless allowed for any special reason to cease acting therein. The Rule 1 of the Order 48, therefore, is for the protection of the parties and the trial Court would in the circumstance of not being satisfied of any absence of counsel, be expected to adjourn or stand down the case or matter to ensure that the client be notified. This will be in protection of the client’s right under that order of Court not to be denied his right of representation at any stage, having engaged a particular counsel.
In this matter, the Court interpreted the presence of a counsel with a different Address from the counsel earlier on record as appearing for the Appellant as a change of counsel and which according to the Court was not properly done. My Lords, the scenario at the trial Court was far from the position provided for in Order 48 Rule 2 of the High Court Civil Procedure Rules, Delta State, which provided for change of counsel.
There was no application for change of counsel as wrongly thought by the trial Court.
It was, an application to have additional counsel appear with the counsel on record and his own Address of service given.
​The fact that a different Address of service is given does not ipso facto mean that there is a change of counsel, as where there is a change of counsel the application shall be served on the outgoing legal practitioner. There is nowhere in the record where the purported new counsel served the purported Notice of Change of counsel on the alleged previous counsel. There was clearly here, no change of counsel at all; E. K. Akpeme had not withdrawn from representation of the Appellant nor had the Appellant applied to dispense with him. There was no reason not to have adjourned for him to be served on the wrong option of disallowing E. K. Omare Esq. who was in Court to urge the Appellants Motions fixed for hearing on that date.
E. K. Omare and E. A. Akpotaire, Esq. could not constitutionally have been denied legal appearance for the Appellant as that did not only infringe their rights but impugned the Appellant’s constitutional right to fair hearing under the Section 36 of the 1999 Constitution. The motion of 10th December, 2014 gave an undertaking to participate effectively in pre-trial conference and other proceedings in the suit and prayed to have the additional two named counsel to act as co-counsel of E. C. Akpeme, Esq. whether they were to lead Ekpeme, Esq. or not, any of the 3 learned counsel, was as of right entitled to represent the Appellant, who was not to be visited with a deprivation of his right merely because one or some of them were not in Court, to be led.

​The Appellant by the motion of 10th December, 2014 had sought for the following reliefs amongst others:
1. An order extending the period of pre-trial conference in this suit.
2. An order extending the time within which the Defendant/Applicant may apply to set aside the judgment entered by this honourable Court against the Defendant/Applicant on 25th June, 2014.
If the said motion had been taken, then the view that the Appellant delayed protractingly and slept over his right could not have arisen. The motion relating to the default Judgment was prejudicially jettisoned, in order to arrive at the desired conclusion of raising neglect or indolence against the Appellant in respect of same.
The Address of service within jurisdiction for the purpose of serving a party does not translate into a change of counsel, merely because an Address different from an earlier Address given for service or of a counsel, is depicted. The trial Court clearly was in error in two fundamental fronts.

The first is that of the refusal or neglect to hear the pending motions of the Appellant and which were struck out.
In MOBIL PRODUCING NIGERIA UNLTD VS. MONOKPO (2004) ALL FWLR (PT. 195) 628 the Supreme Court stated thus:

“A Court of law or Tribunal has a legal duty in our adjectival law to hear any Court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A Judge whether of a Court of law or Tribunal, has no jurisdiction to come to the conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication. The failure on the part of the learned tribunal to hear the motion of the 1st Appellant filed on 1st May, 1999 is against the provisions of Section 33(1) of the 1979 Constitution on fair hearing, and particularly, the natural justice rule of audi ateram partem. The Applicant/Appellant was not a contemnor, who in any case is expected to be heard after purging himself of the contempt.”
Hear Uwaifo, J.S.C. speak in the MOBIL PRODUCING NIG, UNLTD. V. MONOKPO case supra:
“It is not only essential but mandatory for a Court before which a motion (or application) has been brought to hear and determine it at the appropriate time. It has no right to refuse to hear it unless possibly in a proper circumstance in the exercise of its punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard. Otherwise the Court must set the motion down…..”
The issue one is resolved in favour of the Appellant.

Though the issue one as resolved has determined the appeal, I still need to conclude, even if briefly, that the appearance of E. K. Omare Esq. of counsel for the Appellant in no way amounted to change of counsel and therefore, the inapplicable provisions of Order 48 Rules 1-3 of the Delta State High Court Civil Procedure Rules did not arise at all. In NIGERIAN RAILWAY UNION V. NIGERIA RAILWAY CORPORATION (supra), the Court of Appeal upturning the High Courts’ Ruling in the same manner as delivered in this matter on appeal, held thus:
“There is no law and I have not been told of any nor did my research reveal one, demanding any requirement that an additional counsel engaged in a matter ought to formally write to the Court before he is allowed to conduct or be engaged in any matter. It is not the contention of Mr. Kehinde Sofola (SAN) that Chief G. O. K. Ajayi (SAN) had no instruction to appear for the Appellant and conduct the case on their behalf. It is trite law that once a legal practitioner announces his appearance for a party, it is not the duty of the Court to inquire into the validity of the representation. By Section 33(1) of the Constitution for the determination of civil rights and obligations, a citizen has the fundamental right to either represent in Court or be represented by a counsel of his own choice. The right to represent one’s case at a hearing before Court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage. The Court cannot validly exercise any discretion to curtail the fundamental right of a litigant to a trial within the meaning of S. 33 of the Constitution. It is also trite that any law restricting the method or mode in which to exercise a fundamental right guaranteed by the Constitution will be inconsistent with the Constitution… Where a party exercised his undoubted and fundamental right to engage a counsel to represent him in a trial, the Court has no business into inquiring whether the counsel was regularly or improperly briefed. The Court must allow the counsel to represent the party without any restriction or any procedural requirement… There is no rule of law or practice that limits the number of counsel to be engaged by a party to any adjudication”.

In the circumstance and on the case law authorities aptly applicable as cited by the Appellant, I also resolve this issue in favour of the Appellant.
This appeal has merit and is allowed.

Accordingly,
1. The decision of the lower Court made on March, 2015 granting garnishee order absolute against the 2nd and 9th Respondents is set aside.
2. The two motions of 10th December, 2015 and 23rd December 2014 of the Appellants hither-to struck out shall be, and are hereby ordered to be relisted on the cause list of the trial Court accordingly.
3. The Default Judgment entered on 25th June, 2014 is set aside and the hearing of the Suit No. ECH/93/2013 shall be proceeded with by a different Judge other than Harriman, J. to be assigned by the Honourable Chief Judge of Delta State.

JOSEPH EYO  EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother DANJUMA, J.C.A. I agree with the reasoning and conclusion therein that the appeal has merit. I adopt the same in allowing the appeal and I abide by the consequential order made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, J.C.A. in this appeal and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
​I also abide by all consequential order(s) in the lead judgment.

Appearances:

E. K. Omare, Esq. For Appellant(s)

E. S. Orhiunu, Esq.
The Garnishee/Respondent’s filed no Brief and were not represented by counsel. For Respondent(s)