ETUBOM EKPO EFFIOM & 3 ORS. VS CHIEF EFFIOM EYO OKON
May 28, 2025HON. (DR) YUSUF DATTI BABA – AHMED -VS- JIBRIL ADAMU
May 28, 2025Legalpedia Citation: (2008) Legalpedia (CA) 14777
In the Court of Appeal
Tue Nov 11, 2008
Suit Number: CA/C/233/2007
CORAM
PARTIES
AKWA IBOM STATE COLLEGE OF EDUCATION, AFAHA NSIT APPELLANTS
MRS. EKAETTE UMANAH EKONG RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent was given a temporary employment by the Akwa Ibom State College of Education, as a Lecturer and posted to the General Studies Department. The appointment was terminated by the Defendant/Appellant through a letter. Subsequently, the Plaintiff/Respondent instituted proceedings against the Defendant/Appellant before the High Court of Akwa Ibom State sitting at Uyo under the undefended list procedure. The Defendant/Appellant at the court below contended that the suit was commenced at the wrong venue. It then filed an application before the Chief Judge of the State for the matter to be transferred to the appropriate venue for hearing and determination. It also filed a Notice of Intention to defend supported with an affidavit and exhibited the application before the Chief Judge for transfer of the matter to the appropriate Judicial Division. The trial court ignored the Notice of Intention to defend, the affidavit and the exhibits thereto and entered judgment in favour of the Plaintiff/Respondent. Aggrieved by the decision of the trial Judge, the Defendant/Appellant has appealed to this court.?
HELD
Appeal allowed?
ISSUES
Whether the trial court adopted the correct procedure in entering judgment for the plaintiff/respondent?Whether the respondent’s claim was correctly dealt with as a claim under the undefended list?
RATIONES DECIDENDI
ARGUMENT ON APPEAL-WHETHER BASED ON ISSUES OR GROUNDS
“At the Court of Appeal what is argued are the issues distilled for determination and not grounds of appeal.” PER JEAN OMOKRI JCA
GROUND OF APPEAL- WHEN DEEMED ABANDONED
“A ground of appeal on which no argument is advanced either in the brief of argument or in oral argument is deemed to have been abandoned.” PER JEAN OMOKRI JCA
UNDEFENDED LIST PROCEDURE- CLAIM PERMISSIBLE THEREOF
“A claim permissible under the undefended list must be for a debt or a liquidated money demand.” PER JEAN OMOKRI JCA
UNDEFENDED LIST PROCEDURE- CONDITION PRECEDENT TO
“The trial Judge must satisfy himself that there are no good grounds for believing that there is no defence to the claim before entering suit for hearing under the undefended list procedure. This is a condition, precedent and it is mandatory following the use of the word “shall”.” PER JEAN OMOKRI JCA
SUMMARY TRIAL – SCOPE OF
“Where the facts of the matter are contentious the action is not appropriate for summary trial and should not be placed on the undefended list.” PER JEAN OMOKRI JCA
FAIR HEARING- SCOPE OF
“Generally, the twin pillars of fair hearing are embodied in the latin maxims nemo judex in causa sua, that is, “you shall not be a Judge in your own cause” and audi alteram partem, that is, “hear the other side”.” PER JEAN OMOKRI JCA
FAIR HEARING -FUNDAMENTAL NATURE OF-EFFECT OF A BREACH THEREOF
“A denial of fair hearing is enough ground for the Court of Appeal to set aside the judgment of the trial court. The principles of fair hearing entrenched in the constitution is so fundamental in the judicial process or the administration of justice that a breach of it will vitiate or nullify the whole proceedings.” PER JEAN OMOKRI JCA
UNDEFENDED LIST PROCEDURE-CONSIDERATION OF COURTS
“Though the rules providing for the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of, the need for fair hearing should not be sacrificed on the altar of expediency”. PER JEAN OMOKRI JCA
AUDI ALTERAM PARTEM- RULE OF
” This rule connotes that a court or tribunal in the hearing and determination of a suit or dispute between parties must:
1. hear both sides; not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
2. give equal treatment, equal opportunity and equal consideration to all concerned.
3. have regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.” PER JEAN OMOKRI JCA
AFFIDAVIT-ANNEXURE TO AFFIDAVITS-HOW TREATED
“It is well settled law that an annexture to an affidavit is automatically part of the affidavit. That is because an annexture automatically becomes an exhibit.” PER JEAN OMOKRI JCA
DAMAGES-DISTINCTION BETWEEN LIQUIDATED AND UNLIQUIDATED DAMAGES
“Whenever the amount which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidated. However, where the court has to quantify or assess the damage whether pecuniary or non-pecuniary, the damages are unliquidated.” PER JEAN OMOKRI JCA
APPEAL – COMPETENCE OF-HOW DETERMINED
“An appeal to the Court of Appeal is only competent where such issues raised therein are a challenge to the finding of the trial court.” PER JEAN OMOKRI JCA
DOCTRINE OF FAIR HEARING- PURPORT OF
“The doctrine of fair hearing envisages that both parties to a case are given ample opportunity of presenting their respective cases without let or hindrance right from the commencement of such case to its logical conclusion. It also envisages that the court hearing a case should be fair and impartial, without showing any bias for or against any of the parties.” PER JEAN OMOKRI JCA
UNDEFENDED LIST PROCEDURE- DUTY OF THE COURT THERETO
“The court is also enjoined to apply a measure of liberality when viewing the affidavit of the appellant in order to determine whether or not a defence on the merit is disclosed under the undefended list procedure.” PER JEAN OMOKRI JCA
UNDEFENDED LIST PROCEDURE- DUTY OF COURT THERETO
“In a claim under the undefended list, it is the primary duty of the trial court to determine whether the action is a proper one to be placed on the undefended list. This is an exercise which is essentially a judicial decision.” PER JEAN OMOKRI JCA
UNDEFENDED LIST PROCEDURE- NATURE OF
“The undefended list procedure is a truncated form of ordinary civil hearing designed to ensure quick dispensation of justice but not at the expense of fair hearing. The rules are meant for quick disposal of cases which by their very nature are virtually uncontested”. PER JEAN OMOKRI JCA
FAIR HEARING- ESSENCE OF
“The very essence of fair hearing under section 36 of the 1999 Constitution of the Federal Republic of Nigeria is a hearing which is fair to all parties to the suit; whether the plaintiff, the defendant, the prosecution or the defence.” PER JEAN OMOKRI JCA
RECORD OF APPEAL- BINDINGNESS OF ON COURT AND PARTIES
“The court and parties are bound by the record of appeal.” PER JEAN OMOKRI JCA
FAIR HEARING AND FAIR TRIAL- BASIS OF TEST FOR OBSERVANCE OF
“Fair hearing and fair trial are said to be synonymous and the test for its observance is not based on technicality but on the substance of the proceedings and the objective view or opinion of a fair minded person who was present throughout the proceedings whether, in his opinion, justice has been done to the parties in the case.” PER JEAN OMOKRI JCA
FAIR HEARING- DUTY OF COURT TO OBSERVE COMPLIANCE THERTO-EFFECT OF A BREACH THEREOF
“Courts are enjoined to observe compliance in regard to fair hearing in all cases such that a breach of it renders proceedings on the case null and void in any event, particularly in matters relating to the principle of audi alteram partem”. PER JEAN OMOKRI JCA
CASES CITED
Ajibade vs. Pedro (1992) 5 NWLR (Pt. 241)257;Alabi vs. Lawal (2004) 2 NWLR (Pt. 856) 134 at 147 Aribisala vs. Ogunyemi (2005) 6 NWLR (Pt. 921) 212Ariori vs. Elemo (1983) 1 SCNLR 1Attorney General Enugu State vs. Avop Plc (1995) 6 NWLR (Pt. 399) 90 at 92Baba vs. Habib (Nig.) Bank Ltd. (2001) 7 NWLR (Pt. 712) 496 at 506; Brifina Ltd. vs. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540 at 541 – 547.Dahiru vs. Kamale (2005) 9 NWLR (Pt.929) 8 at 56;Dantata and Sawoe Construction vs. Hassan (2001) 5 NWLR (Pt. 705) 129 at pages 136 – 139Eastern Plastic Ltd. vs. Svnco West Africa Ltd. (1999) 1 NWLR (Pt. 587) 456Ekwomchi vs. Ukwu (2002) 1 NWLR (Pt. 749) 590Eneji v. lnternational Transactions Ltd. (2000) 11 NWLR (Pt. 678) 225 at 226Enye vs. Ogbu (2003) 10 NWLR (Pt. 828) 403 at 414Essang vs. Aureal Plastics Ltd (2002) 17 NWLR (Pt. 795) 155 at 162 and 163Ezechukwu vs. Onwuka (2006) 2 NWLR (Pt. 963) 151 at 155Fagbule vs. Rodrigues (2002) 7 NWLR (Pt. 765) 188Husseini vs. Mohammed (2005) 17 NWLR (Pt. 954) 393 at 420Ikweki vs. Ebele (2005) 11 NWLR (Pt. 936) 397Josadeg (Nig.) Ltd. vs. NDIC (2005) 9 NWLR(Pt. 929)167 at 184Jos North Local Govt. vs. Dariyan (2000) 10 NWLR (Pt. 625) 281 at 283Kabiru vs. Ibrahim (2004) 2 NWLR (Pt. 857) 326 at 330; at page 345 – 346Kisari Investment Ltd.vs. L. A. Terminal Co. Ltd. (2001) FWLR (Pt. 66) 766 at 772KSTA vs. Ofodile (1999) 10 NWLR (Pt. 622) 259Maja vs. Samouns (2002) 7 NWLR (Pt.765) 75 at 102Maley vs. Isah (2000) 5 NWLR (Pt. 658) 651 Ndu vs. State (1990) 7 NWLR (Pt. 164) 550 at 189 paras. C – D.NEPA vs. Arobieke (2006) 7 NWLR (Pt. 979) 245 at 276 Nwakama vs. Ikom Local Government Area of Cross River State (1996) 3 NWLR (Pt. 493) 732Nwankwo vs. Ameto (2002) 2 NWLR (Pt.752) 729Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 at 922Obasi Bros. (Nig.) Ltd. vs. Will Bros. (Nig.) Ltd. (1991) 3 NWLR (Pt. 181) 606Oforkwe vs. Maduike (2003) 5 NWLR (Pt. 12) 166Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt. 730) 403 Ojengbede vs. Esan (2001) 18 NWLR (Pt. 746) 71Okafor vs. Anambra State (1991) 3 NWLR (Pt. 200) 59Olubusola Stores vs. Standard Bank of Nig. Ltd. (1975) 4 SC 51Ossai vs. Wakwah (2006) 4 NWLR (Pt. 967) 208 at 212Saleh vs. Monguno (2003) 1 NWLR (Pt. 801) 221So-Mai Sonka Co. (Nig.) Ltd. vs. Adzege (2001) 9 NWLR (Pt. 718) 312 at 322Texaco Panama Inc. vs. SPDC (Nig.) Ltd. (2002) 5 NWLR (Pt. 759) 209 SC; UPS Ltd. vs. Ufot (2006) 2 NWLR (Pt. 963) 1 at 27Vanguard Media Ltd. vs. Ajoku (2003) 11 NWLR (Pt. 831)V. S. Steel (Nig.) Ltd. vs. Govt. Anambra State (2001) 8 NWLR (Pt.715) 454 at 465 – 466,
STATUTES REFERRED TO
Court of Appeal Rules 2007High Court (Civil Procedure) Rules of Akwa Ibom State, 1989The 1999 Constitution of the Federal Republic of Nigeria?
