CHIEF L.L.B. OGOLO VS JOSEPH T. OGOLO

CORAM

BELGORE JUSTICE, SUPREME COURT

KATSINA JUSTICE, SUPREME COURT

KALGO JUSTICE, SUPREME COURT

EJIWUNMI JUSTICE, SUPREME COURT

ONNOGHEN JUSTICE, SUPREME COURT

PARTIES

CHIEF L.L.B. OGOLO

APPELLANTS

JOSEPH T. OGOLO

RESPONDENTS

AREA(S) OF LAW

CHIEFTAINCY ISSUES-STRIKING OUT OF PRELIMINARY OBJECTION WITHOUT HEARING SAME-EFFECT OF FAILURE OF COURT TO CONSIDER STATEMENT OF DEFENCE.

SUMMARY OF FACTS

The appellant sought an order of court staying the order of the trial court in refusing to set aside its (i.e. trial court) default judgement.

HELD

The Court held that it was a wrong exercise of the trial courts discretion to shut its eyes to the statement of defence before it in determining whether or not to set aside its default judgement and that the refusal to set aside the judgement was a final order for which no leave is required to appeal.

ISSUES

1. Whether the lower court adopted the correct approach in determining the appeal challenging the exercise of judicial discretion by the trial court and, if not, whether the approach occasioned miscarriage of justice to warrant interference by the Supreme Court in the circumstances.

2. Whether the lower court occasioned miscarriage of Justice by ignoring the preliminary objection as to the competency of the substantive appeal in considering the merit vel non of the appeal.

RATIONES DECIDENDI

FINAL JUDGMENT

It is settled law that a judgment given at the end of a normal trial, after hearing evidence of both parties and submissions of counsel on the relevant issues of facts and law, is on the merit of the action and also a final judgment which the court concerned is incapable of setting aside except for fundamental defects that go to the jurisdiction of the court. Where the judgment is final and the court that enters it has no jurisdiction to set same aside having thereby become funtus Officio, the only way to challenge it or remedy any defect therein is by appeal to a superior court. Per. W. S. N. ONNOGHEN, JSC

TEST FOR DETERMINING WHETHER A JUDGMENT OR ORDER IS FINAL OR INTERLOCUTORY

The correct test in determining whether a decision is final or interlocutory is to look at the nature of the order made rather than the nature of the proceeding resulting in the order. When viewed in that way it becomes obvious that a decision reached in an interlocutory application may be final if it disposes finally of the rights of the parties, having no further reference to that court on the matter in which it has delivered its decision. Per W. S. N. ONNOGHEN, JSC