CORAM

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PARTIES

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COMRADE MIKE ALIOKE APPELLANTS

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1. DR. VICTOR IKE OYE

2. ALL PROGRESSIVES GRAND ALLIANCE

3. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)

4. INSPECTOR GENERAL OF POLICE

5. COMMISSIONER OF POLICE ENUGU STATE.

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

PPEAL, CONSTITUTIONAL LAW, COURT, FAIR HEARING, JURISDICTION, LAW OF CONTRACT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondent commenced a suit by writ of summons at the Lagos State High Court against the Appellant claiming the sum of N95, 399, 765.28 (Ninety Five Million, Three Hundred and Ninety Nine Thousand, Seven Hundred and Sixty five naira, Twenty Eight Kobo) and the sum of $875,949.22(Eight Hundred and Seventy Five Thousand, Nine Hundred and Forty Nine Dollars Twenty two cents) being the unpaid balance of money for the supply of scaffolding materials and services to the defendant for the Chevron EGP-3B project, offshore Warri Delta State, the sum of N43,522,300.00 (Forty Three Million, Five Hundred and Twenty Two Thousand, Three Hundred Naira) being the total cost of the unrecovered scaffolding materials and equipment in possession of the Defendant at Chevron -EGP-3B project, offshore Warri Delta State which have been rendered unfit and unusable due to salty water and high humidity at the project site and an order for the release of 2 offshore material baskets belonging to the claimant still in NIWA Yard Warehouse of the Defendant in Warri. The claim was denied and pre-trial session commenced as required by the rules of the High Court. The parties attempted amicable settlement but it failed. On the 15/12/2015 when the Case Management Conference was to commence, the Appellant asked for adjournment and the conference was adjourned. On the said date, the Appellant and counsel were not in court and the Respondent’s counsel asked for judgment under Order 25 Rule 6(2) (b) of the Lagos State High Court (Civil Procedure) Rules 2015. Judgment was entered as per the claim by the court. The Appellant being dissatisfied filed an appeal at the Court of Appeal challenging the said judgment.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether the lower court was right when it relied on Order 25 Rule 1(1) and (3) of the Rules of Court to hold that the late filing of Forms 17 and 18 by the Claimant without an application to regularize same is a mere irregularity and therefore refused the defendants application to dismiss the suit?

2. Whether the lower court was right when it entered default judgment against the defendant for failure of appearance when no hearing Notice was served on the Defendants as required by law?

3. Whether the lower court was right when it continued with case management Conference in respect of the case after the expiration of three months from its commencement contrary to Order 25 Rule 3 of the Lagos State High Court (civil Procedure) Rules 2012?

 

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RATIONES DECIDENDI

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GROUND OF APPEAL-RATIONALE FOR A GROUND OF APPEAL

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“Generally, a ground of appeal is a statement by a party aggrieved with the decision of a Court, complaining that the court from which the appeal is brought made a mistake in the finding of facts or application of law to certain sets of facts. In other words, a ground of appeal is the complaint of the Appellant against the judgment of the Court. Such a complaint must be based on the live issues or issues in controversy in the suit, See Iwuoha V Nipost Ltd (2003) 8 NWLR (Pt 822) 308 @ 332. A ground of appeal is no doubt a pillar upon which the appeal rests. Once it is succinctly couched and the parties understand and appreciate the meaning of the contents thereof, such a ground of appeal will not be incompetent merely because it is technically defective. See Akanbi v Salawa (supra), which is also reported in (2003) 13 NWLR (Pt 838) 637, Nwadike V Ibekwe (1987) 4 NWLR (PT 67) 718 @ 744, MDPDT V Okonkwo (2006) 7 NWLR (Pt 711) 206.”

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GROUND OF APPEAL -WHETHER A GROUND OF APPEAL BEING ARGUMENTATIVE OR REPETITIVE IS SUFFICIENT TO DENY A PARTY HIS RIGHT TO VENTILATE HIS GRIEVANCE WITH THE JUDGMENT

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“The law is trite that while a ground of appeal is to set out briefly the aspect of the error of the court below, the fact that a ground of appeal is argumentative or repetitive is not sufficient to deny a party his right to ventilate his grievance with the judgment on the face of it.”

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GROUND OF APPEAL – FUNCTION OF PARTICULARS OF ERROR

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“The functions of particulars are to support and explain further the complaint in the concise and compact ground of appeal. The requirement is for particulars to contain sufficient disclosure of the complaint against the judgment. It is the ideal situation that particulars are set out separately and distinctly. However, the important thing is that the Appellant should succinctly present a complaint in such a way as to be understood and to prevent surprise.”

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GROUND OF APPEAL -PURPOSE OF PARTICULARS OF ERROR

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“It is trite that particulars can be incorporated in the ground of appeal. They are ancillary to the grounds of appeal and are not to be considered as having an independent life of its own, See Globe Fishing Ind Ltd V Coker (1990) 7 NWLR (PT 162) 265 @ 300. Particulars ensure the ground is properly set out by the clear sufficiency in areas of complaint. It can be confidently said too that when particulars are embedded in a ground of appeal, the ground can stand alone and the absence of particulars would not render the ground of appeal defective, see Ainabebholo V. Edo State Uni W.F.M.C.S. Ltd (2007) 2 NWLR (PT 1017) 33.”

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ISSUE OF JURISDICTION- WHEN CAN THE ISSUE OF JURISDICTION BE RAISED?

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“Jurisdiction is one issue that can be raised at any level of hearing, even on appeal at the Supreme Court and for the first time. In fact, when obvious on the face of the record, it can be raised by either party or by the court. It could also be raised orally.”

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COURT-DUTY OF COURTS WHERE IT FAILS TO SIT ON AN ADJOURNED DATE

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“It is trite that when a court fails to sit on a particular adjourned date for whatever reason, parties should be notified of the next hearing date, see A.G Rivers State V Ude (2006) 17 NWLR (Pt. 1008) 436.”

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SERVICE OF HEARING NOTICE – CONSEQUENCE OF FAILURE OF SERVICE OF HEARING NOTICE

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“The service of a hearing notice is fundamental to any proceedings, failure to notify a party of a date of hearing nullifies any step taken by the court below, see Achuzia V. Ogbomah (2016) LPELR-40050(SC).”

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SERVICE OF HEARING NOTICE -WHETHER THE ISSUANCE OF HEARING NOTICE IS A MANDATORY REQUIREMENT OF THE LAW

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“Issuance of a hardcopy hearing notice is not a requirement of law and failure to issue and serve same cannot offend the rule of fair hearing, see Mirchandani V Pinheiro (2001) 3 NWLR (Pt. 701) 557 @ 572 wherein the court held:
“It is not in all cases that the absence of it will automatically vitiate trials in the context of section 36 of the 1999 Constitution. A hearing Notice is not therefore a mandatory judicial process that must be issued and served in all cases”.
The requirement is a rule of the court not a statutory requirement. Rules of court are to aid the court in adjudication of cases. It is not to arm-twist the court into becoming a robot.”

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COURT-WHETHER COURTS CAN RELY ON INFORMATION HANDED DOWN BY REGISTRARS AND CLERK OF COURT

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“A court is not barred from relying on the information given to court by Registrars and clerk of court particularly when it is verifiable; it aids the smooth running of the courts.”

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PRINCIPLE OF FAIR HEARING -A PARTY WHO HAVE SLEPT ON HIS RIGHT TO FAIR HEARING CANNOT COMPLAIN OF A BREACH OF SAME

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“It has been reiterated that it is not every perceived wrong that affects the fair hearing rule. See FBN V TSA Ind Ltd (2007) ALL FWLR (PT 352) 1719 per GARBA, JCA. Furthermore, a party who is on notice that his matter is coming up and absents himself from court cannot be heard to complain or should beach of fair hearing, see INEC V Musa (2003) 3 NWLR (pt. 806) 72, Oshafunmi & Anor V Adepoju & Anor (2014) LPELR – 23073 (CA).”

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CASE MANAGEMENT CONFERENCE-PROCEDURE FOR CASE MANAGEMENT CONFERENCE

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“The Lagos State High Court (Civil Procedure) Rules has built in procedures for pretrial protocols to aid in the dispensation of speedy trials. Order 24 Rule 3 provides:
“The Case Management Conference or series of case Management Conference with respect to any case shall be completed within three (3) Months of its commencement unless extended by the Judge upon an application by either party, and the parties and their Legal Practitioners shall co¬operate with the judge in working within this time-table. As far as practicable Case Management Conference shall be held from day to day or adjourned only purposes of compliance with case management Conference orders.”
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COURT-RIGHT OF THE COURT TO ENTER JUDGMENT DURING PRE-TRIAL SESSION

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“The court below is empowered by the Rules of court to enter judgment during pretrial sessions, see Order 10 Rule 3 of the Lagos State High Court (Civil Procedure) Rules, 2012 which allows a Claimant in the absence of a defendant to ask for judgment during pretrial conference session in a liquidated money claim and the conditions under which such a judgment can be set aside are set out in Order 20 Rule 12 which provides:
“Any judgment by default whether under this order or under any other order of these Rules shall be final and remain valid and may only be set aside upon application to the judge on grounds of fraud, non- service or lack of jurisdiction upon such terms as the court may deem fit”
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FAIR HEARING – PRINCIPLE GUIDING THE APPLICABILITY OF FAIR HEARING

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“Fair hearing is not an abstract term available to a party at all times and in all circumstances. It must real in the circumstances of the facts of the case, see Olatubosun V Anenih (2009) 18 NWLR (PT. 1165) 560. It is trite that a recalcitrant defaulting party should not hold the court and the other party to ransom by use of fair hearing rules or rules of court. It goes without saying that justice should be even handed. See Okotcha V Herwa Ltd (2000) 15 NWLR (Pt. 690) 249”.

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal republic of Nigeria 199 (as amended)|Court of Appeal Rules 2011|Lagos State High Court (Civil Procedure) Rules 2015|

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CLICK HERE TO READ FULL JUDGMENT

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