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  • 2002-08-26
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Ndika v Chiejina

ANYAEGBUNAM NDIKA AND 6 OTHERS

V

M. O. CHIEJINA

COURT OF APPEAL

( ENUGU DIVISION )

JUSTIN THOMPSON AKPABIO, JCA ( Presided )

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

JOHN AFOLABI FABIYI, JCA

CA/E/75/99

WEDNESDAY, 2ND MAY, 2001

APPEAL - Appeal against decision of High Court - When lies as of right Period within which such right exercisable  - Section 220(1)(a), 1979

Constitution and section 25(2)(a), Court of Appeal Act, Cap. 75, Laws of the Federation, 1990

APPEAL - Appeal against final judgment - Right to complain against interlocutory orders in the course of appeal against final judgment

APPEAL - Interlocutory ruling which did not conclude resolution of interlocutory dispute - Whether qualifies for appeal

APPEAL - Notice of appeal - Where fundamentally defective - Whether cured by leave to amend grounds of appeal and to file additional grounds

BENCH AND BAR - Okeke vs. Nwokeye (1999) 13 NWLR (Pt. 635) 495 Whether authority for the proposition that division of labour exists between the bar and the bench in ensuring that the court considers all applications pending before it

COURT - Duty of to consider all applications pending before it - Effect of failure to  - Admonition on need to consider all pending applications COURT - Duty of to consider all issues raised and argued before it

COURT - Excess award made by court - Whether proper to award what is not claimed - Power of appellate court to modify excess awards

COURT - Motions pending before the court - Paramount duty of court to consider before proceeding to judgment - Where court fails to so consider - Effect

COURT - Motions pending before the court - Where counsel fails to draw court’s attention thereto - Whether may be deemed abandoned

COURT - Trial Judge - Failure of to hear motion pending before him Inference arising thereby

JUDGMENT AND ORDERS - Default judgment  - When becomes a final judgment - Whether can be set aside by another judge of co-ordinate jurisdiction

JUDGMENT AND ORDERS - Interlocutory ruling which did not conclude resolution of interlocutory dispute - Whether qualifies for appeal

JUDICIAL PRECEDENT - Doctrine of - Relaxation of same in matters of judicial discretion

LEGAL PRACTITIONER - Sins of counsel - When a litigant cannot be punished for the sins of counsel - Need to apply the principle with caution to avoid abuse

PLEADINGS - Where filed out of time - Effect

PRACTICE AND PROCEDURE - Motions - Pending motion before the court - Whether to be deemed abandoned where counsel fails to draw the court’s attention to it

PRACTICE AND PROCEDURE - Trial court - Excess awards made thereby -  Whether proper - Power of appellate court to modify same

PRACTICE AND PROCEDURE - Trial Judge - Failure of to hear motion pending before him - Inference arising thereby

Issues:

1.            Whether there was a statement of claim before the honourable court on which the judgment was based.

2.            Whether the learned trial Judge was right in law when he heard evidence on damages and delivered judgment in the suit while a motion on notice was pending praying the court to set aside its earlier ruling and interim judgment and to deem the statement of defence filed on 12/6/96 as sufficient and proper.

3.            Whether the learned trial Judge was right in law when he granted a relief which was not prayed for by the respondent.

4.            Whether the court was right when it visited the sins of counsel on the appellants by refusing to set aside the judgment given in default of pleadings when counsel stated in writing that he was personally responsible for the default.

5.            Whether a Judge who inherited a suit can set aside a judgment in default of pleadings delivered by his learned brother.

Facts:

This is a case in which the appellants as defendants at the High Court of Anambra State, sitting at Onitsha, did not file their statement of defence in a case of assault and humiliation, within the prescribed time. Following that the learned trial Judge, proceeded to hear the case. After reaching what the learned trial Judge called “interim judgment”, the said Judge adjourned the case to a future date to take further evidence to enable him assess damages and make declaration in the matter. However, before that date, the appellants rushed in with an application for extension of time to enable them file their statement of defence.

The learned trial Judge ignored this application of the appellants and proceeded to take evidence of the respondent as he had proposed on the scheduled date, after which he proceeded to find judgment in which he found against the appellants. The application for extension of time to defend the suit on merit had remained in abeyance until it was ultimately transferred to another Judge, who still refused to extend time for appellant’s statement of defence to be filed.

Dissatisfied, the appellants have appealed to the Court of Appeal contending, inter alia, of unfair hearing contrary to section 33(1) of the 1979  Constitution.