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  • Nasco Mangt. Serv. Ltd v. A.N. Amaku Transport Ltd
  • 135
  • 2002-12-30
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Nasco Mangt. Serv. Ltd v. A.N. Amaku Transport Ltd

NASCO MANAGEMENT SERVICES LIMITED

V

A.N. AMAKU TRANSPORT LIMITED

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

ISA ABUBAKAR MANGAJI, JCA ( Read the Lead Judgment )

IFEYINWA CECILIA NZEAKO, JCA

CA/J/132/96

THURSDAY, 24TH JANUARY, 2002

APPEAL - Issues  - Need to relate to grounds of appeal - Effect of failure to

APPEAL - Interlocutory decisions - Failure  to appeal against - Section 25(2)  of the Court of Appeal Act,  1976

APPEAL - Notice of appeal -  Need for to contain exact date when judgment appealed against was delivered - Effect of failure to

APPEAL - Preliminary objection - Failure of objector to distinctively argue same in the brief of argument - Effect

APPEAL - Ruling of High Court - Where a final decision - Whether leave required to appeal against same

COURT - Trial court - Evaluation of evidence  - Whether primarily within the province of trial court

COURT - Trial court - Reliance of on supporting affidavit to an abandoned motion to arrive at its findings - Whether proper

EVIDENCE  - Witnesses - Credibility of  - Whether contradictory evidence of  parties raises same - How contradiction resolved

EVIDENCE - Evaluation of evidence - Whether primarily within the province of trial court - Impropriety of relying on affidavit in support of an abandoned motion in the evaluation of evidence after oral trial

JUDGMENT AND ORDERS - Judgment or order of court - Determination whether final or interlocutory - Two methods therefore

JUDGMENT AND ORDERS - Judgment appealed against - Exact date when same was delivered - Need for notice of appeal to contain same - Effect of failure to

JUDGMENT AND ORDERS  - Interlocutory order - Features of - Whether order of stay of execution is interlocutory

JUDGMENT AND ORDERS - Date of delivery of  judgment - Where date appearing on the judgment is wrong - Power of court to correct

JUDGMENT AND ORDERS - Enforcement of judgment - Writ of execution -  Time within which to issue

JUDGMENT AND ORDERS - Judgment - Date fixed for delivery of Whether court ought to obtain consent of counsel before shifting the date

NOTABLE PRONOUNCEMENT - On need for counsel not to reduce legal submission to mere speculation

PLEADINGS  -  Bindingness of

PRACTICE  AND PROCEDURE - Appeal - Interlocutory decisions - Time to appeal against - Section 25(2) of the Court of Appeal Act, 1976

PRACTICE AND PROCEDURE - Appeal - Issues  for determination -

Need to relate to grounds of appeal - Effect of failure to

PRACTICE AND PROCEDURE - Appeal - Leave to appeal against decision of  High Court - Where decision is final - Whether leave required

PRACTICE AND PROCEDURE - Appeal - Notice of  - Whether must contain exact date when judgment appealed against was delivered Effect of failure to

PRACTICE AND PROCEDURE - Appeal - Preliminary objection to the hearing of - Effect of failure to distinctly argue same in the brief of argument

PRACTICE AND PROCEDURE -  Enforcement of judgment - Writ of execution  - Time within which to issue

PRACTICE AND PROCEDURE - Hearing notice - Fundamental nature of in the adversary system of justice - Effect of failure to serve when service of is called for

PRACTICE AND PROCEDURE - Judgment and order  - Date of delivery of - When date appearing on the judgment is wrong - Power of court to correct

PRACTICE AND PROCEDURE - Judgment and order  - Whether final or interlocutory - Two methods for determining

PRACTICE AND PROCEDURE - Stay of execution  -  Application for stay of execution - Nature of  - Whether order of is interlocutory

Issues:

1.              Whether the learned trial Chief Judge was right in correcting the date  on the court’s judgment to read 21/7/95.

2.              Whether the appellant’s application for stay of execution was rightly/properly refused.

3.              Whether the judgment of the trial High - Court based on the affidavit of the respondent and the interlocutory proceedings in the cause of  hearing on the motion to release the vehicle from detention - was justified approach in law

4.              Whether the proceedings of the High Court did not amount to a nullity having been conducted in breach of the appellant’s right of fair hearing.

Facts:

The plaintiff/respondent commenced this suit in the High Court of

Plateau State claiming against the defendant/appellant the sum of N1,350,000.00 as loss of earnings for the detention of plaintiff’s trailer from 15 th December, 1993 to 16th May, 1994 and thereafter at 270,000,00 per month until the entire sum is paid. The defendant denied the claim. After full hearing the suit was adjourned to 25/7/95 for the delivery of judgment. For reasons not contained in the records of appeal the date for the delivery of the judgment had to be shifted. Consequently hearing notice was served on counsel to the parties indicating that judgment would be delivered on 21/7/95. On

21 /7/95 judgment was accordingly delivered and the court found for the plaintiff. Counsel for the parties were present in court. However the judgment which was read from the civil record book  bore the original date of 25/7/95. The appellant was dissatisfied with the judgment, and so, filed this appeal.