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  • System Metal Industries Ltd. vs. Ehizo
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  • 2003-09-01
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System Metal Industries Ltd. vs. Ehizo

SYSTEM METAL INDUSTRIES LTD.

V

JAMES EHIZO

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided and Read the Lead Judgment )

IBRAHIM TANKO MUHAMMAD, JCA

IFEYINWA CECILIA NZEAKO, JCA

CA/J/247/98

WEDNESDAY, 15TH MAY, 2002

APPEAL - Ground of appeal - Where not a reflection of what happened in the lower court - Effect

APPEAL - Ground of appeal - Where not related to the appeal - Effect

APPEAL - Issue - Fresh issue on appeal - Need to seek and obtain leave of court before raising same

APPEAL - Preliminary objection - Procedure for raising on appeal

APPEAL - Trial court - Original record of appeal emanating therefrom Where certain proceedings cannot be traced therefrom by the Court of Appeal - Duty on Court of Appeal

COURT - Issue of jurisdiction - When raised - Duty of court

COURT - Trial court - Original record of appeal emanating therefrom Where certain proceedings cannot be traced therefrom by the Court of Appeal - Duty on Court of Appeal

JURISDICTION - Issue of jurisdiction - When raised - Duty of court JUSTICE - Record of proceedings - Act of removing part of Judge’s note therefrom effect of on justice - Need for such act not to be condoned

NOTABLE PRONOUNCEMENT - Act of removing part of Judge’s note from the record of proceedings as a threat to justice which must not be condoned

PRACTICE AND PROCEDURE - Trial court - Original record of appeal emanating therefrom - Where certain proceedings cannot be traced therein by the Court of Appeal - Duty on Court of Appeal

PRACTICE AND PROCEDURE - Undefended list - Procedure for under Order 23, rule 3(1) 2 and 4 of Bauchi State High Court Civil Procedure Rules

Issues:

1.            Whether the judgment which was entered in this suit on the 11 /4/95 was valid having been entered on a day when the matter was fixed for the defendant’s counsel to argue the objection to jurisdiction and not for hearing.

2.            Whether the defendant/appellant was given a fair hearing in this case.

Facts:

Plaintiff in this suit took out a writ of summons on the undefended list against the defendant in the High Court of Bauchi State. The defendant on 31/1/95 filed a motion on notice for an order allowing the defendant to file notice of intention to defend out of time but the defendants inadvertently failed to attach the notice of intention to defend and the affidavit.

Consequently, on 7/2/95, defendant filed another application containing similar prayers but this time exhibiting the missing notice of intention to defend. On the same day counsel sought an adjournment to enable them argue the issue of jurisdiction proposed to be raised by the defendant.

On the next adjourned date, rather than raise the issue of jurisdiction defence counsel moved her former motion of 31/1/95 withdrawing the application of 7/2/95 which was the correct application. After the submission of counsel, trial court found notice to defend incompetent and entered judgment for the plaintiff as per the writ of summons.

The defendants subsequently filed an application praying the court for:

(1)        An order setting aside the judgment entered against the defendant in the undefended list on the 11 /4/95, on the following grounds:-

(a) That the said judgment is a nullity being a judgment given on a date when the defendant was to be heard on its preliminary objection as to jurisdiction.

(c) The judgment is one entered in error, the error being the wrongful striking out of the motion dated 27/1/95 and filed on 31/1/95, which had a defective title to the affidavit in support of the notice of intention to defend. An order allowing the defendant to raise the objection and the jurisdiction which was meant to have been taken on the 11 / 4/95.

OR IN THE ALTERNATIVE

(3) An order relisting the motion dated 27th day of January, 1995 and filed on the 7/2/95, which was struck out on the 11/4/95, and striking out the motion dated 27/1/95, but filed on 31/1/ 95  and giving a ruling on the merit in respect to the plaintiff’s application for judgment in the undefended list as made on the 11/4/95.

OR IN THE ALTERNATIVE

(c) An order allowing the defendant to amend the affidavit titled counter affidavit by re-swearing to it and curing the defect in title of the said affidavit in support of the notice of intention to defend by deleting the word counter and to reply on the merit to the submission made by the plaintiff’s counsel in support of this application for judgment in the undefended list.

The application was refused in its entirety. The defendant therefore appealed to the Court of Appeal.