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Ndaba (Nig.) Ltd. vs. Orabkwe

NDABA (NIG.) LIMITED

ALHAJI Y. N. IBRAHIM

V

MR. SIMON ORABKWE

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA A. OKUNOLA, JCA ( Presided and Read the Lead Judgment )

PATRICK IBE AMAIZU, JCA

WALTER SAMUEL NKANU ONNOGHEN, JCA

CA/IL/8/2001

TUESDAY, 9TH JULY, 2002

APPEAL - Trial court - Exercise of discretion thereby - When Court of Appeal competent to review

COURT - Application brought by party before it - Fate of - Duty of court to express in writing

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

COURT - Trial court - Exercise of discretion thereby - When Court of Appeal competent to review

COURT - Trial court - Motion on notice before trial court - Failure of trial court to hear argument in respect of before making a ruling or judgment - Effect

COURT - Trial court - Where entered judgment for plaintiff on return date notwithstanding defendant motion before it - Impropriety of

FAIR HEARING - Right to - Where breached - Correct decision subsequently arrived at - Whether relevant

JURISDICTION - Issue of - When raised - Duty of court

JURISDICTION - Nature of - When can be raised

NATURAL JUSTICE - Twin pillars of

PRACTICE AND PROCEDURE - Application before the court - Fate of Duty of court to express in writing - Effect of court ignoring an objection raised by party

PRACTICE AND PROCEDURE - Legal process - How served on an individual

PRACTICE AND PROCEDURE - Motion on notice before the trial court Failure of trial court to hear argument in respect of before making a ruling or judgment - Effect

PRACTICE AND PROCEDURE - Kwara State High Court ( Civil

Procedure) Rules, Order 22, rule 3(1)  - The words ‘any proceedings’ thereunder - Whether excludes undefended list

PRACTICE AND PROCEDURE - Undefended list action - Extension of time within which to defend the suit - Application for - Where filed after expiration of five days before date fixed for hearing - Whether court can consider

PRACTICE AND PROCEDURE - Undefended list procedure - Where party out of time before taking any steps towards defending a suit - Right of party to be heard - Whether foreclosed

Issues:

1.            Whether the trial court has the jurisdiction to hear the suit in view of the irregular and non-service of the writ of summons on the defendants/appellants (Ground 1).

2.            Whether or not a proceeding begun under the undefended list as provided for under Order 23 of Kwara State High Court Rules 1989 foreclosed the right of a party to be heard when out of time (Ground 2).

3.            Whether the trial court exercised its discretion judiciously and judicially in entering judgment for the plaintiff/respondent on the return date notwithstanding the motion of the defendants/appellants before it.

Facts:

Plaintiff commenced the suit leading to this appeal under the undefended list procedure at the High Court of Justice, Ilorin in Kwara State. The plaintiff effected service of the writ on defendant’s by leaving the writ meant for both the 1st and 2nd defendants with the typist/secretary of the 1st defendant at the office of 1st defendant. Consequently, 2nd defendant who is the Chairman and Managing Director of the 1st defendant was never served. Subsequently, the defendants filed a conditional appearance together with a motion on notice urging the court to set aside the purported service of the writ on the defendants or alternatively an extension of time within which the defendants could file their notice of intention to defend the suit.

On the return date, defendants were represented by their counsel and all efforts made thereby to argue the motion proved abortive as the trial court ignored the motion and proceeded to give judgment to the plaintiff as per the writ of summons on the ground that all processes filed by defendants were filed after the expiration of five (5) days given under the rules governing the trial of undefended list.

Dissatisfied, defendants appealed to the Court of Appeal against this decision. The Court of Appeal considered and clarified Order 21, rule 3(1) and (2) of the Kwara State High Court (Civil Procedure) Rules, 1989 which provides:-

“3(1) The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these provisions, or by any judgment, order or direction, to do any act in any proceedings.

(2) The court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.”