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  • 2005-06-27
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Chevron Nig. Ltd. vs. Enioye

CHEVRON NIGERIA LIMITED

V

S. O. ENIOYE & ORS.

COURT OF APPEAL

( BENIN DIVISION )

MUHAMMAD S. MUNTAKA-COOMASSIE JCA ( Presided )

PATRICK IBE AMAIZU JCA (Read the Lead Judgment)

ADAMU AMINA AUGIE JCA

CA/B/120/2000

WEDNESDAY, 7TH JULY, 2004

COURT - Appellate court - Power of to correct trial court’s wrongful exercise of discretionary power

COURT - Cost awarded by - Need to pay before the court is asked to further exercise its discretion

COURT - Discretionary power of trial court to relist suit struck out How exercised

COURT - Duty on while considering applications brought in cases before it

EVIDENCE - Affidavit - Deponent thereof - Need for to sign the affidavit sworn to

EVIDENCE - Affidavit - Need for motions to be supported thereby

EVIDENCE - Proof - Standard of proof in civil proceeding

PRACTICE AND PROCEDURE - Acting judicially - Acting judiciously -  Meanings of

PRACTICE AND PROCEDURE - Applications brought in cases before the court - Duty on court while considering

PRACTICE AND PROCEDURE - Cost awarded by court when suit struck out - Need to pay before asking court to exercise discretion to re-list

PRACTICE AND PROCEDURE - Motions - Need for to be supported by affidavit

PRACTICE AND PROCEDURE - Re-listing struck out suit - Discretionary power of court in respect of - How exercised

WORDS AND PHRASES - ‘Acting judicially’ - ‘Acting judiciously’ - Meanings of

Issues:

1.              Whether the respondents’ application filed on 21st August, 1997 to relist the case struck out on 29th July, 1997 was competently before the learned trial Judge.

2.              Whether on the materials before the court, the learned trial Judge was right in exercising discretion in favour of the respondents.

Facts:

The respondents by a motion on notice, applied to the lower court for an order to relist suit No. HOK/59/94 which was struck out by the trial court on 29th July, 1997. The respondents averred in their affidavit in support of the motion, inter alia, that they attended court regularly between 1995 and 1996 but the court did not sit. That as at the time the court started sitting, due to communication gap between them and their counsel, they did not know the dates on which the case was fixed. Also, that their counsel told them that hearing notices were issued before the case was eventually struck out; but that they did not receive any of the hearing notices. That it was when the deponent came to Okitipupa that the counsel for the 2nd to 6 th defendants told him that their action had been struck out.

The appellant in answer to the motion filed a counter affidavit wherein he contended, inter alia, that the respondents’ counsel was aware of the hearing date of the suit because he was present in the court that day but left before the matter was called and struck out.

The trial court heard arguments of counsel on the application and in

a considered ruling delivered on the 27th day of January, 1998 granted the application and consequently set aside its judgment delivered in the case on 27 th July,  1997.

Dissatisfied, the appellant appealed to the Court of Appeal.