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  • 2017-04-03
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Regd. Trustees, Presbyterian Church of Nigeria v. Etim

THE REGISTERED TRUSTEES OF THE
PRESBYTERIAN CHURCH OF NIGERIA
V
JOHN ASUQUO ETIM
SUPREME COURT OF NIGERIA

I. T. MUHAMMAD JSC (Presided and Read the Lead Judgment)
MUSA DATTIJO MUHAMMAD JSC
KUMAI BAYANG AKA’AHS JSC
CHIMA CENTUS NWEZE JSC
AMIRU SANUSI JSC

SC.84/2005
FRIDAY, 20 JANUARY 2017

FAIR HEARING - Demands of - Nature of
FAIR HEARING - Meaning of - What encompasses
FAIR HEARING - Test for determining observance of - Party who fails to utilize opportunity given to present case of - Whether may allege breach of
PRACTICE AND PROCEDURE - Adjournment - Application for - Discretionary power of court to grant - Conditions precedent to exercise of

PRACTICE AND PROCEDURE - Affidavit of service - Purport of
PRACTICE AND PROCEDURE - Motion on notice - Propriety of court determining in absence of respondent with sufficient notice of - Respondent intending to contest - Proper step to take
PRACTICE AND PROCEDURE - Motion on notice and motion ex-parte - Distinction between
PRACTICE AND PROCEDURE - Rules, statutes and practice of court - Need for compliance with
PRACTICE AND PROCEDURE - Service of process - Proof of - What constitutes - High Court Rules of Cross River State, Order 9, rule 17 considered
STATUTE - High Court Rules of Cross River State, 1979, Order 9, rule 17 - Service of process - Proof of - What constitutes

 

Issues:
 

1. Whether the learned justices of the Court of Appeal were right in discharging the order of interlocutory injunction on the grounds that:
a. The learned trial judge breached the rule of fair hearing as entrenched in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, and
b. That the motion for interlocutory injunction was heard ex-parte.
2. Whether the learned justices of the Court of Appeal properly applied the cases of Yisi (Nig.) Ltd v. Trade Bank Plc. (1999) 1 NWLR (Pt. 588) 646; Owena Bank Plc. v. Mohammed (1998) 1 NWLR (Pt. 533)301 and Bamawo v. Garrick (1996) 6 NWLR (Pt. 401) 356 to the facts and circumstances of this case when they condemned the learned trial judge of injudicious exercise of judicial powers in refusing adjournment when there was in fact no application for adjournment before her.

 

Facts:
 

The appellant filed an action in the High Court of Cross River State claiming a declaratory relief to the effect that it was entitled to statutory right of occupancy over a piece of land situate at Big Qua Town Road, Calabar, Cross River State. The appellant then filed a motion ex-parte for an order of interim injunction and a motion on notice for interlocutory injunction praying the trial court to restrain the respondent from erecting any structure or continuing with any construction work on the land in dispute. The trial court declined to determine the exparte motion and having found that the respondent was properly served with notices of motion on notice, the trial court granted the reliefs sought therein. Aggrieved, the respondent appealed to the Court of Appeal where his appeal was allowed and an order discharging the interlocutory injunction made by the trial court. Also aggreived, the appellant appealed to the Supreme Court contending that the lower court erred by discharging the order of interlocutory injunction on grounds that the motion was heard ex-parte. In determining the appeal, the Supreme Court considered the following statutes: Cross River State High Court (Civil Procedure) Rules, Order 54, rule 6:
A document shall not be filed unless it has indorsed on it, the name and number of the cause, the date of filing and whether filed by plaintiff or defendant; and on being filed such indorsement shall be initiated by the registrar.Constitution of the Federal Republic of Nigeria, 1999, section 36(1):
In the determination of his civil rights and obligations, including any question ‘or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.