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R. A. OLIYIDE & SONS LIMITED v. O.A.U.

R. A. OLIYIDE & SONS LIMITED
V
OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE
SUPREME COURT OF NIGERIA


OLABODE RHODES-VIVOUR JSC (Presided)
MARY UKAEGO PETER-ODILI JSC
CLARA BATA OGUNBIYI JSC (Read the Lead Judgment)
AMIRU SANUSI JSC
SIDI DAUDA BAGE JSC

SC.357/2001
FRIDAY, 9 FEBRUARY 2018

APPEAL - Brief - Non-signing of by a legal practitioner -
Whether is a mere irregularity that may be waived
APPEAL - Fresh issue on appeal - Where party raises -
Impropriety of -
APPEAL - Jurisdiction of lower court - Supreme Court -Power
of to assume - Section 22, Supreme Court Act considered
EVIDENCE - Admission - Party making and later reneging by
an amendment - Impropriety of - Party not allowed to
approbate and reprobate in presenting his case EVIDENCE - Admitted facts - Proof of - Needlessness of
JUDICIAL PRECEDENT - Cases - Issues decided therein -
Propriety of being authorities for
PRACTICE AND PROCEDURE - Brief - Non-signing of by a
legal practitioner - Whether is a mere irregularity that
may be waived
STATUTE - Supreme Court Act, section 22 - Jurisdiction of lower
court - Supreme Court - Power of to assume
WAIVER - Brief - Non-signing of by a legal practitioner -
Whether is a mere irregularity that may be waived

Issues:
1. Whether in the eyes of the law and by the incompetent
brief of argument filed by the respondent at the lower
court, the respondent herein (the appellant at the Court
of Appeal) had abandoned its appeal at the lower court
which robs the lower court of the requisite jurisdiction
to hear and determine the appeal before it, ab initio.
2. Whether the learned justices of the court below
breached the appellant’s right to fair hearing when they
failed to determine the issue properly raised and
canvassed before it with respect to the incompetence
of ground 1 of the respondent’s notice of appeal filed
and maintained on 9 February 1996 before the lower court.
3. Whether the defendant/respondent raised any
competent question of pre-action notice to warrant
its consideration by the court below.
4. Whether exhibit ‘T’ satisfied the requirement of a valid
pre-action notice.
5. Whether the learned justices of the court below were right in failing to consider the merit of the case before it.

Facts:
In the High court of Oyo State, the plaintiff now appellant
sued the respondent for breach of contract. It sought declaratory
and monetary reliefs. The respondent filed a preliminary objection
challenging the competence of the suit for failure to issue preaction
notice. The trial court dismissed the preliminary objection
and dissatisfied, the respondent filed an appeal to the Court of
Appeal which was subsequently abandoned. The trial court granted
the reliefs sought by the appellant. Dissatisfied still, the respondent
appealed to the Court of Appeal. The lower court allowed the
appeal on grounds that the pre-action notice issued by the appellant
did not satisfy the requirement of section 46 of the O.A.U Act.
Also dissatisfied, the appellant appealed to the Supreme Court
contending inter alia that the lower court erred in considering
the question of pre-action notice not competently raised by the
respondent.