Dominic Okoro V. Margarete Okoro & Anor (1998)
LawGlobal-Hub Lead Judgment Report
UBAEZONU J.C.A.
The Appellant, in the lower court claimed as follows;
“(a) Return of the wife – the 1st defendant and the child whose pregnancy she was carrying when she was enticed away from her matrimonial home.
(b) Special damages- N280,000.00 being cost of his property removed by the defendants.
(c) General damages – N1,000.000.00 for depriving him of the use of the property and for enticement of his wife – the 1st defendant.”
The appellant however failed to file his statement of claim within time. In consequence, the respondent by a motion dated 30th January, 1996 prayed the court for an order dismissing or striking out the suit. By a motion dated 5th February, 1996, the appellant prayed the court for an Order for extension of time within which to file his Statement of claim. Both motions came up for hearing at the lower court on 7th February, 1996. The learned trial Judge, M.U. Edozie J., heard the motion for dismissing or striking out the suit. She dismissed the suit.
Dissatisfied with the judgment/ruling, the appellant has appealed to this court on two grounds of appeal. He also filed three issues for determination as follows:-
“1. Was the Learned Trial Judge correct in hearing and determining a motion to dismiss/strike-out the suit first when there was in court a motion for extension of time within which to file the statement of claim?
- Was there fair-hearing when the learned trial Judge after hearing the applicant in a motion to dismiss/strike-out the suit for want of deligent prosecution proceeds (sic) to judgment/ruling without calling on the respondent to speak inspite of the fact that counsel for the respondent was there.
- Would it be proper interpretation of section 236 or the Constitution of the Federal Republic of Nigeria 1979 as amended to construe that the High Court has no jurisdiction over customary Law marriages in the absence of any ouster provision 25 of the said Constitution.”
The appellant argued issues 1 and 2 together in his brief. Learned counsel contended that since there were two motions before the court – one for dismissal or striking out the suit for want of deligent prosecution, the other for extension of time within which to file the appellant’s statement of Claims, the court ought to have heard the motion for extension of time first. On the contrary, the court heard the motion for dismissal or striking out of the suit and dismissed the same while the motion for extension of time to file the statement of claim was still pending. He refers to and relies on Abiegbe v. Ugbodime (1973) 1 S.C. 133.
Learned counsel also complains that the appellant was not given a hearing even though his counsel was present in court. He contends that the failure to give him a hearing was a breach of the principle of fair hearing enshrined in S.33 (1) of Nigerian Constitution.
On issue No.3, learned counsel argues that the learned trial Judge suo motu raised and determined the issue of jurisdiction. The court held that it had no jurisdiction over customary law marriage. Counsel contends that the suit before the court was one of the tort of enticement. The issue before the court, counsel argues, was not a petition for dissolution of a customary law marriage.
It is submitted that under S.236 of the Nigerian Constitution the High Court has unlimited jurisdiction save as limited by S.230 of the said Constitution – See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1SCNLR 296; Sale v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) 17; Agbaje v. Adelekan (1990) 7 NWLR (Pt. 164) 595. Learned counsel argues that the jurisdiction of the High Court can only he ousted by express legislation. He contends that the case before the court was one of enticement. It is submitted that under SS 17 and 18 or the Magistrates Court Law and S.13 of the High Court Law Edict No. 16 of 1987, Laws of Anambra State applicable in Enugu State, the High Court has concurrent jurisdiction with the Magistrate’s Court in matters relating to Customary Law Marriages.
The respondents in this appeal failed to file a respondent’s brief. On the 23rd September, 1997 the appellant obtained leave of the court to argue the appeal on the appellant’s brief only. When the appeal came up for hearing on 17th November, 1997 learned counsel for the appellant adopted his brief and urged the court to allow the appeal.
Issues 1 and 2 argued together are sufficient to dispose of this appeal.
Firstly, let me dispose or issue No.2. This issue complains of a denial of fair hearing in that the learned trial Judge after hearing the respondent’s counsel in a motion to dismiss or strike out the suit proceeded to give her judgment/ruling without calling on counsel for appellant to reply even though counsel was present in court. This contention is not correct and not bourne out by the record or appeal.
At page 18 of the recond of appeal there is the following record of the proceedings in court at lines 16 – 24
“Motion dated 30/1/96 for leave or court to dismiss the suit under order 9 Rule 42 of High Court Rules. Motion is supported by a 13 paragraph affidavit and counsel relies on accompanying exhibit A, B, C, & D. Urges the court to grant the applicant (Sic) counsel for the plaintiff/Respondent opposes the application and relies on a counter affidavit which is not before the court. Mohammed v. Musawah (1985) 3 NWLR Part 11 page 9”. (Italics mine) Thus, the record shows that learned counsel for the plaintiff/respondent who is the appellant in this court opposed the application to dismiss or strike out the suit and relied on a counter-affidavit which was not before the court. He went further to cite the case of Mohammed v. Musawah (Supra). In the face of the record, how can learned counsel complain of denial of fair hearing? There was no such denial.
The appellant however seems to be on a strong wicket in his issue No.1.
The practice in all the courts is that where there is a default in filing a pleading within time, and there are two motions pending before the court one of which is for extension of time to file the pleading and the other is for striking out the suit for want of deligent prosecution or for judgment in default of pleading, the motion for extension of time is taken first. This practice is in accord with common sense as well as for meeting the justice of the case. It is only when the motion for extension of time is refused that the motion for judgment or to dismiss/strike out the suit should be taken. This practice has acquired the force of law by the Supreme Court decision in Abiegbe v. Ugbodima (Supra). The Supreme Court stated that:
“Where a plaintiff is out of time but files an application for extension of time, and there is another application to dismiss his action for want or deligent prosecution, the court should grant application for extension of time (provided there is no inordinate delay by the applicant) on the condition that he should pay cost and such cost is sufficient punishment for the plaintiff”.This settles the question in this appeal. It is wrong for the learned trial Judge to ignore a pending application for extension of time and proceed to dismiss the suit. The application for extension of time was filed in the court on 5/2/96 see page 15 of the record lines 31 – 35. The motion to dismiss the suit was heard on 7/2/96 i.e. 2 days after the motion for extension of time had been filed – see page 18 line 10 to page 19 line 5. Mr. C.V.C. Ezeugwu was recorded as appearing for Plaintiff/applicant. Why he did not proceed to move his motion after announcing himself as counsel for the plaintiff/applicant is not clear. But having announced himself as such it is for the court to find out the nature of the applications before it since both counsel announced themselves as appearing for the applicant. It is the duty of the court to find out the nature or the processes in its file and to determine which of them should take priority over the other. The failure of the court to do so in this case has done injustice to the appellant. It is the duty of this court to remedy the injustice. In the circumstance this appeal succeeds and it is allowed. The judgment/ruling of the lower court delivered on 7/2/96 is hereby set aside. The case is remitted to the High Court of Nsukka Judicial Division or Enugu State for an order granting the appellant extension or time within which to file his statement of claim.
The issue of jurisdiction has not been argued by both parties before the lower court so I shall refrain from making any order to that effect. The respondents shall be at liberty to raise any such issue in the lower court if they so desire. The case shall be heard at the lower court by any Judge other than M.U. Edozie J. who dealt with case before it came on appeal. The appellant shall have N1, 000.00 costs for this appeal.
Other Citations: (1998)LCN/0373(CA)
