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(2018) LPELR-43711(SC)

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


R. A. OLIYIDE & SONS LIMITED - Appellant(s)



Other Citations

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This appeal borders on Civil Procedure.

This appeal is against the judgment of the Court of Appeal, Ibadan Judicial Division delivered on 15th February, 2001. By the aforesaid decision, the Court held that the plaintiff's suit was incompetent and was accordingly struck out.

The Appellant was the plaintiff at the High Court. It filed an action against the Respondent who was Defendant, seeking for declarations and monetary claim for breach of contract arising from a contractual relationship which hitherto existed between the Plaintiff and the Defendant. In the course of proceedings before the High Court, plaintiff/appellant amended its statement of claim. The defendant filed an original statement of defence denying the claim of the plaintiff. However, in the course of proceedings, defendant amended its statement of defence, hence an amended statement of defence was filed. The plaintiff replied to the defence filed by the defendant.

Upon being served with the Writ of Summons and Statement of Claim, the defendant without filing any defence, moved the Court vide an application challenging the competence of the plaintiff's suit. The said application was duly argued and dismissed. The application filed by the defendant was anchored on a complaint that no pre-action notice was issued and served on the defendant before the filing of the action.  In proving its case, plaintiff called three witnesses and tendered various documentary evidence admitted as exhibits. Defendant on its part called four witnesses and also tendered documentary evidence which were admitted as exhibits. The learned trial Judge, after taking addresses of counsel to the parties delivered its judgment whereby it found for the plaintiff.
Being dissatisfied with the judgment delivered on 22nd January, 1996, Defendant/Respondent filed its notice of appeal against that decision. It is instructive to state that the notice of appeal as stated thereon was filed against the decision delivered on 22nd January, 1996 and no other decision i.e. it had nothing to do with the ruling delivered on 16th January, 1995. Also at the High Court, the appeal filed against the decision of 16th January, 1995 was not consolidated with the appeal filed against the judgment delivered on 22nd January, 1996. Furthermore, in considering the appeal filed before it, the Court of Appeal limited its consideration to the validity of Exhibit T (pre-action notice) tendered by the parties and held that, that notice did not satisfy the requirement of Section 46 of the Obafemi Awolowo University Act, as to issuance and service of pre-action notice. The appellant being dissatisfied with the judgment of the Court of Appeal, obtained leave of that Court and consequently filed an appeal to the Supreme Court.

The Court of Appeal determined the appeal on Appellant's first issue couched as follows:

"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."

On the whole, the Court of Appeal found merit in the appeal and accordingly allowed same. The decision of the Court of Appeal was set aside while the decision of the High Court was affirmed.

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