This is the Judgment of the Court of Appeal, Lagos delivered on 29 March 2019, which set aside the Judgment of the Federal High Court, Lagos delivered on 3 October, 2017 by M.B. Idris J.
The lower Court had in its Judgment, concluded that the Appellant could not formulate its own issues in its response to the Originating Summons. Thus, the lower court refused to consider the issues contained in its Written Address and deemed the Counter Affidavit and Written Address as incompetent.
Dissatisfied with the Judgment, the Appellant appealed to the Court of Appeal and challenged the said Judgment. The Court of Appeal held inter alia that the fact that the Appellant had formulated issues that may be different from those canvassed by the 1st Respondent, is no legally tenable reason for the complete disregard or deliberate refusal to consider the Counter Affidavit filed by the Appellant, in opposition or defence to the originating summons.
The Court further considered the issues raised by the Appellant at the lower Court and found that same were distilled from the questions raised and submitted by the 1st Respondent in the Originating Summons. The Appellant’s Counter Claim was also held to have been duly and properly brought and filed in the action.
Thus, the Court of Appeal held that the Appellant’s right of fair hearing had been breached by the failure to consider the Counter Affidavit, Written Address and Counter claim filed by it, the consequence of which rendered the entire proceedings conducted by the lower court which culminated in the Judgment, a nullity and void, ab initio.
In addition, although the Appellant urged the Court of Appeal to invoke the provisions of Section 15 of the Court of Appeal Act, in considering the case presented by it at the lower Court, the Court refused to do so. The Court held that the only order it could make in the circumstance, was one for re-trial or re-hearing because its duty to consider other issues in the appeal was obviated since, there was no valid proceedings conducted by the lower court.