Compulaw - 1st Indigenous Digital Law Library

Brief

Issues formulated from a ground of appeal
Issue for determination
Decision on which there is no appeal

Facts

The Appellants, as Plaintiffs instituted an action at the High Court of the then This is an appeal against the judgment of the Court of Appeal, Holden at Benin City in appeal No. CA/B/43/98 delivered on the 6th day of January, 2003 in which the Court allowed the appeal of the present Respondents, set aside the decision of the trial Court and struck out the suit of the present Appellants for being incompetent.

The Appellants, as Plaintiffs instituted an action at the High Court of the then Bendel State of Nigeria, Holden at Benin city against the Defendants/Respondents claiming jointly and severally the sum of five hundred and eleven thousand, nine hundred and sixty naira (N511,960.00) damages suffered by them resulting from the death of one Mrs. Helen Okonobor as a result of the alleged negligence of the driver of the Defendants/Respondents.

In the course of the proceedings the Defendants/Respondents raised an objection as to the competence of the action as the Plaintiffs/'Appellants are said not to have the requisite locus stancii to constitute the action and urged the Court to strike out the suit. Though the trial Court found that:

"There is nothing to show that the person (sic) representative, if any, had failed to act within six months of the death of the deceased. All that the Plaintiffs are required to do is to aver in their particulars of claim on the writ of summons or in the statement of claim in that on personal representatives have been appointed or if appointed, that six months have elapsed without any action being instituted by the personal representatives."

The Court went further to hold that

"It will not be in the interest of justice to strike out the case."

And proceeded to apply the provisions of Order 47(1) of the High Court of Bendel State Civil Procedure Rules 1988, as applicable to Edo State, to order that the appropriate amendment be made by the Plaintiffs/Appellants.

The present Respondents were not satisfied with the ruling and appealed to the Court of Appeal, Holden at Benin City, which allowed the appeal as earlier stated in this judgment. The lower Court is of the view that the appropriate order the trial Court ought to have made after finding that the action was incompetent was to have struck out the suit and proceeded to do so. It is against that decision that the Appellants have appealed to this Court

Issues

1
Whether the Court below properly considered the provisions of the proviso...

Okonobor V. Edegbe (2010) CLR 2(a) (SC)

Judgement delivered on February 25th 2010

Brief

Facts

Issues