CaseLaw
Onyemaizu V. Ojiako (2010) CLR 1(c) (SC)
Judgement delivered on January 29th 2010
Brief
Facts
This appeal is against the decision of the Court of Appeal (Enugu Division) delivered on 22/2000 upholding the decision of the Anambra State High Court sitting at Ekwulobia striking out the substantive motion on notice otherwise an application in this matter praying for an order of certiorari to quash the decision of His Worship J.O. Ojiako dated 3/11/1993. The Applicant and the Respondents in the said motion are respectively the Appellant and the Respondents in this Court. The facts of this matter are not in dispute. The Applicant has been arraigned before His Worship J.A. Ojiako charged with the offence of stealing some quantity of corn worth about N500 from a farm and on having been convicted of the offence and sentenced to 6 months imprisonment or to pay a fine of N1000 in the alternative, the Applicant did not appeal the decision; rather he has filed an application for leave to apply for an order of certiorari to quash the said decision of 3/11/1993; no specific ground for seeking the relief has been set out in the body of the motion ex-parte. The trial Court obliged accordingly. In consequence thereof the Applicant has filed on 28/3/94 and served on the Respondents a substantive motion on notice supported by an affidavit and annexed to it are Exhibits 7, 8 and 8A for an order of certiorari to quash the said decision. The said motion on notice has been filed, served on the Respondent by a Chief Bailiff of the Ekwulobia High Court and he has filed an affidavit of service sworn to by the said bailiff. The said affidavit of service has been lodged in the Court's file before 21/4/94, the date fixed for hearing of the motion on notice. The Respondents, on their part, in consequence thereof have filed and served on the Applicant a notice of preliminary objection praying the trial Court to strike out the Applicant's motion on notice on the ground of non-compliance with the provisions of Rule 5(2) and (4) of Order 37 of the Anambra State High Court (Civil Procedure) Rules 1988. Meanwhile, the matter has been adjourned to 25/4/95 for hearing. On 25/4/1995 i.e. the date fixed for hearing of the application, the preliminary objection has been moved; however, on an application for a date by the Applicant his reply to the preliminary objection has been adjourned to 24/7/1995. In the interim, the Applicant on 17/7/95 without leave of Court has filed an affidavit deposed to by the Applicant himself, it has been headed "Affidavit of Service of motion on Notice filed in Court of 28/3/94" and Exhibited to it are two "Affidavits of Service" marked Exhibits 9 and 10 being the certified copies of the Exhibit 8 and 8A of is affidavit filed with motion of 28/3/94. Exhibits 9 and 10 show that the 1st and 2nd Respondents have each been served a "Writ Notice" and "Motion on Notice" respectively. The impression has thus been created by the Applicant of having complied with Rule 5(4) of Order 37 in support of the application. This is the gist of the controversy in this appeal.
Issues
Whether the Court of Appeal was right in treating non-compliance with Order 37...