MABAMIJE v. OTTO

Before Their Lordships

Between

AND

…………………….A…………………….

OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): This is an appeal from the judgment of the Court of Appeal, Benin City Division delivered on the 10th day of June, 2004. Briefly, the facts are these According to the Plaintiff/Appellant, she claims the Respondent promised to marry her, but breached his promise by refusing to marry her. As a result of the alleged breach, the Appellant as plaintiff took out a writ of summons claiming:

“(a) An Order setting down for hearing the points of law raised in paragraph 16 of the Statement of Defence.
(b) An Order dismissing the suit in its entirety and
(c) For such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
The motion was supported by a 16 paragraph affidavit, deposed to by Seliowei Willy Bandi, a Solicitor to the defendant. Annexed to the affidavit are documents marked exhibit A, B, C.
The grounds for the application were:
(a) The suit is an abuse of the process of this Honourable Court.
(b) Plaintiff is estopped from further litigating on the subject matter of this suit having waived her purported right to the claim in a previous suit against the defendant.
(c) The suit is embarrassing, scandalous, and vexatious. The alleged and/or purported marriage and/or promise to marry are contrary to public policy and therefore void having regard to the fact that the defendant is and was at all material times validly and legally married under the English Marriage Act of 1949.
The Plaintiff did not file a counter affidavit. On the 16th day of May, 2001, the learned trial judge heard submissions from counsel, and in a Ruling delivered on the 1st day of August 2001, dismissed the application. The reasoning of the learned trial judge is interesting.
The learned trial judge said:
“… In W/61/2000, the striking out order reads The parties and their counsel are absent. They are no longer interested in this case. The plaintiff has filed a notice of discontinuance. Consequently, this case is hereby struck out. From this order, there is no indication that the order was based on any particular act of the Defendant/Applicant…. To sum the position up, I would say had the parties filed terms of settlement upon which the W/61/2000 was struck out, the rule of estoppel would have applied because ipso facto, it would have shown that the acceptance of the terms exhibited is in settlement of W/61/2000. Mere discontinuance without more therefore cannot estoppel the party that discontinues from relitigating…. A Court of law is enjoined to take time before it decides to shut the doors of litigation against a willing plaintiff mid-stream.”
And with that the Defendant’s application was dismissed. Dissatisfied with the Ruling of the trial Court, he filed an appeal which was heard by the Court of Appeal, Benin-City Division. On the 10th day of June, 2004 the Court of Appeal upset the judgment of the trial Court and allowed the appeal. The Court said:
“…I agree entirely with the submissions of the learned SAN that estoppel was established upon the un-contradicted affidavit evidence before the Court.”
This appeal is against that judgment. Learned counsel for the Plaintiff/Appellant, filed the Appellant’s brief and a reply brief on 12/9/2005 and 21/12/2005.
Learned counsel for the Respondent filed the Respondent filed the Respondent’s brief on 10/11/2005.
Learned counsel for the appellant formulated four issues from his four grounds of appeal. They are:
“ISSUE 1
It is right for the Lower Court to decide the issue of the incompetence or otherwise of the Appellants NOTICE TO VARY on findings that are obviously in-correct and/or points that were never raised by the Respondent in the Lower Court and to take up the same Suo Motu and make findings thereon without hearing from the Appellant, the said finding being also a fresh issue in respect of which leave was not obtained by the Respondent in the Lower Court?
ISSUE 2
It is