ONABIYI & ORS v. I.O.N PETROLEUM LIMITED

The Appellants having obtained judgment proceeded and levied execution of the judgment on 2nd February 2000. Upon execution being levied, the Respondent on 3rd February 2000 filed an application at the lower Court for, inter alia, an order setting aside the judgment upon the ground that it was not served with Court processes in the matter.
The said application is at pages 15-18 of the Records. The application is supported by a twelve paragraph affidavit and a twenty-seven paragraph Reply to Counter Affidavit. In opposing the application, the Appellants filed a twenty-six paragraph counter affidavit and an eight-paragraph further counter affidavit. Upon the application coming up for hearing on 17th February 2000 the lower Court took the view that the affidavits filed by the parties were irreconcilably in conflict and ordered the parties to adduce oral evidence to support their depositions. (See page 34 of the Records). The Appellants being dissatisfied with this order appealed against the same on 23rd February 2000. The Notice of Appeal is at pages 35-37 of the Records.
In keeping with the stipulations of the Court of Appeal Rules, the Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged by the parties. The extant briefs on which the appeal was argued are the Appellants Amended Brief of Argument filed on 8th September 2015 and the Amended Respondent’s Brief of Argument filed on 25th February 2011 but deemed as properly filed on 6th February 2017. At the hearing of the appeal, the Respondent and its counsel were absent. However, upon being satisfied that hearing notice was served on the Respondent, the Court treated the appeal as having been argued pursuant to the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
A sole issue is distilled for determination in the Appellants Amended Brief of Argument, namely:
Whether it is necessary to call oral evidence to resolve any conflicts (if any) in the affidavit for and against the motion of the Defendant dated 3/2/2000 when it is evidently clear on the face of the motion paper that same was incompetent having been filed after 6 days of the delivery of the judgement of 10/12/99 contrary to the provisions of Order 33 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules,1994.
The Respondent equally distilled a sole issue for determination in the Amended Respondent’s Brief as follows:
Whether the Learned trial judge was right in holding that there were irreconcilable conflicts in the affidavits of the parties herein regarding the Respondent’s motion of 3/2/2000 which could only be resolved by calling oral evidence before listening to arguments of counsel on the said Motion.

The issues formulated by the parties are the same in their true purport and essence. I will therefore resolve this appeal based on the issues formulated by the Appellants.
ISSUE FOR DETERMINATION

…………………….B…………………….