The law is trite, that where an action as in this case was commenced by a procedure that is irregular, a party who took active part in the proceeding without raising a formal objection to the irregular procedure can not later be heard complaining and praying that the action be set aside on ground of irregularity which he himself had earlier acquiesced. See Saude V. Abdullahi (supra). However, in the present case, it is clear that it was the objection or complaint by the respondent, that triggered this appeal filed before the lower Court by the respondent.
ALFA V. AIDOKO ATTAI &
It is not in dispute and indeed the law is very well settled that a Court of law has a duty to dispense with all pending applications and/or processes before it, before reaching a final decision in a cause or matter. See: Akpan Vs Bob (2010) 17 NWLR (Pt.1223) 421; Mobil Oil Producing Nig. Unltd. Vs Monokpo (2003) 18 NWLR (Pt.852) 346; Irolo vs Uka (2002) 14 NWLR (Pt.786) 195 @ 225. Certainly the failure of a Court to do so, without a valid reason would amount to a violation of the right of the party not heard to fair hearing and as rightly submitted by Paul Erokoro, SAN, such violation would render the proceedings liable to be struck out.
Ordinarily, when an application or an appeal, as the case may be, is found to be incompetent for any reason, it cannot be dismissed, not having proceeded to hearing on merits. At best, it will be struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside, to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned.
I am, all the same, to observe pointedly even though briefly that where as in this instance an application as per suit No. C./Misc.68/98 has been struck out as constituting an abuse of process it goes without more that the said case has terminated; the bottom having been knocked off the case. And on the authorities of Amaefule v. State (1988) 2 NWLR (Pt.75) 156, (1988) 1 NSCC (vol. 19) 669 LL 3550; Woluchem v. Dr. Inko-Tariah(1974) ECSLR (vol. 4) 616;Registered Trustees of Ifeloju Friendly Union v. Kuku (1991) 5 NWLR (Pt. 189) 65 at 75 E-F; and A.M. Soetan v. Total Nig. Ltd.(1972) 1 SC 20, the court cannot, however much it tried, revive the matter which it has struck out save on the application of either of the parties.
Outside the above which is not yet tenable, there is no other reason why the lower Court refused the ex-parte application. In an application of this nature, the discretion of the trial judge normally comes into play. With all the documents exhibited in support of the ex-parte application without any reference made in their favour or against in the ruling of the learned trial judge, I am of the strong view that it is a discretion made in vaco and therefore can not pass the litmus test of judicious and judicial exercise of discretion and judicial exercise of discretion. In such a case, the Court of Appeal is justified to interfere. And I so do by holding that the Appellants exhibited sufficient documents to sponsor and support their application. As a result, it was wrong for the Court below to rule on the application without reference to the documents placed before it by the applicant. See ENEKEBE V. ENEKEBE (1964) NMLR 42 at 45, UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NSCC 88, BABATUNDE V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCY LTD. & ORS (2007) 4 SCNJ 140 and ODUBA V. SCLLP Aartonderneming Houtmangracht & Anors (1997) SCNJ 216.
To bring up an application for an Order of Mandamus, the party must first seek the leave of Court to file the application. The leave by motion exparte must be gotten and the motion for the Order of Mandamus must be filed within a period of three months from the date the cause of action accrue.
It is equally the Law that once an application is dismissed by this Court, an identical application can only be heard by this Court if the order of dismissal of the application is set aside. This is the decision that was handed down by this Court in PDP v. Asadu (supra) at page 222-223 paras H-B, where my brother Rhodes-Vivour JSC said:-
After an application which can only be granted at the discretion of the Court is dismissed, that ought to be the end of the matter, but this being the top Court an applicant should file an application seeking an order of Court setting the order of dismissal. Such an application calls on this Court to exercise its discretion in the inherent jurisdiction of this Court, this is so because the Order of this Court dismissing an identical application on 1/4/20116 still subsists.
None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.
Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169. PER EKANEM, J.C.A.
None of the motions had come up for hearing at the lower Court as at the time that it heard and ruled on the preliminary objections of the 1st and 2nd respondents. The law is well established that a Court has a duty to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. See Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182, 201, United Parcel Service Ltd v. Ufot (2006) All FWLR (Pt. 314) 337, 356, BCE Consulting Engineering v. NNPC (2019) 14 NWLR (Pt. 1691) 136, 175 and Newswatch Communication Ltd v.
Atta (2006) 12 NWLR (Pt. 993) 144, 168 – 169. PER EKANEM, J.C.A.
The popular adage is that you cannot place something on nothing and expect it to stand. See: Skenconsult Vs Ukey (1981) 1 SC 6; Madukolu Vs Nkemdilim (1962) 1 SCNLR 341; U.A.C Ltd vs Mcfoy (1961) 3 ALL ER 1169. The appeal filed by the appellants at the Court below against the judgment of the trial Court in ID/2595/92, was dismissed on 25/2/2008 under Order 8 Rule 18 of the Court of Appeal Rules, 2007, for failure to compile and transmit records. Order 8 Rule 20 of the said Rules provides: “20.
An appellant whose appeal has been dismissed under this rule may apply by notice of motion that the appeal be restored, and any such application may be made to the Court, who may in its discretion, for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C
Interpleader is a proceeding by which a person, who does not himself lay any claim to a property, debt, etc. can protect himself from legal proceedings by calling on the parties to interplead (i.e. claim against each other) so that title thereto may be determined. The procedure is applicable where the goods and/or chattels of a person not named in the writ of fifa are attached and that person comes forward to claim his property. See OBUMSELI v UWAKWE [2019] 11 NWLR (PT. 1683) 205 at 218, 222.
The objective of interpleader proceedings is to determine whether property or goods seized or intended to be seized by way of execution belongs to the judgment debtor [and therefore can be so seized] or to the claimant [and therefore cannot be seized]. Either the Sheriff or his deputy, or the claimant, may initiate an interpleader proceedings for the Judge to summarily determine the question at issue and make an order accordingly on such terms as may be just.
The Sheriff or his deputy who initiates an interpleader proceedings has no personal stake in the matter: he is merely required to present the summons before the Court, whilst the true parties are the claimant [who is asserting title to the attached property] and the judgment creditor at whose instance the property in dispute was attached. Thus, the claimant is the proper plaintiff, whilst the judgment creditor is the proper defendant.
Since the burden of proof generally lies on the party asserting the positive and it is he who would fail if no evidence were adduced on either side, the onus lies on the claimant to establish his title to the property in dispute, or where his claim is not absolute title, he must prove his precise interest in the property alleged to have been wrongly attached. See BARCLAYS BANK DCO v J. A. BADERINWA, IN RE L.E.D.B. (1962) ALL NLR 731 at 734, N.A.B. v ABDULLAHI [2000] 6 NWLR (PT. 662) 549, GABRIEL OLATUNDE v OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) LPELR–2575 (SC) and OBUMSELI v UWAKWE supra.
It would seem, however, that where the claimant was in possession of the property in issue at the time of its attachment, it would seem that the judgment creditor shall, in that case, be deemed a plaintiff and the burden of proof shall reverse accordingly. See KALA v POTISKUM (1998) 1-2 SC 132, (1998) LPELR-1648(SC) 1 at 25 (citing RABIU JINADU v BABAOYE (1966) 2 All N.L.R. 241 –per Taylor, CJ). PER AFFEN, J.C.A.