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MR. UMOH EBENEZER THOMPSON V. MR. CHRYSS ESSIEN
suit no: CA/C/12/2019
Legalpedia Electronic Citation: (2021) Legalpedia (CA) 18120.
Areas Of Law:
Action, Appeal, Court, Law Of Evidence, Practice And Procedure
Summary Of Facts:
The Appellant stated that sometime in early 2014 on two occasions at his residence, he lent N500, 000.00 and N360, 000.00 respectively to the Respondent and as security for the loan; the Respondent issued two postdated cheques to him dated 10/08/14 and 10/10/14. However, despite repeated demands, the Respondent has refused to repay the loan.
This the Respondent denied, stating that he issued the post-dated cheques to the Appellant when he engaged the services of the latter for drilling of boreholes and forgot to collect the cheques from the Appellant after he had paid N1, 800,000.00 into Appellant’s account and the Appellant never bothered to return the cheques.
Based on the above fact as stated by the Appellant, he commenced this action before the High Court of Akwa Ibom State, sitting at Mkpat Enin wherein he claimed against the Respondent for a declaration that the Respondent was indebted to the Appellant in the sum of N860,000.00 (Eight Hundred and Sixty Thousand Naira), interest and costs of the action.
The trial Court dismissed the claim of the Appellant and he immediately approached the Court of Appeal, Calabar Judicial Division by an initial Notice of Appeal containing only the omnibus Ground of Appeal but later got leave of Court to file additional Grounds of Appeal.
The amended Notice of Appeal contains four Grounds of Appeal.
HELD:
Appeal Dismissed
ISSUES FOR DETERMINATION
Ø Whether the Appellant proved that he lent N860,000.00 in two installments of N500,000.00 and N360,000.00 to the Respondent to be entitled to the declaration sought.
RATIONES
“It is the law that declaratory reliefs are only granted when credible evidence has been led by the person seeking the declaratory relief. The person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. A declaratory relief will not be granted even on admission by the defendant. See Anyaru v. Mandilas Ltd (2007)4 SCNJ 288 and Matanmi & Ors v. Dada & Anor (2013) LPELR 19929″. –PER J. S. ABIRIYI, J.C.A
“Learned counsel for the Appellant further contended that the Appellant was granted extension of time within which to appeal. In both Adili v. State and State v. Omoyele, the Supreme Court pointed out that under Section 4(3) of the Act the seven days period within which the prosecutor can appeal shall not be extended. In the circumstances, this court had no jurisdiction to extend time within which the Appellant shall appeal over two years after the acquittal and discharge of the Respondent. It is trite law that if a court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity no matter how well conducted and brilliantly decided. See Daplanlong v. Dariye (2007)8 NWLR (pt.1036)332. It is therefore not the correct position of the law as contended by learned counsel for the Appellant that the order granting the Appellant extension of time within which to appeal remains valid until set aside. The order granting extension of time to the Appellant within which to appeal is a nullity and remains a nullity. It is immaterial that learned counsel for the Respondent was in court when the application for extension of time was heard and purportedly granted without objection. –PER J. S. ABIRIYI, J.C.A
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