➥ CASE SUMMARY OF:
Effiong Asuquo Omon & Ors v. Rosemary Eyo Effiong Omon (2003) – CA
by PipAr Chima
➥ COURT:
Court of Appeal – CA/C/78/2001
➥ JUDGEMENT DELIVERED ON:
Thursday, the 10th day of April, 2003
➥ AREA(S) OF LAW
Motion ex parte;
Mode of commencement;
➥ NOTABLE DICTA
⦿
➥ LEAD JUDGEMENT DELIVERED BY:
Simeon Osuji Ekpe, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
O.E. Ekpong.
⦿ FOR THE RESPONDENT
Not represented.
➥ CASE HISTORY
The respondent herein as plaintiff in the court below initiated the proceedings against the defendants, now appellants leading to this appeal by motion ex parte filed on 19/3/2001, and prayed that court for the following: “1. An order restraining the 1st and 4th defendants from attempting to contract any form of marriage whether customary or English whilst the marriage between the plaintiff and the 1st defendant still subsists. 2. An order of interim injunction restraining the 2nd and 3rd defendants from arranging for any form of marriage between the 1st defendant and the 4th defendant or any other person without first of all, dissolving the earlier marriage between the plaintiff and the 1st defendant. 3. And for such further order(s) as this honourable court may (sic) deem fit to make in the circumstance.”
This is an appeal against the ruling of Effiong, J. delivered on 30/3/2001 at the Calabar Division of the High Court of Cross Rivers State in suit No. HC/MSC.52/2001, held as follows: “In this case, in which parties have made sound and lengthy arguments and oral evidence taken to resolve contradictions in affidavits, I hold that a prima facie case has been established against the 1st defendant and order that my order ex parte made on 27th March, 2001 stands. For avoidance of doubt, the defendant is prevented to contract any marriage until this action ends.”
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED]
I. Whether the lower court was right in dismissing defendants/appellants application challenging its jurisdiction, having regard to the manner of commencement of the suit leading to the appeal herein, & Whether the lower court was right when it declined to set aside the ex parte orders made on 27th of March, 2001?
RULING: IN APPELLANT’S FAVOUR.
A. From my close perusal of Order 1 rule 2 of the said High Court (Civil Procedure) Rules of Cross River State, there is no provision for commencing an action or proceedings by ex parte motion. Therefore, I am of the view that the respondent was in a grievous error by commencing the proceedings in this case by ex parte motion instead of by writ of summons as prescribed in Order 1 rule 2(1) of Cross River State High Court (Civil Procedure) Rules 1987. The action or proceedings thus commenced by ex parte motion in this case is incompetent. The error in so doing has occasioned a fundamental defect to the action or proceedings and not a mere irregularity which can be cured by Order 2 rule 1 of the self same High Court (Civil Procedure) Rules.
B. Accordingly, the proceedings in this case in the court below are a nullity and ought to be set aside having been wrongly initiated or commenced by ex parte motion.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
