CHIEF EMMANUEL EZE ONUWKA V. ENGR SAMUEL ONONUJU
In the Supreme Court of Nigeria
Friday, May 8, 2009
Case Number: SC. 246/2002
ALOYSIUS KATSINA-ALU, JUSTICE. SUPREME COURT
ALOMA M. MUKHTAR, JUSTICE. SUPREME COURT
WALTER S. N. ONNOGHEN , JUSTICE. SUPREME COURT
PIUS O. ADEREMI, JUSTICE. SUPREME COURT
CHRISTOPHER CHUKWUMA-ENEH, JUSTICE. SUPREME COURT
CHIEF EMMANUEL EZE ONUWKA
ENGINEER SAMUEL ONONUJU & ORS
- M. CHUKWUMA.ENEH, JSC. (Delivering the Leading Judgment)
This appeal is from the decision of the Court of Appeal, Enugu Division on a notice of appeal filed on 11/7/2002, in this matter. The Appellant (the Plaintiff) has instituted this action against the Respondents (the Defendants) in the High Court, Ihiala Judicial Division, Anambra State claiming inter alia as per the Amended Statement of. Claim as follows:
‘The Plaintiff for himself and on behalf of Umuezegwumpi Umuofor Community Enterprise otherwise called Umuezegwumpi Umuofor Community Development claims against the Defendants jointly and severally as follows:–
(a) A declaration that the Defendants are not the owners of and/or possessors or holders/ occupiers of the piece and parcel of land situated at Akabo Umuohi in Okija and which is described in the Customary Right of Occupancy granted to the Plaintiff on the 27th day of April, 1989 and Registered as No.1 at Page 1 in Volume 1274 at the Land Registry,Enugu.
(b) A further declaration that the Plaintiff for himself and on behalf of Umuezegwumpi Umuofor Community otherwise Umuezegwumpi Umuofor Community Development is the present holder and/or occupier of the said land.
(c) N250,000,00 (Two Hundred and Fifty Thousand Naira) damages against the Defendants jointly and severally for their acts of trespass on the said land.
(d) A perpetual injunction to restrain the Defendants, their servants, agents and/or privies from committing further acts of trespass on the land now in dispute.”
This action has been filed on 29/3/90 as Suit No. HIH/22/90.
Upon an Application filed for leave to discontinue the said action by the Plaintiff; the suit has been struck out on 26/8/98, during the courts annual vacation by the vacation Judge on the ground that the trial court has no longer any Original Jurisdiction to deal with land in dispute being subject to Customary Rights of Occupancy, This has arisen from the Supreme Courts decisions in Sadikwu v. Dalori (1996) 5 NWLR (Pt.447) and Oyediran v. Egbotola (1997) 5 NWLR (Pt 507), both decisions have ousted the original Jurisdiction of the High Court over lands subject to; Customary Rights of Occupancy – that is lands situate in rural areas.
The speed at which the matter has been preceded with before the trial court is simply electric. The Application to discontinue the suit has been filed on l8/8/98, within the vacation served on Defendants Counsel on 20/8/98, within the vacation, fixed for hearing on 26/8/98, within the vacation, finally heard and granted on 26/8/98. Sequel to striking out the suit, the Appellant has commenced by a Writ of Summons dated 28/8/98, an action substantially for the same reliefs against the Defendants/ Respondents in the Customary Court of the Ihiala Territorial limit. The suit has been mentioned on 2/9/98, fixed for hearing on 16/ 9/98 and final judgment in the matter has been given on 28/9/98. In a matter of one month and two days the matter has been done and concluded. One of the quickest proceedings!
By an Application filed 5/10/98, the Defendants have inter alia prayed the trial court to set aside its Ruling of 26/8/98, being null and void for not having been made in accordance with Order 26 Rule 9 of the High Court Rules of Anambra State; and relist the suit for hearing as the Ruling of26/8/98 is void ab initio being an Order having been made during the courts annual vacation when urgent matters only are entertained with the consent of the parties and particularly as the Plaintiffs Application upon which the Ruling is predicated does not require any urgency. The trial court has struck out the Application for want of Jurisdiction with cost of N1,000.00.
Aggrieved by the Orders of 26/8/98 and 21/112000, the Defendants/Respondents have appealed to the Court of Appeal (court below) which after hearing the appeal allowed it and set
aside the two Orders of 26/8/98 and 21/l/2000. The Plaintiff is the Appellant while the Defendants are the Respondents in this court. Further facts of this matter appear in the body of the judgment.
The Plaintiff, dissatisfied with the decision of the court below has appealed the matter to this court by a notice of appeal filed on 11/7/2002, containing 2 grounds of appeal, which has been enlarged to 9 grounds of appeal on the whole by a notice of additional grounds of appeal filed on 19/12/2002.
The parties have filed and exchanged their respective Briefs of Argument. The Plaintiff (Appellant) has distilled five Issues for Determination as follows:-
- Whether the court below was right in holding that Grounds 6, 7, 8 and 9 of grounds of appeal without particulars and issues drawn from competent grounds of appeal namely Grounds 3,4, and 5 are competent?
- Whether in determining the issue of competence of Grounds 6,7, 8 and 9 of the grounds of appeal based on want or absence of particulars, the court below was right in considering the objection on the basis of sustainability of the whole appeal by the presence of one competent ground of appeal?
- Whether the court below, was right in setting aside the Order of the trial court made on 26/ 8/98, on the ground that the Order was void having been made during vacation in a manner that does not warrant urgent attention within the meaning of Order 26 Rule 9(2) (b) and (c) of the Anambra State High Court Rules?
- Whether the court below was right in setting aside the trial court Order dated 21st day of January, 2000, on the ground that the Order was not made judicially and judiciously?
- Whether the court below was right in setting aside the trial courts Orders of 26/8/98, and 21/1/2000, when the Orders did not occasion a miscarriage of justice and no injustice was suffered by the Respondents?’
The Defendants have filed a joint Respondents Brief of Argument which they have adopted and relied upon at the oral hearing of the matter. The Defendants /Respondents have, on their part, raised four Issues for Determination as follows:
“1 Whether the court below was right in holding that the Appellants preliminary Objection was ‘baseless’ and consequently ‘ignored’ same?
- Whether the lower court was right in holding that the trial court lacked the requisite judicatory powers and jurisdiction to entertain the Appellants’ for discontinuance of the suit. during the statutory Annual Vacation Period, contrary to Order 26, Rule 9 (2) (c) of the High Court of Anambra State (Court Procedure) Rules 1988, and Sections 38 and 72(1)(d) of the High Court Laws?
- Whether the court below was right in setting aside the Order of the trial court made on 21st January, 2000, which sustained the earlier Order of the trial court during the Statutory Annual Vacation Period.
- Whether the lower court was right in holding that the trial court exercised its Jurisdiction illegally when it never had the Jurisdiction to so exercise?’
The Appellant vis-a-vis the Respondents Brief of Argument has filed a Reply Brief. I shall deal with it anon. The case of each side to this matter as per their respective Briefs Orders on the construction and meaning and Application of the Order 26 Rule 9(2)(b) and (c) of the Anambra State High Court Rules; and I shall deal with the same succinctly anon.
Firstly, arguing issues one and two together, the Appellant (Plaintiff)has submitted that under Order 3 Rule 2(2) of the Court of Appeal Rules, a ground of appeal On misdirection or error in law is incompetent without particulars although some grounds of appeal may have the particulars embodied or incorporated in them. Vide, Idaayor v. Jigidan (1995) 2 NWLR (Pt. 377) 359; Atuyele v. Ashamu(l987) I NWLR (Pt. 49) 267at 281-2; Koya v. UBA(1997) NWLR (pt 481); Nsirim v. Nsirim (1990) 3 NWLR (pt. 138); Hayes v. Hayes (2000) 3 NWLR (Pt. 648). In this regard, he submits that if the court below has examined the Plaintiffs challenge based on the correct principles and alongside the provisions of Order 3 Rule 2(2) of CAR, 2002 it could have discovered that Grounds 1, 2, 6, 7, 8 and 9 have no particulars and that as the respective particulars of errors are not in-built in them, they are therefore incompetent. The point has also been taken that issues have to be raised from competent grounds of appeal, and that issues raised from incompetent grounds of appeal or from both competent and incompetent grounds of appeal are incompetent and liable to be struck out. See Ugo v. Obiekwe (1989) 2 S.C. (Pt. II) 41; (1989) 1 NWLR (Pt. 99) 566 at 580; Amadi v. Orisakwe (1997) 7 NWLR (Pt. 511) 161 at 170; Brawal Shipping Co. v. Onwudike (2000) 11 NWLR (pt. 687)387 at 404. It is submitted that Ground 1, a valid ground has been argued with the incompetent ground 6 as Issue No.1 while the incompetent Grounds 2,3, and 9 have been argued together with Ground 1 as Issue No.2 and that Issue No.4 has been distilled from Grounds 4, 5, 8 and 9, an admixture of competent and incompetent grounds of appeal. He has therefore opined that the court below ought to have struck out the incompetent grounds and issues so distilled from them. Also that the same goes for all the issues raised by the Defendants excepting in Issue No.7, the only competent issue as conceded by the Defendants/Respondents in the appeal. On the issue of costs, it is submitted as having been raised not in compliance with the provision of Section 241 (2)(c) of the 1979 Constitution is liable to be stuck out. Furthermore, that the court, is enjoined to ensure that Issues for Determination distilled from incompetent grounds or from competent and incompetent grounds of appeal in circumstances where severance is not possible as here are liable to be struck out. He then has posited that the court below has proceeded on the mistaken basis that the Plaintiffs complaint is on the sustain ability or validity of the appeal qua appeal i.e by virtue of some competent grounds of appeal in the notice of appeal but that his complaint is questioning the validity of some grounds of appeal insufficient particulars and issues raised from competent and incompetent grounds of appeal; thus making the issues void. The court below, it is urged, ought to have struck out the appeal itself on this basis.
Issue 3 is on whether the court below is right in setting aside the Order of the trial court made on 26/8/98, on the ground that the Order is void having been made during vacation in a manner that does not warrant urgent attention within the meaning of Order 26 Rule 9(2)(b) and (c) of the Anambra State High Court Rules which has enjoined the court to hear only applications or causes with the parties consent or applications of urgent nature during the court’s annual vacation. He submits that upon the decisions of this court in Sadikwu v. Dalori (supra) and Oyediran v. Egbotola (supra), the Original Jurisdiction of the trial court i.e. Ihiala High Court in this instance has been ousted as the subject matter (i.e. the land in dispute) is situate in the rural area within the meaning of the Land Use and the Declaration of Urban Area Order of Anambra State and so is subject to Customary Rights of Occupancy. The Jurisdiction to deal with Customary Rights of Occupancy is vested in the Customary Court. And that albeit, the Appellant by an application has applied to discontinue the suit during the courts annual vacation .Although, the Defendants have been served the Plaintiffs application; they have not, however, appeared at the hearing of the Application; according to them the application cannot be heard or entertained without their concurrence under sub-rule (2)(b) Rule 9 of Order26 (ibid) or it has to come within the meaning of urgent matters as contemplated under Order 26 Rule 9(2)(c)of Rules (ibid) and that there is no urgency surrounding the application.
The Plaintiff contends that the application comes under Order 26 Rule 9(2)(c) and not Order 26 Rule 9(2)(c). The Plaintiffs case is that what has been in issue in the suit has been one of want of Original Jurisdiction of the trial court which requires timeous and expeditious dispatch in determining the same and upon which basis the trial court has rightly struck out the suit even moreso during the courts annual vacation. In support of this stance, the cases of Onyeama v. Opara (1987) 3 NWLR (Pt 60) 259; Attorney-General Lagos State v. Dosumu (1989) 3 NWLR (Pt. III), have been referred to and relied upon. It is contended that the decisions in Sadikwu and Oyediran have only come to the Appellants notice about 1998 hence, the immediate filing of the application for leave to discontinue the instant suit during the courts annual vacation. The Appellant has therefore argued that in the circumstances, he has acted timeously as the issue of lack of Jurisdiction of the trial court is an urgent factor that has intervened in the proceedings even though it is about 8 years since the matter has been pending; and even moreso considering the surrounding circumstances of this case. And that in any event the Plaintiff should not be visited with the negligence of his Counsel in dealing with this issue. See Attorney-General of the Federation v. AIC Ltd (1995) 2 NWLR (Pt.378). The Appellant has further contended that by setting aside the Order of 26/8/98, it would mean relisting without more the suit that has already been struck out and the continued pendency of the suit in the trial court to no benefit to either parties.
On issue 4, the Appellant has argued on whether the court below rightly has the power to set aside the Ruling of 21/1/2000, by Nwizu, J., refusing to set aside the Order of 26/8/98, by Nwankwo, J., upon which is predicated the application to discontinue the substantive suit for want of Original Jurisdiction in the trial court to deal with it.sequel to the decision of Sadikwus case by this court; the Appellant (Plaintiff) has contended that the interference with the – trial courts exercise of its discretion in striking out the suit by the court below is unfounded as it has not been showed to be manifestly wrong, arbitrary or
reckless or on any other ground; but that the Court below has to do so where the discretion has been exercised based on wrong principles or on misapplication of law or facts See: University of Lagos v. Aigoro (l985) 1 NWLR (Pt.143); University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.156); Ceekay Traders Ltd. v. General Motors (1992) 2 NWLR (Pt. 22) 1332 at 156 and Oyekanmi v. NEPA (2000) 12 S.C. (Pt. 1) 70; (2000) 15 NWLR (Pt. 609). It is further opined that where the Issue of Jurisdiction is the reason for discontinuance of an action as here, that the only option open to the court is one of striking out the suit which in this case has occasioned no injustice and that the court below has acted in error to have set aside the Ruling of 21/1/2000.
The court is urged to allow the appeal and set aside the decision of the court below.
The Defendants/Respondents have responded in their Brief to the Plaintiffs/ Appellants issues 1 and 2 to the effect that the Appellant has gotten mixed up in arguing on the one hand that the notice of appeal is incompetent for want of any competent ground of appeal contained therein and on the other hand that Grounds 3, 4 and 5 contained in the notice of appeal are competent grounds of appeal. The Defendants therefore submits that the court below ignoring the contradictory submissions has rightly found all the grounds of Appeal in the notice of appeal as competent.
The Appellant is charged with raising without leave an entirely new case from the one it has raised and argued in the lower court by contending here for the first time that Grounds 2, 6, 7, 8 and 9 are incompetent for having no or insufficient particulars as required by Order Rule 2(2) and (3) of the CAR, 2002 and as settled in the decisions of Adegoke Motors Ltd. v. Adesanya (1989) 5 S.C. 113;(1989) 3 NWLR (Pt. 109) 250; Agu v. lkewibe (1991) 4 S.C. 1; (1991) 3 NWLR (Pt. 180) 385; stool of Abinabina v. Engmadu 12 WACA 171; Kate Enterprises Ltd. v. Daewo Nig. Ltd. (1985) 2 NWLR (Pt.5) 116; Ejiofodom v. Okonkwo (1982) 11 S.C. 74; (1972) 11 S.C. (Reprint) 39 sand Ogboma v. Attorney-General lmo State (1992) 1 NWLR (Pt. 229) 647 and that the fresh issues raised without leave being incompetent, are liable to be struck out. See: Standard Printing And Publishing Co. Ltd. v. N.A.B. Ltd. (2003) FWLR (Pt. 137) 1097 at 1099. The Defendants have also challenged the Plaintiffs case on the Preliminary Objection as having been raised not by a formal notice of motion and furthermore for not having been raised in accordance with the mandatory provisions of Order 3 Rule 15 (1) of the CAR, 2002. See: Nsirim v. Nsirim (1990) 5 S.C. (Pt. II) 94; (1990) 5 SCNJ 174 at 182-180.
Issue 2 is on whether the trial court is without Jurisdiction to entertain the Appellants motion for discontinuance of the suit during the courts annual vacation as required under Order 26 Rule 9(2)(c) (ibid) and Sections 38 and 72(1)(d) of the High Court Law.
The Respondents (Defendants) have maintained that the discontinuance of Suit No.HIH/22/90, has not required the urgent action it has received by the trial court. In this regard,
they have adverted to Sections 38 and 72(1) (d) (ibid) and Order 26 Rule 9(2) (ibid) as having prescribed the conditions precedent for entertaining any cause or matter during the courts annual vacation; in other words, as constituting condition is precedent to the exercise of the trial courts Jurisdiction to entertain the instant Application and so make the Order of 26/8/98. See: Madukolu v. Nkemdilim (1962) 1 ANLR 587; Govt. of Akwa Ibom State v. Powercom Ltd. & Anor. (2005) FWLR (Pt. 246) 1353 at 1356. And as regards Order 26 Rule 9(2)(c) that the fact of urgency of the instant application has to be established as one of the conditions precedent for granting the application and that the date of the Plaintiff/Appellant becoming aware of the Sadikwus case is not a ground of urgency in the circumstances of the matter. They submit therefore that the Appellant has not made out a case of any urgency for applying during the courts annual vacation to discontinue this case.
On Issue 3 and 4 i.e. on whether the court below has rightly set aside the Order of 21/1/2000; the Defendants submit that the Order of 26/8/98, being an illegal Order that the trial court has by the Order of 21/1/2000, purported to sustain it and so has itself, rightly been set aside by the court below. They have argued that want of Jurisdiction in the trial court in this instance to deal with the suit has not the character of any urgency as to justify the application to discontinue the suit during the courts annual vacation and even moreso cannot be any basis to justify hearing this matter behind the Defendants/Respondents thus, violating their Rights to Fair Hearing as per Section 33 of the 1999 Constitution. See: Ikweki v. Ebele (2005) 2 S.C. (Pt. II) 96; (2005) AFWLR (Pt.257) 1401 at 1410, Saleh v. Egeibon (1994)6 NWLR (Pt.348) 23; Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909, UNTHMB v. Nnoli (1994) 8 NWLR (Pt.363) 376; Bamgboye v. University of Ilorin (1999) 6 S.C. (Pt. II) 72; (1999) 10 NWLR (Pt. 662) 290. And that the Defendants have rightly alleged denial of their fundamental rights to canvass for a dismissal of the suit; a right which the Order of 26/8/98, has denied them. They have therefore submitted that the trial court is wrong for refusing to set aside its decision of 26/8/98, as a void decision and offending the Plaintiffs constitutional rights and so that the Order of 21/1/2000, which has purported to sustain a void order is itself equally void as there is no substratum upon which to sustain the said Order of 21/1/2000.
The court is urged to dismiss the appeal and affirm the decision of the court below.
The Plaintiff/Appellant has in his Reply Brief of Argument more or less repeated the points dealt with in their main Brief of Argument particularly on the question of having urged contradictory submissions concerning the notice of appeal being invalid for want of any competent ground of appeal vis-a-vis the grounds 3, 4, and 5 are competent grounds as in the same notice of appeal; and the question of competent and incompetent issues having been raised from these grounds of appeal; also on the question of having raised no particulars or insufficient particulars to Grounds 2, 6, 7,8 and 9, which the Defendants/Respondents have tagged a new issue raised without leave and the question of non-compliance with the provisions of Order 3 Rule 15(1) of the CAR,2002. I need not detail these questions any further.
On urgency of the application, the Plaintiff/Appellant has relied on Order 26 Rule 9(2)(c) to contend that the Application has been rightly entertained during the courts annual vacation. He debunks the submission that the issue of urgency should only be determined from the age of the case and should not be based on the mistake or inadvertence as to the time the Plaintiff/Appellant
or his Counsel has become aware of the decision in Sadikwu. He argues that the issue of urgency can be a question of fact or law or both and so could be an issue of Jurisdiction as in this case where the trial court has rightly exercised its discretion to entertain the case during the courts vacation. He refers to and relies on paragraphs 5 and 6 of the Plaintiffs affidavit in support of the application on the issue of urgency and that as the suit has been pending for 8 years, it justifies urgent action as per the instant Order of 26/8/98, thus, to enable the Plaintiff to file a fresh suit in appropriate court to determine the rightful owner of the land in dispute as the decision in Sadikwus case has occasioned an inordinate delay again, thus, affecting the rights of the Plaintiff. He submits that the facts of urgency outlined herein do not admit of being termed a self induced urgency-.
On Issues 3 and 4: the Plaintiff has discussed Fair Hearing in the context of this matter and the courts duty to provide level playing ground for the parties in this case to ventilate their cases and that the court is not obliged to do more. He urges the court to allow the appeal and set aside the decision of the court below.
I think I should start discussing this matter from the standpoint of the Preliminary Objection raised by the Appellant as encompassed under issues I and 2 of his Brief of Argument. The issues are as set forth above. Just as they have been argued together in the said Brief they are taken together in this judgment. The Appellant has contended of a total misapprehension by the court below of his complaints in the appeal, which is not as regards the validity of the appeal qua appeal but as to the issue of the validity of some grounds of appeal i.e. Grounds 3, 4 and 5 otherwise competent grounds of appeal as against Grounds 2, 6, 7, and 9, otherwise incompetent grounds of appeal for having no particulars or insufficient particulars in their expatiation vis-a-vis the Issues for Determination distilled therefrom or from both competent and incompetent grounds thus, making the issue or Issues raised for Determination in the appeal void. The Respondents have submitted in this regard that the Appellant has shifted grounds in presenting his case as proffered in this court vis-a-vis his case in the court below. Hence, I have adverted to p. 82 of the record with particular reference to paragraph 4-2 of the Appellants Brief of Argument in the court below, wherein the Appellant has submitted thus:
‘I would like to argue that Grounds 1, 2, 6, 7, 8 and 9 of the notice and grounds of appeal are incompetent in that the notice of appeal has no grounds of appeal has no grounds of appeal as required by law. The appeal in those circumstances is defective and incompetent.’
There can be no misgivings as to the import of the foregoing abstract to the effect that the notice of appeal contains no valid ground of appeal as required by law. And so, the notice of appeal as decided in Global Trans. Oceanico S.A. v. Free Ent. (Nig.) Ltd. (2001) 2 S.C. 154, is defective for want of any competent and valid ground of appeal and ought to be struck out.
As if to compound the foregoing submission on the notice of appeal being incompetent for containing no competent and valid ground of appeal, the Appellant even more clearly at paragraph 4-4 of his brief at page 82 of the record has proceeded to submit in a most contradictory manner thus:
‘………….., the Defendants/Appellants in their first, second, third, forth, and fifth questions have mixed up the grounds of appeal both competent and incompetent with the Issues for Determination to the extent that it is not easy to differentiate which is now competent and which is not.’
The clear position of the notice of appeal in this matter on the Appellants submission above runs contrary to the Appellant concession that Grounds 3, 4 and 5 are competent. The Appellant has even then not stated the factors in validating the Respondents grounds of appeal. And the court should not speculate on that question.
There can be no doubt that the Appellants submissions in these respects are clumsy as he has seemed to approbate and reprobate on the issue of the notice of appeal and the fate of the appeal itself; in other words, the court below rightly found that the Appellant is blowing hot and cold at the same as clearly borne out by the above abstracts.
It must be remarked that the court is bound by the record of appeal the Appellant has not challenged it in any manner. In this case, the court, is bound to examine the state of the record on the conflicting claims as regards the Appellants assertions that he has raised and argued the question of no particulars or insufficient particulars to Grounds 2, 6, 7, 8 and 9. The Appellants claim in this regard after a thorough perusal of the instant record is ,not so borne out by the record, that is, to the effect that Grounds 1, 2, 6 ,7,8 and 9 have no or Insufficient particulars; this is not part of his case as per his Brief of Argument before the court below. However, it is trite that the Appellant is not allowed during the expatiation on some points in his Brief of Argument at the oral hearing of the appeal to wander out of his Brief or seize the opportunity to raise fresh issues based on new complaints not encompassed in his grounds of appeal. There is nowhere In the record that shows the Appellant as having taken any formal objection to the Respondents’ Grounds 1, 2,6,7,8 and 9 for or insufficient particulars of errors. The Appellant’s foregoing submissions therefore are totally, raised in vacuo and clearly a waste of the time of the court.
Furthermore, I agree with the Respondents that the Appellant not having complained against any of the grounds of appeal filed by the Respondents in the court below for having no particulars or insufficient particulars as required by Order 3 Rule 2(2) and (3) of the CAR,2002 cannot be allowed to do so at this stage of the proceedings In this court without leave of court being fresh issues on appeal. See: Araka v. Ejeagwu(2000) 12 S.C (Pt.I) 99. And so I make bold to say that the Appellant’s submission in this regard goes to no issue. It is trite that fresh issues or points thereby raised without leave as in the instant case are incompetent and ought to be struck out, moreso, as the court has no business dealing with such issues without its leave. See: Standard printing and publishing Co Ltd. v. N.A.B. Ltd. (2003) FWLR (Pt.137) 1097 at 1099 and Florence Olusanya v. Oloufemi Olusanya (1983) 1 SCNLR 134.
The circumstances of this case have showed that the Appellant has also failed to comply with the provisions of Order 3 Rule 15(1) of the CAR, 2002 – which deals with the requirements of raising Preliminary Objections. Although an objection can be set out in the Brief of Argument; it is also incumbent on the applicant as Appellant here to file a formal Notice of Preliminary objection stating the grounds thereof at least 3 days to the hearing of the appeal. And more importantly, it has to be moved otherwise it is
deemed waived. See: Nsirim v. Nsirim (supra), O.S.H.C. v. Ogunsola (2000) 14 NWLR (Pt.687) 431 at 440; Ariori & Ors. v. Elemo & Ors. (1993)1-3 S.C. 13 at 16-17. It must be emphasized that the Rules of Court in this regard as in other cases are meant to be obeyed. See Oforkire v. Maduike (2003) FWLR (Pt.147) 1090 and Fagbule v. Radeigues (2003) FWLR (Pt.137) 117 at 1173.
The Appellant has raised the instant Preliminary Objection in his Brief of Argument and so far as this step is to put the Respondent on due notice there can be no doubt that the requirement has been satisfied. See: Agbaka v. Amadi (1998) 7 S.C. (Pt. II) 18; (1998) 11 NWLR (Pt.572) 164 and Magit v. Uni. Agric. Makurdi (2005) 12 S.C. (Pt. I) 122; (2005) 19 NWLR (Pt.959) 211 at 238. And apart from giving Respondents three clear days the Appellant has contended he has moved the application and has relied on the proceedings at pg 89 of the record
(with him, Nkem Okoro,
and Uchenna Aghadiuno), for the Appellant.
- O. N. Ikeyi, for the Respondents