EMERGING MARKETS TELECOMMUNICATION SERVICES LTD v. AKHIGBE
(2020)LCN/14136(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, April 28, 2020
CA/A/846/2017
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
EMERGING MARKETS TELECOMMUNICATION SERVICES LTD APPELANT(S)
And
CHARLES AKHIGBE RESPONDENT(S)
RATIO
PRELIMINARY OBJECTIONS
I have observed that the ruling of 20-10-2017 appealed against is just one sentence, to wit, “The preliminary objection is incompetent and same is struck out”. The record of the proceedings of 20-10-2017 in the trial Court at pages 344 to 345 of the record of this appeal reads thusly-
“Obetta: The matter is slated today for ruling. We are ready.
Note: Ruling read in the open Court. The original hand written copy of the Ruling was given to the Court Clerk for typing and distribution to all parties and Counsel. The
Preliminary Objection is incompetent and same struck out.
Court: Case adjourned till 12th December, 2017 for hearing of the substantive matter.”
The original hand written copy as read in open Court and given to the Court Clerk to type and distribute to the parties is not in the record of this appeal. Only the one sentence ruling reproduced above is contained in the record of this appeal.
It is glaring that the issues raised for determination in this appeal cannot be determined in the basis of the terse decision that the appeal is incompetent and same is struck out and that the matter is adjourned for hearing. The complains in the grounds of this appeal are that the trial Court erred in law when it struck out the suit and assumed jurisdiction to try it (ground 1), that the trial Court erred in law when it held that the writ of summons and statement of claim attached to the affidavit in support of the preliminary objection, not being certified, the objection was incompetent (ground 2), that the trial Court breached the appellant’s right to fair hearing when it raised and decided the non-certification of the said processes suo moto (ground 3).
These complains cannot validly arise from the terse ruling that “The preliminary objection is incompetent and same is struck out”. The decisions complained against in the grounds of this appeal are not contained in the above quoted terse ruling.
As it is, the incompleteness of the record of this appeal has rendered the determination of this appeal impossible.
It is hereby struck out.
The appellant shalpay the sum of N300,000.00 costs to the respondent. PER AGIM, J.C.A
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/846/2017 was commenced on 3-11-2017 when the appellant herein filed a notice of appeal against the ruling of the Federal High Court in Suit No. FHC/ABJ/CS/336/2016 delivered on 20-10-2017 by B.O. Quadri J. The notice of appeal contains one ground of appeal. With leave of this Court granted on 19-2-2020, the notice of appeal was amended. The amended notice of appeal contains 3 grounds of appeal.
Both sides have filed their respective briefs as follows- Appellant’s brief and respondent’s brief.
The appellant’s brief raised the following issues for determination-
1. Whether the lower Court was right when it struck out the Appellant’s Preliminary Objection dated 10 June 2016 challenging the lower Court’s jurisdiction to hear the Respondents action which is for damages for breach of contract? (Distilled from Grounds 1 and 2 of the Notice of Appeal)
2. Whether the lower Court was right when it raised the issue of the inadmissibility of Exhibit EMTS-1 suo motu in its ruling without affording the parties the opportunity of
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addressing it on the point? (Distilled from Ground 3 of the Notice of Appeal)
The respondent’s brief raised the following issues for determination-
1. Whether by the combined effect of Section 251 (1)(s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Section 138 of the Nigerian Communications Act, 2003 the lower Court has jurisdiction to hear and determine the Respondent’s suit?
2. Whether the lower Court was right when it raised the issue of admissibility of EXHIBIT EMTS1 (an issue of law) suo motu and decided same without hearing any of the parties?
I have observed that the ruling of 20-10-2017 appealed against is just one sentence, to wit, “The preliminary objection is incompetent and same is struck out”. The record of the proceedings of 20-10-2017 in the trial Court at pages 344 to 345 of the record of this appeal reads thusly-
“Obetta: The matter is slated today for ruling. We are ready.
Note: Ruling read in the open Court. The original hand written copy of the Ruling was given to the Court Clerk for typing and distribution to all parties and Counsel. The
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Preliminary Objection is incompetent and same struck out.
Court: Case adjourned till 12th December, 2017 for hearing of the substantive matter.”
The original hand written copy as read in open Court and given to the Court Clerk to type and distribute to the parties is not in the record of this appeal. Only the one sentence ruling reproduced above is contained in the record of this appeal.
It is glaring that the issues raised for determination in this appeal cannot be determined in the basis of the terse decision that the appeal is incompetent and same is struck out and that the matter is adjourned for hearing. The complains in the grounds of this appeal are that the trial Court erred in law when it struck out the suit and assumed jurisdiction to try it (ground 1), that the trial Court erred in law when it held that the writ of summons and statement of claim attached to the affidavit in support of the preliminary objection, not being certified, the objection was incompetent (ground 2), that the trial Court breached the appellant’s right to fair hearing when it raised and decided the non-certification of the said processes suo moto (ground 3).
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These complains cannot validly arise from the terse ruling that “The preliminary objection is incompetent and same is struck out”. The decisions complained against in the grounds of this appeal are not contained in the above quoted terse ruling.
As it is, the incompleteness of the record of this appeal has rendered the determination of this appeal impossible.
It is hereby struck out.
The appellant shall pay the sum of N300,000.00 costs to the respondent.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim JCA, just delivered.
I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
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Appearances:
Christabel Ndeokwelu, Esq. For Appellant(s)
H.E. Leonard, Esq. For Respondent(s)
