FIRST INLAND BANK PLC. V. ALLIANCE INTERNATIONAL NIGERIA LTD. & ANOR
(2013)LCN/5863(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of January, 2013
RATIO
THE CORRECT PROCEDURE WHERE A RESPONDENT HAS RAISED A PRELIMINARY OBJECTION IN A BRIEF OF ARGUMENT
The correct procedure where a respondent or any party to an appeal has raised and argued a preliminary objection in the brief of argument is for that party to move the objection orally in court and where he fails to do so, the objection must be treated as abandoned. See the cases of ALI-UCHA V. ELECHI (2012) 3 MJSC (PT. II) 1; A.G. RIVERS STATE V. UDE (2006) 7 NWLR (PT. 1008) 436. It follows from this position of the law that the preliminary objection of the respondents which was not moved was abandoned and it is so regarded in this instant appeal. PER AKEJU, J.C.A.
THE PURPOSE OF AN APPEAL
It must be stated that an appeal does not constitute a new action, it is rather in the nature of a rehearing of the same action that had been commenced and adjudicated upon by the lower court, the record of which is compiled and transmitted to the appellate court. The record of appeal therefore binds both the appellate court and the parties to the appeal. The court does not possess the jurisdiction to go out side the record of appeal to make findings or draw conclusions. See OLUFEAGBA V. ABDUR-RAHEEM (2010) ALL FWLR (PT. 512) 1024: EGHAREVBA V. OSAGIE (2010) ALL FWLR (PT. 513) 255; FUBARA V. MINIMAH (2003) 5 SCNJ 142; GARUBA V. OMOKHODION (2011) VOL. 6 (PT. 111) MJSC 122. PER AKEJU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF A COURT
It is correct in law as argued by the appellant’s Counsel in his first issue that jurisdiction is fundamental and crucial to adjudication and a trial conducted without jurisdiction is a futile exercise, and for this reason of its significance, the issue of jurisdiction when properly raised, should be settled before going into other matters. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ODIASE V. AGBO (1972) 1 ALL NLR (PT. 1) 1790; OLORIODE V. OYEBI (1984) 1 SCNLR 390; HOPE DEMOCRATIC PARTY (HDP) V. OBI (2011) VOL. 12 MJSC (SPECIAL EDITION) 67. PER AKEJU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
The concept of fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 is founded upon the twin pillars of the natural justice rule of fairness that is; (a) that in any trial or adjudication, the parties must be given equal opportunity of being heard (audi alteram partan) and (b) that no one shall be a judge in his own cause or in one in which his interest is involved (nemo judex in causa sua). The breach or otherwise of the right to fair hearing is a question of whether opportunity of being heard had been granted to the parties. It is a matter of the procedure followed and not the correctness of the courts’ decision. See FBN PLC V. TSA IND. LTD. (2010) 15 NWLR (PT. 1216) 247; AWONIYI V. THE REGISTERED TRUSTEES OF THE ROSCICRUCIAN ORDER, AMORC (2000) 6 SC (PT. 1) 103; MOHAMMED V. OLAWUMI (1990) 2 NWLR (PT. 133) 458. PER AKEJU, J.C.A.
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The respondents herein were the plaintiffs in suit No. FHC/L/CS/122/2000 commenced through the Writ of Summons filed with Statement of Claim at the Lagos Division of the Federal High Court on 8th February, 2000, and subsequently amended through the amended writ of summons and further amended statement of claim filed on 11th August, 2006. By paragraph 37 of the said further amended statement of claim the plaintiffs had claimed thus;
“37. (a) WHEREOF the Plaintiffs claim against the Defendant, the sum of U$876,100 (Eight Hundred and Seventy Six Thousand One Hundred United States Dollars) being a refundable cash collateral deposited by the Plaintiffs with the Defendant for the confirmation of 4 letters of credits in favour of Manufacturers Hanover or Trust Company of London in July 1986 and which sum the Defendant, despite its promises in 1995/96 has failed, refused or neglected to refund despite repeated demands.
(b) The Plaintiffs further claim interest on the said amount at the Central Bank of Nigeria rate (i.e. 21% per annum) with effect from July, 1986 till the date of judgment and thereafter at the rate of 6% per annum until the amount is fully and finally liquidated”.
The appellant as defendant filed statement of defence of 23 paragraphs on 18/12/2000 and amended statement of defence on 8/2/2007. Hearing of the suit had commenced before two learned Judges who could not complete the hearing due to their transfer, and it was eventually assigned to Hon. Justice P. F. Olayiwola, who commenced trial denovo before he was also transferred to Awka Judicial Division of the Federal High Court at a stage when the plaintiffs’ first witness (PW1) had concluded his evidence in Chief and was to be cross examined, and at the instance of the plaintiffs and concurrence of the defendant, the suit was transferred to Awka Judicial Division for continuation of hearing by Hon. Justice Olayiwola. Hearing then continued in the presence of the parties’ counsel with the Plaintiffs calling one more witness and closed their case on 27th January, 2009. The suit was adjourned to 24th February, 2009 for further hearing which unarguably was for the defence to commence.
Meanwhile on 19th February, 2009 the defendant filed a Notice of Preliminary Objection Under Order 25 Rules 2 and 3 of the Federal High Court Civil Procedure Rules 2000 as follows:-
“TAKE NOTICE THAT THE Defendant herein doth hereby raise an objection that this Honourable Court does not POSSESS THE JURISDICTION to continue and or conclude the trial of this action, on the ground that the plaintiffs claim is STATUTE BARRED.
And take further notice that upon hearing of this preliminary objection, the applicant shall seek, an order dismissing the plaintiffs entire claim”.
When the Suit came up in court on 24th February, 2009, the proceedings as captured on page 95 of the record of appeal is as follows:-
“O. A. EGWATU ESQ for plaintiff.
R. O. NWOSU ESQ for defendant.
MR. NWOSU: We have a Motion on Notice on matter being statute barred.
EGWATU: We have finished plaintiff’s case. Let them put it in their Defence or adopt our case and argue the point of law.
COURT: Since plaintiff has closed its case there are two options for MR. NWOSU, make this point of law your sole defence whereby You Adopted the plaintiff’s facts and put it as one of the Defence whilst calling evidence.
MR. NWOSU: We would put in our defence, ask for adjournment.
MR. EGWUATU: Not opposing.
COURT: Matter adjourned to 26/3/2009 for the defence to open its case”.
Before the 26th March 2009 agreed for the defence to open its case as stated in the above record, the defendant filed a NOTICE OF APPEAL on 6/3/2009 raising three grounds of appeal, and in pursuance of the appeal, the defendant (now hereinafter called the appellant) filed the Appellant’s Brief of Argument on 29/10/2010 with the following issues formulated for determination of the appeal.
1. Whether in the light of the Appellant’s Preliminary Objection dated the 19th day of February 2009, the court below was right in continuing with the hearing and trial of the matter before his Lordship without first determining whether it had Jurisdiction to entertain the cause.
2. Whether the court below was right when His Lordship denied the Appellant of its constitutional right to a fair hearing and refused or failed to hear and determine the Appellant’s Preliminary Objection dated 19th day of February, 2009 which was properly before his Lordship.
3. Whether the court below was right when His Lordship set the cause down for continuation of trial instead of determining the preliminary issue that was capable of disposing of the entire action.
The learned Counsel for the appellant, Chike Okosa who prepared the brief of Argument rendered arguments on each of the issues.
On the first issue, it was contended that the substance of the preliminary objection was to challenge the competence and jurisdiction of the trial court to proceed with the trial of the suit. On when a court is competent to hear an action before it, the case of ROSEK V. ACB LTD (1993) 8 NWLR (PT. 312) 382 was cited. It was submitted that where the law requires an action to be initiated within a prescribed period, any proceedings commenced or initiated outside the period cannot give rise to a cause of action and the court may not have jurisdiction to adjudicate, citing IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE (1998) 14 NWLR (PT. 584) 1: DAEWOO NIGERIA LTD. V. UZOH (2008) ALL FWLR (PT.399) 456.
The learned Counsel contended that the trial court was in error when it set the suit down for continuation of trial without first ascertaining that it had jurisdiction to hear the cause, and submitted that jurisdiction is quite significant in adjudication and must be determined first, citing the cases of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688: JERIC NIGERIA LTD V. UNION BANK OF NIGERIA PLC (2001) FWLR (PT. 31) 2913: GALADIMA V. TAMBA (2000) 11 NWLR (PT. 677) 1: 7UP BOTTLING COMPANY LTD V. ABIOLA & SONS BOTTLING CO. LTD (2001) FWLR (PT. 70) 1611: OLUTOLA V. UNIVERSITY OF ILORIN (2004) 18 NWLR (PT. 905) 417 and ANSA V. REGISTERED TRUSTEES OF PRESBYTERIAN CHURCH OF NIGERIA (2008) All FWLR (PT.405) 1681.
On the second issue, it was submitted that the court had a duty to entertain and adjudicate on the preliminary objection of the appellant not withstanding any weakness in the application, citing KOTOYE V. SARAKI (1991) 8 NWLR (PT.211) 638; ANI V. NNA (1996) 4 NWLR (PT. 440) 101. It was contended also that failure or refusal by the trial court to hear and determine the preliminary objection was a breach of duty by the trial court and the appellant was thereby denied the right to fair hearing. The cases of NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT.212) 652; MOBIL PRODUCING NIGERIA UNLTD. V. MONOKPO (2003) 18 NWLR (PT. 852) 346, and ENEBELI V. CENTRAL BANK OF NIGERIA (2005) ALL FWLR (PT. 287) 988 were cited as authorities for this submission.
The contention of the learned Counsel on the third issue is that the respondents’ claim was statute barred and as such cannot give rise to a cause of action. He cited the cases of EGBE V. ADEFARASIN (1985) 1 NWLR (PT. 3) 549; LAMINA V. IKEJA LOCAL GOVERNMENT (1993) 8 NWLR (PT. 314) 758. It was contended also that it was not right for the learned trial judge to have insisted on continuing with the trial of the action and taking evidence in view of the preliminary objection the determination of which could dispose the entire action, citing ADIGUN V. AYINDE (1993) 8 NWLR (PT.313) 516.
The respondents filed the Plaintiffs/Respondents’ Brief of Argument on 24th November, 2010, and the learned Counsel, Obiora Atuegwu Egwuatu Esq. who authored the brief adopted and argued the above three issues distilled by the appellant’s learned Counsel.
In response to the first issue, it was contended that though jurisdiction is always fundamental, it is not mandatory for court to abandon every other thing in the matter once it is raised. It was submitted that the issue of jurisdiction can be taken in the course of proceedings in the substantive action and an aggrieved party can appeal on both the issue of jurisdiction and the judgment on its merit, thereby avoiding delay usually caused by interlocutory appeals. The cases of PDP V. ABUBAKAR (2007) NWLR (PT. 1018) 303: AMADI V. NNPC (2000) 10 NWLR (PT. 674) 76: TUKUR V. GOVERNMENT OF GONGOLA STATE (1988) 1 NWLR (PT. 68) 39 were cited in support. The learned Counsel referred to portions of the decisions in the cases of AMADI V. NNPC (supra): UMEADI V. ATTORNEY-GENERAL ANAMBRA STATE (2008) 9 (PT. 1091) 175: and INTERNATIONAL AGRICULTURAL INDUSTRIES (NIG) LTD V. CHIKA BRO’S LTD. (1990) 1 NWLR (PT. 124) 70 on the need to reduce or avoid the waste of precious judicial time through unnecessary preliminary objections and interlocutory appeals.
The learned Counsel submitted further that the learned trial judge did not fail or refuse to determine the preliminary objection, but merely exercised a discretionary power to take the objection with the substantive suit, and where the trial court has lawfully exercised its discretion the appellate court will not readily interfere, citing OLADEJO V. ADEYEMI (2000) 3 NWLR (PT. 647) 25: UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (PT. 1) 143: SENATE PRESIDENT V. NZERIBE (2004) 9 NWLR (PT. 878) 251: INAKOJU V. ADELEKE (2007) 1 SC 1.
On the materiality of the stage of the proceedings at which the appellant raised its objection, the respondents contended that though jurisdiction can be raised at any stage of the proceedings, or even on appeal, a court is entitled to take the issue with the substantive suit but determine same first in its final judgment, reliance was placed on OJUKWU V. ONYEADOR (1991) 7 NWLR (PT. 203) 286: and GLOBE FISHING INDUSTRIES LTD. V. COKER (1990) 7 NWLR (PT. 162) 265.
According to Counsel, provisions have been made in Order 25 and Order 38 Rules 15(1) (2) and 16 of the Federal High Court Rules, 2000 for the procedure or steps a defendant who has raised a point of law in his pleadings may follow. The proper stage to raise a preliminary objection to a plaintiff’s case should be at the inception or early stage of the proceedings in line with Carlen Nig. Ltd v. Unijos (1994) 1 NWLR (PT.323) 631.
On the second issue, it was argued that the appellant’s notice of preliminary objection was not fixed for hearing on 24/2/2009, it was the suit that was for defence and the appellants’ Counsel sought an adjournment to bring his witness to court. While conceding that a court has no discretion to ignore a process duly brought before it, the learned Counsel contended that in the instant case the trial court did not refuse to take the appellant’s application. It was submitted with reliance on MOBIL PRODUCING (NIG) LTD V. MONOKPO (supra): NITEL PLC V. MAYAKI (2007) 4 NWLR (PT. 1023) 173 and IBATOR V. BARAKURO (2007) 9 NWLR (PT.1040) 475 that the duty owed by the court is to determine any pending application in a suit before finally determining the suit, and in the instant case the court has not failed in that duty.
The learned Counsel submitted that after consenting to the procedure at the trial court, the appellant cannot be heard to complain that its right to fair hearing has been breached or denied, the test being an objective one based on the opinion of a reasonable person who has observed the proceedings.
The respondents contended that the third issue has not been borne out by the record of appeal in that it is not contained therein that the learned trial judge insisted on continuing with the trial of the action or set same down for continuation. It was submitted that such an issue that is not supported by evidenced by the record must be discountenanced, citing MAERSK LINE V. ADDIDE INVESTMENT LTD (2001) 1 NWLR (PT. 694) 405. It was submitted also that the procedure adopted or suggested by the learned trial judge was neither unconstitutional nor a nullity and the appellant who consented and has not shown any miscarriage of justice that has been occasioned cannot complain on appeal against the continuation of trial of the case, citing IPINLAIYE II V. OLUKOTUN (1996) 6 NWLR (PT. 453) 148.
The learned Counsel commended the cases of ARAKA V. EGBUE (2003) 17 NWLR (PT. 848) 1 and NEWSWATCH COMMUNICATIONS LIMITED V. ATTAH (2000) 4 SC (PT. II) 114 to us and urged that the appeal be dismissed.
Before delving into the consideration of the issues raised and argued by the parties, it is pertinent to state that on 28/4/2009, the respondents filed Notice of Intention to rely upon a preliminary objection in this appeal pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007, and arguments in respect of the objection are on pages 4 – 11 of the Plaintiffs/Respondents Brief of Argument.
The grounds upon which the objection has been based are that there has not been any appealable decision by the trial court, and the appellant failed to obtain the necessary leave of either the trial court or this court to file and prosecute this interlocutory appeal which according to learned counsel has raised grounds of mixed law and facts.
The Appellants’ Reply Brief filed on 5th January, 2011 is essentially a reaction to the issues raised in the preliminary objection.
At the hearing of this appeal on 1st November, 2012, the learned counsel for the appellant was absent, and this court having been fully satisfied that Counsel had adequate notice of the hearing invoked the provisions of Order 18 Rule 9 (4) of the Court of Appeal Rules 2011 and deemed the appeal as having been argued since briefs had been filed and exchanged. The respondents were represented by Emeka Ngige Esq., Senior Advocate of Nigeria who merely adopted the Respondent’s Brief of Argument and urged that the appeal be dismissed without any allusion to the preliminary objection. In other words the senior counsel did not orally argue the objection and did not even seek leave of court to do so.
The correct procedure where a respondent or any party to an appeal has raised and argued a preliminary objection in the brief of argument is for that party to move the objection orally in court and where he fails to do so, the objection must be treated as abandoned. See the cases of ALI-UCHA V. ELECHI (2012) 3 MJSC (PT. II) 1; A.G. RIVERS STATE V. UDE (2006) 7 NWLR (PT. 1008) 436. It follows from this position of the law that the preliminary objection of the respondents which was not moved was abandoned and it is so regarded in this instant appeal.
The basis for this interlocutory appeal is the proceedings of the Federal High Court, Awka (hereinafter called the trial court) on 24th February, 2009 in respect of Suit No. FHC/L/CS/122/2000. The proceedings as recorded on page 95 of the record of appeal is quite brief, and since I had earlier on reproduced it in this judgment, I find it unnecessary to repeat same here.
It must be stated that an appeal does not constitute a new action, it is rather in the nature of a rehearing of the same action that had been commenced and adjudicated upon by the lower court, the record of which is compiled and transmitted to the appellate court. The record of appeal therefore binds both the appellate court and the parties to the appeal. The court does not possess the jurisdiction to go out side the record of appeal to make findings or draw conclusions. See OLUFEAGBA V. ABDUR-RAHEEM (2010) ALL FWLR (PT. 512) 1024: EGHAREVBA V. OSAGIE (2010) ALL FWLR (PT. 513) 255; FUBARA V. MINIMAH (2003) 5 SCNJ 142; GARUBA V. OMOKHODION (2011) VOL. 6 (PT. 111) MJSC 122.
The content of page 95 of the record of this appeal being quite clear and plain does not require any extra mile to understand. The brief summary is that the parties were represented by their respective learned counsel, the defence counsel introduced the application, a notice of “preliminary” objection filed on 19/2/09, and after listening to the plaintiff’s counsel, the learned trial judge as the dominus litis explained some options available to the defendant in respect of the application at the stage the proceedings had reached, and upon acceptance by the defence counsel, the learned trial judge adjourned proceedings as sought by the defence counsel.
Let me state here for emphasis that the processes originating the suit at the trial court were filed in the year 2000 as subsequently amended. The trial of the action commenced on 2nd November, 2006 and the (plaintiffs) respondents called two witnesses and closed their case on 27/1/2009. The learned defence counsel who filed the amended statement of defence on 8/2/2007 and participated fully at the hearing of the suit did not raise any “preliminary” objection until 19/2/2009.
Although the (defendant) appellant had in the amended statement of defence filed on 8/2/07 at pages 63-68 of the record of appeal stated in paragraph 22 that “the Defendant shall contend that the plaintiff’s claim, even against the MHT is a statute barred debt, and not enforceable in the Nigerian courts . . .”, the appellant whose Counsel participated elaborately at the trial did not raise any such issue until the close of the respondents’ case, when on 19/2/09 (page 69 of the record), the appellant filed a “Notice of Preliminary Objection” that “this Honourable Court does not POSSESS THE JURISDICTION to continue and to conclude the Trial of this Action on the ground that the plaintiff’s claim is STATUTE BARRED”. No facts or particulars were set out in support of the objection.
In this appeal three issues have been formulated by the appellant, adopted by the respondent and argued by the parties.
It is correct in law as argued by the appellant’s Counsel in his first issue that jurisdiction is fundamental and crucial to adjudication and a trial conducted without jurisdiction is a futile exercise, and for this reason of its significance, the issue of jurisdiction when properly raised, should be settled before going into other matters. See MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ODIASE V. AGBO (1972) 1 ALL NLR (PT. 1) 1790; OLORIODE V. OYEBI (1984) 1 SCNLR 390; HOPE DEMOCRATIC PARTY (HDP) V. OBI (2011) VOL. 12 MJSC (SPECIAL EDITION) 67.
The contention of the learned counsel for the appellant on the first issue however is that the learned trial judge was wrong in continuing with the hearing of the suit without first ascertaining whether it had jurisdiction to hear the cause. Upon a calm study of the record of appeal as I had earlier pointed out, it is clear that the learned trial judge adjourned the suit after the appellants’ Counsel who agreed with the court had sought an adjournment to call evidence.
The contention of the appellant in this first issue having not been supported by the record of appeal is resolved against the appellant.
On the second issue, it is also noted from the record of appeal that the appellants’ notice of objection which was filed on 19th February, 2009 came up in court on 24/2/2009 ostensibly the earliest opportunity that was available to the court.
Indeed the learned trial judge obviously had a duty to ensure the proper management and control of a case that had been in that court for about 9 years prior to the filing of the appellants’/applicants’ application. Considering the age of the case and the fact that the respondents had concluded their case, I find the position as stated by the learned trial judge to be in line with Order 29(4) of the Federal High Court Rules, 2009, that;
“An application under this Order shall:
(a) be made within twenty one days after the service on the defendant of the originating process …”
The decision of the Supreme Court in WOHEREM V. EMERUWA (2004) ALL FWLR (PT. 221) 1570 at 1584 goes to confirm that a matter which is raised by way of a preliminary point but which may be answered if evidence is adduced cannot be properly raised as a preliminary objection, but is more properly answered by evidence during the trial at which it shall constitute an issue for determination. The law of limitation of action recognizes some exceptions and as such it may sometimes require the calling of evidence to establish it.
The appellant has on this issue complained that its constitutional right to a fair hearing has been denied by the court’s failure to hear and determine the preliminary objection. The law is that it is the party alleging breach of right to fair hearing that has the onus of proving that allegation based on the facts of the case. See MAIKYO V. ITOLO (2007) NWLR (PT. 1034) 443.
The concept of fair hearing enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 is founded upon the twin pillars of the natural justice rule of fairness that is; (a) that in any trial or adjudication, the parties must be given equal opportunity of being heard (audi alteram partan) and (b) that no one shall be a judge in his own cause or in one in which his interest is involved (nemo judex in causa sua).
The breach or otherwise of the right to fair hearing is a question of whether opportunity of being heard had been granted to the parties. It is a matter of the procedure followed and not the correctness of the courts’ decision. See FBN PLC V. TSA IND. LTD. (2010) 15 NWLR (PT. 1216) 247; AWONIYI V. THE REGISTERED TRUSTEES OF THE ROSCICRUCIAN ORDER, AMORC (2000) 6 SC (PT. 1) 103; MOHAMMED V. OLAWUMI (1990) 2 NWLR (PT. 133) 458.
It is gleaned from the record of the instant appeal that all parties had been heard before the learned trial judge adjourned the proceedings at the instance of the appellants’ Counsel.
This issue lacks substance and it is resolved against the appellant.
The third issue as argued by the appellants’ Counsel is that the learned trial judge insisted on continuing with the hearing of the case and taking evidence.
It is clear from the pleadings that the appellant had made the issue of limitation of action a defence but waited till the conclusion of the plaintiff’s evidence before raising that issue. The appellant had, by its application attempted to test the waters by the application of 19/2/2009, or to put in the defence by installments which the learned trial judge, in the management of this 9 year old case was duty bound to prevent so as to prevent the further waste of the precious judicial time of the court.
The argument of appellants’ Counsel that the respondents’ claim is statute barred is clearly unfounded in this appeal when no such pronouncement or decision has been made by the trial court. The jurisdiction of this court as an appellate court is statutory, based on the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 establishing it and other enabling laws. See ADELEKAN V. ECULINE NV (2006) ALL FWLR (PT. 321) 1213. This court is empowered by Section 240 of the said Constitution to hear and determine appeals from decisions of the courts named in Section 241 thereof and not on issues yet to be decided.
The difference between this issue and the first issue is similar to the one between six and half dozen and I am in unison with the respondents’ Counsel that the record of appeal does not justify the contention of the appellants’ Counsel who after agreeing with the learned trial judge sought an adjournment which the court granted. This issue is resolved against the appellant.
Before putting an end to this judgment, let me state that the dictum of Tobi JSC in ARAKA V. EGBUA (2003) 17 NWLR (PT. 848) 1 at pages 22-23 cited and quoted by the respondents’ Counsel on the need to curtail interlocutory appeals remains relevant and material to the instant case.
The record of appeal shows that the appellant filed the Notice of this interlocutory appeal on 6/3/09 when the case had been at the trial court for more than 9 years, and on an issue over which the learned Counsel had agreed and sought adjournment which was granted, only for Counsel to turn round and commence the appeal which itself has been in this court for about another 4 years just for the appellant to seek relief of an order of this court that the lower court should hear the application filed about 4 years ago and in respect of the case that has been in court for about 13 years now.
This is another instance of a waste of precious judicial time, through unnecessary interlocutory appeal but I say no more.
On the whole, I find this appeal to be unmeritorious and it is dismissed. The Suit No. FHC/CS/122/2000 is sent back to the Federal High Court, Awka for proceedings to be continued in the manner the court may deem fit under the rules of that court and other applicable laws in that behalf with the aim of avoiding unnecessary delay in the trial.
I award costs of N30,000.00 in favour of the respondents and against the appellant.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now, the Judgment delivered by my learned brother Akeju JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. The appeal is totally lacking in merit and ought to be dismissed. I also dismiss the appeal. I abide by all the consequential orders made in the Judgment including the order as to costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read the lead judgment delivered by my learned brother, ISAIAH OLUFEMI AKEJU, JCA; and I am totally in agreement with his reasoning and conclusions.
I adopt the judgment as mine and I too dismiss the appeal. I also abide by the order relating to costs.
Appearances
No counsel for the AppellantFor Appellant
AND
Emeka Ngige, SAN (with Bona Oraekwe)For Respondent
