JUDE OGBONNA v. AGHAEGBUNAM EZEWUZIE (2013)

JUDE OGBONNA v. AGHAEGBUNAM EZEWUZIE

(2013)LCN/6646(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of December, 2013

CA/B/316/2011

RATIO

EFFECT OF THE SUCCESS OF A PRELIMINARY OBJECTION ON THE COMOETENCE OF AN APPEAL

WHETHER A GROUND OF APPEAL MUST BE A COMPLAINT AGAINST THE RATIO DECIDENCI OF THE TRIAL COURT

It is elementary, that a ground of appeal must specifically attack the finding and/or decision of the trial court, so a ground of appeal cannot be valid and competent if it is general, vague, argumentative and imprecise. Therefore, a ground of appeal must disclose a reasonable complaint against a ratio decidendi in the decision being appealed against. Furthermore, a valid and competent ground of appeal must have its particulars stating clearly the nature of the alleged error or misdirection of the court below in arriving at her decision. This much was reiterated by the Supreme Court more recently in Prof. Olufeagba & ors. v. Prof. Shuaibu Oba AbdulRaheem & Ors. (2010) 17 WRN 23; (2009) 12 SCNJ 349 at page 373 where Fabiyi, JSC said:

“The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross-purpose to the ground of appeal, it becomes defective and liable to be struck out. See Honika Sawmill (Nig) Ltd. V. Hoff (1994) 2 NWLR (pt. 326) 22; (1994) 2 SCNJ 86; Nwadike v. Ibekwe (2004) 24 WRN 32; (1987) 11 – 12 SCNJ 72; (1987) 2 NSCC 1219; (1987) 12 SC 14; (1987) 4 NWLR (pt. 67) 718.” Also see Baido V. INEC (2012) 31 WRN 27 at 59. Per TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

JUDE OGBONNA Appellant(s)

AND

AGHAEGBUNAM EZEWUZIE Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Delta State High Court of Justice, holden at Owa-Oyibu, which was delivered on 29th July, 2011.
The respondent had on 5th February, 2011 taken out a writ of summons against the appellant and claimed, to wit:

“a. A declaration that the claimant is a principal member of late Chief R.N.T Ezewuzie’s family.
b. A declaration that the landed property situate at 226 old Lagos/Asaba Road, Agbor is the family property of the male children of Late Chief R.N.T. Ezewuzie.
c. A declaration that the purported sale of the said property to the defendant without the consent of the claimant is illegal, null and void.
d. An order setting aside the purported sale of the property to the defendant.
e. an order of perpetual injunction restraining the defendant, agents, servants, privies from entering or interfering with the said property.”

The respondent filed his statement of claim contemporaneously with his written Deposition/Statement on oath that is frontloading of evidence. The appellant on receipt of the aforementioned processes did not file a statement of defence. Nevertheless, he filed a Notice of Preliminary objection, pursuant to the Inherent Jurisdiction of the court and section 6(6) (a) of the 1999 constitution; praying “for an Order to dismiss or strike out the application as presently constituted as same is incompetent”.
The grounds upon which the objection was hinged were, inter alia:

“(1) That the suit is incompetent and the court has no jurisdiction to entertain the matter and/or grant the reliefs sought as the core Defendant, to wit: proper parties are not before the court,
(2) That the claimant did not comply with the Civil Procedure Rules (sic) Delta State 2009 in that there was no Written Statement on oath of the claimant.
(3) That the Writ of Summons is incompetent to wit: there is no cause of action (b) effluxion of time.”

There was no affidavit filed in support of the Preliminary objection. However, there is a written address filed in support thereof.
The respondent filed a written address in opposition to the appellant’s preliminary objection and the appellant filed a Reply on points of law to the respondent’s written address.
The court below, in its ruling on the appellant’s preliminary objection, dismissed it and held that the respondent’s action is incompetent which is why the appellant filed this appeal against it.
The appeal was erected on two grounds of appeal, to wit:

“(1) The Court erred in law to have dismissed the Preliminary Objection of the Defendant/applicant.

PARTICULARS OF ERROR
(1) That the procedural issue or domestic law cannot override the supremacy of any provision of the Constitution as it is now a substantive issue.

(2) The Court erred in law to have dismissed the Preliminary Objection of the Defendant/Applicant.

PARTICULARS OF ERROR
(1) The claim is statute barred as the purported sale was sometime in 2006 and the writ of summons taken out on 24th day of February, 2011.
(2) That the application was hinged on the inherent jurisdiction of the Court and Section 6(5)(a) of the 1999 Constitution.”

The appellant, in pursuance of the prosecution of this appeal, was armed with the appellant’s brief of argument dated 3rd November, 2011 and filed on 4th November, 2011. It was settled by C.D. Uwagboi, Esq. In it, a sole issue for determination was identified thus:

“Whether or not the trial Court was right in holding in one breath, that the date when the cause of action arose being material, is not apparent on the statement of claim and yet in another breath, that the said statement of claim disclosed a reasonable cause of action as to vest the court with jurisdiction?”

The Respondent, on his part, filed a Notice of Preliminary objection with respect to the competence of the appeal. The grounds of the objection are, to wit:

“a. Ground 1 is academic, hypothetical and is not an attack against any live decision and/or finding of the court below and therefore incompetent.
b. Ground 2 is a fresh point which requires leave and was not canvassed in the court below and is equally unrelated to any decision and/or finding of the court below and therefore incompetent.
c. The said leave was not sought and obtained.
d. The appellant’s sole issue for determination does not arise from his grounds of appeal and therefore incompetent.
e. The appeal is consequently incompetent and should be struck out.”

The said Notice of Preliminary objection is dated 23rd November, 2011 but filed on 12th December, 2011. The respondent’s brief of argument dated 28th November, 2011 was filed on 12th December, 2011. It was settled by C.O. Erondu, Esq. In it argument in support of the preliminary objection was articulated at pages 1 to 5 thereof.
The respondent’s learned counsel, thereafter on the kernel of the appeal, identified a sole issue for determination, inter alia:

“whether the learned trial judge was right in dismissing the notice of preliminary objection filed by the Appellant.”

In his response to the preliminary objection, learned appellant’s counsel filed a process tagged: “ARGUMENT IN OPPOSITION TO THE RESPONDENTS PRELIMINARY OBJECTION,” which in essence, to my mind, is a Reply brief of argument and I regard it as such.

It is expedient that the preliminary objection to the competence of the appeal be considered and determined first. Learned respondent’s counsel submitted that ground 1 of the appeal is grossly incompetent because it is not only academic and hypothetical, but equally constituted in the abstract. He contended that the learned trial judge agreed with the procedure adopted by the appellant in raising the preliminary objection against the competence of the respondent’s action and there was no ground challenging that decision of the learned trial judge, therefore he wondered what ground 1 and its particulars are intended to achieve. Learned counsel submitted that a ground of appeal encapsulates the grouse of an appellant against an unfavourable finding against him. Hence, a ground of appeal must be concise without it being argumentative or narrative. He relied on Olawepo v. S.E.C. (2011) 16 NWLR (PT. 1272) 122 at 140; Edith Ogbuli & Anor. v. Aniemena Ogbuli & Anor. (2008) 1 NWLR (pt. 1068) 258 at 271 – 212; Ayua v. Adasu (1992) 3 NWLR (pt. 231) 598; order 6 R. 1, 2 & 3 of the Court of Appeal Rules, 2011.

With respect to Ground 2, it is the contention of the respondent’s counsel that the particular 1 supporting it, invented a date as to when the cause of action accrued, which is entirety a fresh issue that was not canvassed at the court below and a finding made on it by the learned trial judge. He further contended that without the leave of this court sought and obtained by the appellant, he cannot raise a fresh issue and canvass or ventilate it on appeal. He placed reliance on Ajuwon V. Adeoti (1990) 2 NWLR (pt. 132) 271; Ejiofodomi V. Okonkwo (1982) 11 SC 74; Ekpuk V. Okon (2002) 5 NWLR (pt. 760) 445.
Furthermore, respondent’s learned counsel submitted that ground 2 has no bearing to the decision and/or any finding of the court below.
Learned respondent’s counsel also contended that the sole issue for determination formulated by the appellant did not flow from the grounds of appeal nor traceable to them, hence the said issue must be discountenanced. He placed reliance on Dada V. Dosunmu (2006) 18 NWLR (pt. 1010) 134 at 156 – 157; Seagul Oil Ltd. v. Moni Pulo Ltd. (2011) 15 NWLR (pt. 1271) 525 at 541. He argued that since the grounds of appeal and the sole issue formulated by the appellant for determination, are each incompetent, the appeal should be struck out.

In his reaction to the preliminary objection, learned counsel to the appellant, firstly contended that the said preliminary objection was never served on him, so it is incompetent and must be dismissed.
Secondly, it is the submission of the appellant’s counsel that particular 2 of ground 1 support the issue he nominated for determination of the appeal and it is that the action of the respondent was incompetent since the date on which the cause of action arose was not endorsed or averred in the statement of claim. Hence, according to him, the court below was not to speculate with respect to when the cause of action arose in order to assume jurisdiction and adjudicate over the respondent’s action before it. Furthermore, it is his submission that “whether an action is caught up by a limitation law or not is an issue that goes to the jurisdiction of the suit (sic) which the court can only resolve by looking at the date the cause of action arose in the Respondent’s pleading. Where such date is absent or not apparent on the face of pleading (as acknowledged by the trial court in the instant case); the trial court is required by law to take evidence on the date the cause of action arose before proceeding to hear the case”. He relied on Olorunkunle v. Adigun (2012) 6 NWLR (pt. 1297) 407 at 425 CA; Kasandu v. Ultimate Petroleum Ltd (2008) 7 NWLR (pt. 1086) 274 at 425 CA.
Finally, appellant’s counsel contended that the submission of respondent’s counsel with respect to concealment of the date of the sale of the land in question, at page 9 of the respondent’s brief of argument, is a fresh issue and since no leave of this court was obtained before it was argued, it was incompetent and liable to be struck out.
Now, the essence of a respondent giving a notice of preliminary objection to an appellant is captured by Order 10 Rule 1 of the Court of Appeal Rules 2011, to wit:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”

The notice of preliminary objection at the instance of the respondent herein was dated 23rd November, 2011 and filed on 12th December, 2011. The respondent re-echoed the preliminary objection in his brief of argument filed on 12th December, 2011. The appellant’s argument in opposition to the respondent’s preliminary objection which I have regarded as the appellant’s Reply brief of argument was filed on 7th June, 2012. The appeal was taken on 6th November, 2013. I have chronicled the sequence of events with respect to the respondent’s notice of preliminary objection, to demonstrate the fact that the appellant’s contention that he was not aware or ever served with the said notice of preliminary objection, pales into insignificance. In other words, the appellant had notice of the preliminary objection, for more than three clear days before the appeal was heard on 6th November, 2013.
Therefore, I am of the considered opinion that since the appellant duly exercised his right of fair hearing by filing a reply brief of argument to the respondent’s preliminary objection, the said objection is competent. Magrit v. UNIAGRIC Makurdi (2005) 19 NQLR (pt. 959) 211 at 239; Odedo V. INEC (2003) 7 SCNJ 1 at 25; Okereke V. Yar’Adua & Ors. (2008) 5 SCNJ 1.
In determining the nature of a ground of appeal, one must look closely at the main ground with the particulars thereof. Orakposim v. Menkiti (2001) 5 SC (pt. 1) 72 at 81; Iwuoha v. NIPOST (2003) 4 SC (pt. II) 37 at 54; Ugboaja v. Sowemimo & Ors. (2008) 7 SCNJ 105; (2008) 7 SC 1 at 81.
I have perused ground 1 of the notice of appeal. It is glaring to me that the only particular in support thereof is argumentative and prolix. It is not in tandem with the ground of appeal. Therefore, both of them are liable to be struck out for being incompetent.

With respect to ground 2 and particular (1) thereof, the latter has infirmed the said ground. There is no decision of the learned trial judge to the effect that “the purported sale was sometime in 2006”. It is indeed a fresh issue as canvassed by the respondent’s counsel and I agree with him, on the authorities relied upon by him, that without the leave of this court sought and obtained, it cannot be ventilated upon on appeal. Apart from that, the said particular (1) is unarguably argumentative. The infirmity of ground 2 by particular (1) thereof has rendered both of them as being incompetent and liable to be struck out. It is noteworthy that grounds 1 and 2 are the same.
It is elementary, that a ground of appeal must specifically attack the finding and/or decision of the trial court, so a ground of appeal cannot be valid and competent if it is general, vague, argumentative and imprecise. Therefore, a ground of appeal must disclose a reasonable complaint against a ratio decidendi in the decision being appealed against. Furthermore, a valid and competent ground of appeal must have its particulars stating clearly the nature of the alleged error or misdirection of the court below in arriving at her decision. This much was reiterated by the Supreme Court more recently in Prof. Olufeagba & ors. v. Prof. Shuaibu Oba AbdulRaheem & Ors. (2010) 17 WRN 23; (2009) 12 SCNJ 349 at page 373 where Fabiyi, JSC said:
“The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross-purpose to the ground of appeal, it becomes defective and liable to be struck out. See Honika Sawmill (Nig) Ltd. V. Hoff (1994) 2 NWLR (pt. 326) 22; (1994) 2 SCNJ 86; Nwadike v. Ibekwe (2004) 24 WRN 32; (1987) 11 – 12 SCNJ 72; (1987) 2 NSCC 1219; (1987) 12 SC 14; (1987) 4 NWLR (pt. 67) 718.” Also see Baido V. INEC (2012) 31 WRN 27 at 59.
For all I have said, I am satisfied that grounds 1 and 2 of the notice of appeal are incompetent. They are each struck out. And having so found, it follows that the sole issue for determination formulated from them by the appellant, stands on nothing but quick sand. Hence it is discountenanced by me. The appeal is therefore struck out.

The effect of the success of a preliminary objection on the competence of an appeal generally forecloses the hearing of the appeal by going through the whole length of the arguments canvassed in it. BASF Nig. Ltd. v. Faith Enterprises Ltd. (2010) 1 SCNJ 223 at 249; D.S. Yaro V. Arewa Construction Ltd. & Anor. (2007) 6 SCNJ 418; Ralph Uwazuruike V. A.G. Federation (2007) 7 SCNJ 369 at 380; Mosoba V. Abubakar (2005) 6 NWLR (pt. 922) 460; NEPA V. Ango (2001) 15 NWLR (pt. 737) 627 at 645 – 646.
However, this court, being a penultimate court, it is expedient for me to consider the appeal on its merits and this I shall now do. Bala v. Dikko (2013) 4 NWLR (pt. 1343) 52 at 61; Central Bank of Nig v. Katto (1994) 4 NWLR (pt. 339) 446.
In my consideration and determination of the appeal, I adopt the sole issue for determination, formulated by the respondent’s counsel. It is simply “whether the learned trial judge was right in dismissing the notice of preliminary objection filed by the appellant”.

It is the submission of learned appellant’s counsel that the respondent at paragraph 10 of his statement of claim ought to have averred clearly, the date, that is the time that the cause of action arose and for failing to do so, the learned trial judge could not have known when the cause of action arose, for him to assume jurisdiction over the action. He referred to Order 15 Rules 2 and 3 of the Delta State High Court (Civil Procedure) Rules, 2009. He insisted that the burden was on the respondent who ought to have pleaded the time/date and when the cause of action arose in order to vest jurisdiction on the court below and that the respondent’s failure to so do is fatal to his claim. Learned appellant’s counsel furthermore submitted that jurisdiction being a threshold issue is so fundamental and so it overrides procedural rules of court. He placed reliance on Akegbejo & 3 Ors. V. Ataga (?) 1 NWLR (pt. 534) 459 at 469.
Learned counsel further submitted that parties cannot confer jurisdiction on the court either by connivance and acquiescence or failure to object (to what). He referred to FGN v. Oshiomhole (?) (pt. 860) 305 at 324. Also that jurisdiction cannot be waived. He relied on Okolo v. Union Bank (2004) All FWLR (pt. 197) 981 or (2004) 3 NWLR (pt. 859) 87; Mobil Production Nig. Ltd. v. Monokpo (2004) All FWLR (pt. 195) 575 at 657 or (2004) 2 MJSC 1.
Appellant’s learned counsel also relied on Skenconsult V. Ukey (1981) 1 SC 6; Madukolu v. Nkemdilim (1962) 2 SCNLR 341 or (1062) 1 All NLR 587 to the effect that in order to determine jurisdiction, the court must be sure that:

(a) proper parties are before the court;
(b) The subject matter falls within the jurisdiction of the court;
(c) It is properly constituted of qualified members;
(d) The suit is commenced by due process of law and upon fulfillment of any condition precedent to assumption of jurisdiction.

Respondent’s learned counsel’s contention is that the question of limitation of action as canvassed by the appellant is without reference to facts available to the court which will be used to determine when the cause of action arose. He further submitted that appellant’s counsel appeared confused as to the applicable limitation law with respect to the respondent’s claim at the court below. He submitted that the relevant limitation law is the Delta State Limitation Law, 2009, Cap. LII Vol. 3 and not the limitation law, 2006 of Delta State relied upon by appellant’s counsel.

It is the contention of respondent’s learned counsel that the date a cause of action arises or accrued is only material in ascertaining whether the action is statute barred or not. He relied on Cross River University of Technology (Crutech) v. Lawrence Obeten (2011) 5 NWLR (pt. 1271) 588 at 608; Eboigbe v. N.N.P.C. (1994) 5 NWLR (pt. 347) 649. He insisted that the respondent’s action at the court below is not statute barred.

A challenge to the competence of an action premised as in this case, on a statute of limitation, is invariably a challenge to the jurisdiction of the court, to hear and determine the action before it.
In order to determine whether or not its jurisdiction is impeached and unavailable for it to exercise, there are parameters which will guide the court to do so. They have been re-echoed more recently by the apex court in Nigerian National Petroleum Corporation (NNPC) & Anor. V. Chief Stephen Orhiowasele & Ors. (2013) 13 NWLR (pt. 1371) 211 at 224, by my Lord, Rhodes-Vivour, JSC, to wit:
“The principles which guide a court in determining if it has jurisdiction are:
(a) that the subject matter of the case is within its jurisdiction;
(b) that there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) that the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1952) 2 SCNLR p. 341”.

In the instant case, the respondent’s action is with respect to recovery of a family property, a parcel of land which was allegedly sold to the appellant by a member of the respondent’s family without the knowledge and consent of other male children of the Late Chief R.N.T. Ezewuzie’s family of Agbor. The contention of the appellant is that the date when the cause of action accrued to the respondent to sue him, was not averred in the respondent’s statement of claim and that it was the latter who had the duty to plead that fact. The learned trial judge was of the opinion that the date upon which the cause of action accrued was not apparent on the statement of claim. He dismissed the appellant’s preliminary objection.
Now, did the appellant know when the cause of action accrued? Is it not he who is alleging that the action is statute barred, who ought to have provided that fact, if he knew it? The answers to these questions are not far-fetched. The apex court outlined the road map to be navigated in order to know when a cause of action accrued in so many cases. Some of them are: Obiefuna V. Okoye (1961) All NLR 357; Fred Egbe v. Justice J. Adefarasin (1987) 1 NSCC 67 at 80; Texaco Panama Incorp. v. Shell (2002) 2 SC (pt. II) 1 at 25; Fadare v. Attorney General of Oyo State (1982) All LR 26 at 37; Eboigbe v. NNPC (1994) 5 NWLR (pt. 347) 649; Ekeogu v. Aliri (1991) 3 NWLR (pt. 179) 358; Nnoye v. Anyichie (2005) 2 NWLR (pt. 910) 623; Dr. Charles Williams v. Madam Olaitan Williams (2008) 5 SCNJ 155 at 166.
In the latter case, that is, Williams v. Williams (supra), this is how the apex court, summarized the principles guiding the determination of when a cause of action accrues and who has the duty of establishing that a cause of action is statute barred. Hear his Lordship, Musdapher, JSC, (as he then was) inter alia:
“Now, how does one determine the period of limitation in a particular case? In Egbe v. Adefarasin supra. Oputa J.S.C. stated:-
“The answer is very simple by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”
See Texaco Panama Incorp. V. Shell (2002) S.C. (pt. II) 1 at 25, Fadare v. Attorney-General of Oyo State (supra), Board of Trade v. Cayner, Iryine & Co. Ltd. (1927) AC 610 where it was held:-
“Time therefore begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”
See Jallco Ltd. v. Owoniboys Technical serv. Ltd (1995) 4 N.W.L.R (pt. 391) 534 at 547. It is also the law, that ignorance of the statutory limitation provision by the plaintiff is of no moment. See Cartledge v. Jopling and Sons Ltd (1963) A.C. 758, Sanda v. Kukawa Local Government (1991) 2 N.W.L.R. (pt. 174) 379 at 389. Bakare v. Coker (1935) 12 N.L.R. 31 Green v. Owo (1936) 12 N.L.R. 43.
There is no doubt that it is ordinarily the defendant who raises the preliminary objection who should establish that the action is statute barred. See Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping and Transport Agencies Ltd. supra, but where on the face of the writ of summons the date of the wrong committed is clear, a comparison can be made with that date and the date when the cause of action was taken to court.”

I think with that, the contention of the appellant as to who had the duty of proving facts in order to establish that the respondent’s action is statute barred is effectively answered and laid to rest. That is, that it is the objector who alleges that must establish his allegation.
It is expedient for me to say that in a preliminary objection of this nature, the objector, such as the appellant herein, must be seized of the facts with respect to the suit he intends to abort its hearing and determination on merits, vide a preliminary objection and the relevant limitation law regarding the suit and how to invoke it effectively.

The relevant limitation law on the instant case is the Limitation Law Cap. LII Vol. 3 Laws of Delta State, 2009. Section 3 of the said law, provides thus:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person”.
In effect, under the said Limitation Law, 2009, a right of action to any person claiming for a declaration in respect of recovery of land, becomes extinguished, if he does not file an action with respect to that parcel of land, within ten years, after he becomes aware that somebody is laying claim to his land. In other words, after ten years of the accrual of the cause of action, the right of action is lost and becomes bare and bald.

Let me conclude. The learned trial judge found that on the materials/facts placed before him as per the statement of claim, it was not apparent when the cause of action arose. In that circumstance, he came to the conclusion that the preliminary objection was not successful and dismissed it. I would have thought that at that stage, learned appellant’s counsel should have set out to find facts with respect to the action in court and file his statement of defence and demonstrate that the question of the limitation placed in the way of the respondent’s action was not yet over. He rushed to file this appeal. Yet time is going and justice is being delayed. And the fault will be put on the doorstep of the court. Not on the counsel. There must be a re-think by learned counsel on preliminary objections of this sort, which most often serve no useful purpose, than constitute a nuisance to the quick dispensation of justice. In other words, preliminary objections of the type herein, to my mind, are counter productive. It were better, if the action had proceeded to full hearing and if it at the trial, the court found that it had no jurisdiction, it would be clear for all to see.
I am fortified in my thought as expressed above, by a more distinguished jurist, my Lord – Uwais, JSC (as he then was) when he said of delays in dispensation of justice because of unnecessary preliminary objections, in Amadi v. NNPC (2000) 10 NWLR (pt. 674) 76 at 100, inter alia:
“It has thus taken thirteen years for the case to reach this stage. With the success of the plaintiffs appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel owe it as a duty to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here, so that the adage justice delayed is justice denied may cease to apply to the proceedings in our courts.”
I am bound to agree and I so agree.

For the foregoings, I am satisfied that the appeal is lacking in merits. I dismiss it accordingly.
The ruling of C.N. Ogadi, J., delivered on 29th July, 2011 in re suit No. HCY/3/2011 is hereby affirmed.
Costs of N50,000.00 is awarded to the respondent against the appellant.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother, TOM SHAIBU YAKUBU, JCA. I am in complete agreement with his Lordship’s reasoning and conclusion that this appeal completely lacks merit and it should be dismissed with costs against the appellant. I must add that far be it from the Court to criticize the strategy employed by counsel in defending an action, however, rushing to court to appeal at each stage of the trial process at the lower court does not augur well for the quick and effective dispensation of justice. Learned appellant’s counsel as objector at the trial court did not put all necessary materials before the court and his preliminary objection was dismissed. If he had filed his defence and raised the defences open to him therein instead of a preliminary objection based on grounds of facts and not of law which facts were not conclusive from the processes filed, the matter could have faired better. The preliminary objection filed at the trial court was ill-conceived and rightly dismissed by the trial court. This interlocutory Appeal is dismissed. I abide by the order as to costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the Judgment just delivered by my learned brother, the Hon. Justice T.S. Yakubu, JCA, to the effect that the present appeal lacks merits. Accordingly, I hereby dismiss it. The Ruling delivered by C.N. Ogadi, J; on 29/7/2011 in Suit No.HCY/3/2011, is hereby affirmed.
I abide by the order of Costs of N50, 000.00 awarded to the Respondent, against the Appellant.

Appearances

A.C. Oluiji, Esq.For Appellant

AND

C.O. Erondu Esq., (with C.S. Christian, Esq.)For Respondent