Cyril C. Okehi V. International Equitable Association (Industrial and Commercial) Limited (1997)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
Plaintiff now respondent in the interlocutory appeal brought an application in this court by way of preliminary objection requesting this court to strike out this appeal for lack of jurisdiction as no competent appeal is pending in this court, he is hereinafter referred to in this ruling as the applicant. The motion was on notice to the defendant now appellant in the interlocutory appeal but now respondent on notice of the interlocutory motion to strike out the interlocutory appeal, henceforth the defendant/appellant is referred to in this ruling as respondent. Owing to the nature of the application, parties were directed to submit written submissions and each party filed written submission on 28th January, 1977 and 14th February, 1997 respectively.
Applicant claimed in conclusion of his statement of claim as follows:
“WHEREFORE the plaintiff’s claims is for:-
(a) The sum of twenty-one Million Naira (N21,000,000.00) being special damages in that the defendant for several years up to and including the time material to this claim in 1991 negligently discharged industrial waste alkaline effluent into the open gutters of Nicholas Avenue, ABA which waste damaged the sub-soil of the premises of the plaintiff, undermined and destroyed the foundation of the plaintiffs executive mansion beyond tenantable repairs and therefore unfit for human habitation.
(b) Eight million Naira (N8,000,000.000 being general damages for the total damage of the plaintiffs premises at No. 16, NICHOLAS AVENUE, ABA.
(c) Perpetual injunction restraining the defendant by himself, servants, agents and workmen from continuing the discharge of its industrial waste alkaline effluent into the open gutter along Nicholas Avenue Aba.”
Respondent was served with the statement of claim. Learned counsel for the respondent entered appearance for the respondent on 10th March 1993 and filed the statement of defence as shown in pages 8-14 of the bundle of papers used as the record of appeal in this appeal. At page 14 by the endorsement for filing and by treasury receipt dated 11th May 1993 the statement of defence is deemed to have been filed in the high court registry, on 11th May, 1993.
At page 15 of the record dated 22nd June 1993 fixed for hearing on 30th June, 1993 was a motion on notice for an accelerated hearing of this suit. Page 17 of the record of appeal is reply to the statement of defence of the Respondent dated 29th September, 1994 filed on 14th October, 1994.
On the 20th of May, 1996 the matter came before Aba High Court with coram as Hon. Justice I.F. Ogbuagu. The record of proceedings as to what transpired that day are recorded at pages 24-25 and the imbroglio was as to the validity of the reply to the statement of defence. The learned trial Judge is recorded as follows:
“This court is a very busy one. The case will be adjourned to enable Mr. Anyanwu find out from the Registry the date of service on him or his client of the defendants’ statement of defence. He may then consider bringing a formal application for extension of time as the court does not grant such motions as a matter of course.
Although the purpose of granting accelerated hearing of Ibis case is defeated, but issues of law are not one which the court will brush aside on the ground of expediency. It is adjourned to 17th, 23rd and 25th July 1996 for hearing. It shall be called up first on any of these dates as soon as the court starts sitting.”
The Respondent being dissatisfied with what transpired at the High Court of Abia High Court holden at Aba on 20th May 1996 filed a notice of appeal in this court wherein in paragraph 3 of the notice of appeal raised two grounds of appeal and furnished the particulars. The grounds of appeal without their particulars are set below.
“3 GROUNDS OF APPEAL
(a) The learned trial Judge erred in law by failing to duly infer by virtue of Section 74 (1)(m) of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990 whether or not the Respondent compiled with Order 25 Rule 3 sub section 4 of the Imo State High Court Rules of 1988 applicable in Abia State after it was raised by the appellant counsel on date Ibis suit was slated for hearing.
PARTICULARS OF ERROR
(b) The learned trial Judge refused to deliver a decision as required by Section 277(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended after hearing counsel in the suit.
PARTICULARS OF ERROR
The applicant filed an application on notice in Ibis court wherein he brought the application under section 220(1)(b) of the 1979 Constitution for striking out the appeal for the following reasons:-
“(1) In so far as the argument in the lower court has not been completed and or determination made in relation thereto this honourable court lacks jurisdiction to entertain the appeal on the issue.
(2) In so far as the appeal and grounds of appeal in the said appeal offered against the provisions of the Constitution of the Federal Republic of Nigeria 1979 and in particular, Section 220(1)(b) of the said constitution the said appeal is incompetent”
In his written submission at page 4 paragraph 2, applicant raised the issues for determination in this motion thus:-
“2. ISSUES FOR DETERMINATION IN THIS MOTION
(a) Whether argument had been completed on the issue raised in the lower court to enable that court to resolve the said issue.
(b) Whether there is proper appeal within the meaning of section 220(1)(b) of the 1979 Constitution of the Federal Republic of Nigeria to enable this honourable court to assume jurisdiction.”
Whilst Respondent in its own written submission at page 3 paragraph 3 submitted the issues for determination as follows:
“3.0 QUESTIONS FOR DETERMINATION BY THIS HONOURABLE COURT
3.1 The defendant/Appellant/Respondent most respectfully contends that the following questions arise at this stage for determination by this honourable court namely:-
(1) to determine whether or not the learned trial Judge pronounced on the 20th May, 1996 the propriety of the Plaintiff/Respondent/Applicant’s Reply to the Statement of Defence filed on 14th October, 1996 which is the subject of the Defendant/Appellant/Respondent’s Appeal.
(ii) Whether the notice of appeal lodged by the Defendant Appellant/Respondent on 3rd June 1996 is predicated on section 220(1)(b) of the 1979 Constitution of Federal Republic of Nigeria as AMENDED or otherwise and
(iii) If the answer to question 3(i)(ii) herein is in the affirmative, can this Honourable Court assume jurisdiction to entertain the Defendant/Appellant/Respondent’s appeal.”
As stated above in this ruling, what transpired on 20th May, 1996 was intentionally and advisedly stated as what transpired as to whether or not a decision within section 277 of the 1979 Constitution was the outcome of what took place and falls within definition of decision as defined in Section 277 of 1979 Constitution aforesaid. This is the Crux of the appeal.
In the arguments of the parties, each party contends whether or not what occurred at the Aba High Court on 20th May, 1996 amounted or not to a decision. This is the bone of contention in ground 2 of the substantive appeal and issue 1 raised in Respondent’s issue or question for determination in this application. My understanding of the present interlocutory notice of preliminary objection though couched or under the guise of jurisdiction is for this court to decide the issue in the substantive appeal in the interlocutory appeal. With respect what this court is being called upon now is the common adage of putting the cart before the horse. It is trite law that this court should be cautious not to decided in the interlocutory appeal the issue to be decided in the substantive appeal.
It was held in S.C.C. Nigeria Ltd & Anor (By his next friend Friday Ukanwoke) v. Our Line Ltd v. Universal Insurance Co. Ltd (1995) 5 NWLR (Pt 395) 364 by Court of Appeal wherein it was held:-
“9. A court of law should not unwittingly decide the very same matter which is yet to be dealt with in the substantive case before it at the interlocutory stage. In the instant case, no matter how careful the Court of Appeal may be it is unable to appreciate how the crucial jurisdiction issue raised by the elevation of the trial Judge to the Supreme Court bench, can be decided one way or the other without going into the merits of the appeal.”
Also in Icon Limited (Merchant Bankers) v. FBN (Merchant Bankers) Ltd (1995) 6 NWLR (Pt.401) page 370 at 377 it was held that:-
“8 At the interlocutory stage issues that would at the appeal stage ought not to be heard argued by counsel and decisively commented upon by the court. The court has to concern itself as to whether there exist favourable conditions that would enable it to grant the application if not, to refuse it.”
applied and followed in unreported rulings delivered on 12th June, 1996 in CA/PH/94M/97 Chief Reginald F.P. Abbey Hart & 4 Ors v. TSKJ Nig. Ltd & Ors. CA/PH/70M/97 (1997) 7 NWLR (Pt. 517) 424; Shell Petroleum Development Co. (Nig.) Ltd. v. Chief Tigbara Edamkue & 5 Ors. and Chief Nwoke Nwikunee & 4 Ors.; Brown v. Brown (1994) 7 NWLR (Pt.355) 217 CA
Applying the above authorities to the instant appeal, there is no way in the consideration without deciding whether what transpired on 20/5/96 amounted or resulted in a decision within the meaning and intendment of Section 277 of 1979 Constitution of Nigeria as a decision or not a decision thereby unwittingly deciding at this interlocutory stage the issue to be decided in the substantive appeal. For this reason, I advisedly made no comments on the merits or demerits of this application and to re-emphasize the description of what transpired in court and not to tread on the issue whether it was a decision or not. In the consideration section 220(1) of the Constitution is bound to be considered which is also an issue raised in the substantive appeal because if there was no decision this court lacks competency and jurisdiction to entertain the appeal as competency goes to jurisdiction Madukolu v. Nkemdilim (1962) 2 SC NLR page 341. Adigun v. Governor of Osun State (1995) 3 NWLR (Pt.385) page 513 SC.
For the foregoing reasons and with caution this application is refused as it shall involve this court at this interlocutory objection to decide the issue raised in the substantive interlocutory appeal which is not a right step for this court to take. The application having been refused is hereby struck out The Respondent is entitled to the cost which acting judicially and judiciously is fixed at N1,500.00 in favour of Respondent against the Applicant
Other Citations: (1997)LCN/0285(CA)
