Sylvanus Ekemezie V. Anikokwu Ifeanacho & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The plaintiffs/respondents, in a representative capacity, commenced action against the defendant/appellant, equally, in a representative capacity, in Suit No. A/230/2000. They claimed declaration of customary rights of occupancy, damages for trespass and injunction over the land in dispute referred to as “Agbo Amadim.” It was shown verged “Red” in Plan No. SC/ANOO5 LD/2001. It was filed with the Statement of Claim.

On his part, the defendant/appellant, in his Statement of Defence, indicated that the said land was verged “Pink” in Plan No. AA/D 28/2001. Thereafter, the defendant/appellant, by an application on notice, beseeched the trial Court to dismiss or strike out the case as an abuse of process.

Issues were duly joined in their respective Affidavits, Counter Affidavits and written submissions. The plaintiff/respondent, additionally, filed a Notice of Preliminary Objection challenging the competence of the said application. The trial Court, after hearing the arguments of counsel, dismissed the said Preliminary Objection. This prompted the defendant/appellant’s

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appeal to the Court of Appeal, Enugu Division (hereinafter, simply, referred to as “the lower Court.”) Sequel to the filing of the appeal, the defendant/appellant applied to the trial Court, by Motion on Notice, for leave to appeal “on grounds of mixed law and facts and on facts.” It sought an order “to deem the Notice of Appeal… already filed… as duly filed the appropriate fees having been paid…”

The plaintiff/respondent opposed the application. On its part, the lower Court, in its reserved judgement of July 9, 2009, upheld the respondent’s Preliminary Objection. In consequence, it struck out the Notice of Appeal as well as the interlocutory appeal. Hence, this appeal to this Court.

At the hearing of this appeal on November 6, 2018, N.F. P. Egonu, learned counsel for the appellant, adopted the brief of argument filed on… He, equally, adopted the Reply brief. On his part, Dr J. O. Ibik, SAN, learned senior counsel for the respondents, adopted the brief filed on January 13, 2010.

The plaintiffs/respondents reaction to this appeal was swift. He filed a notice of Preliminary Objection, incorporated and argued in his respondent’s

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brief, pages 3 7. In consequence, this objection would have to be dealt with before returning (if need be) to the main appeal. The objection was predicated on four grounds, namely,

Ground One

The Notice of Appeal challenging the interlocutory decision of the lower Court in the instant appeal was filed without prior leave in contravention of Section 21 (2) of the Supreme Court Act, Cap S. 15 Vol.14, Laws of the Federation of Nigeria, 2004, as made applicable by Section 233 (6) of the Constitution of the Federal Republic of Nigeria, 1999, Cap C 23, Vol 3, Laws of the Federation of Nigeria, 2004

Ground Two