Prince Cyril Ahaneku & Ors V. Nze Michael Ekeruo & Ors (2001)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A. 

This is an appeal against the judgment of the Imo State High Court (G.I. Udom-Azogu, J.), sitting at Owerri. The appellants were the plaintiffs before the court below. They had started proceeding by way of judicial review against the respondents herein, challenging the action of the 2nd-4th respondents putting the 1st respondent forward and according him recognition, as the Eze. At one stage, a motion on notice was filed on behalf of the 1st respondent, urging the court below to strike out the appellants’ application for judicial review on the grounds, that same was incompetent and statute-barred and the court lacked the jurisdiction to entertain it. The appellants in their turn, caused a notice of preliminary objection to be filed to the motion on notice on the ground, that the issue raised by it was in the nature of demurrer, which could only be raised in answer to pleadings or affidavit evidence.

On the day set for hearing, counsel for the appellants urged the court to hear his preliminary objection to the respondents’ motion on notice first. Counsel for the respondents would not hear of it, urging the court to hear his motion first as it raised the fundamental issue of jurisdiction of the court. The appellants’ counsel addressed the court and then, the two counsels for the respondents addressed.

The court then adjourned for ruling. In its ruling delivered on 15/5/97, the court declared the notice of preliminary objection incompetent and struck it out. It held the motion on notice challenging the jurisdiction to be meritorious and accordingly, struck out the appellants’ application for judicial review for want of jurisdiction and because it was statute barred.

Against this ruling, the appellants have appealed to this court on nine grounds of appeal numbered A – J in the amended notice of appeal (the letter ‘I’ was omitted in the numbering). Chief E.T.C. Ogbusu, who prepared the amended appellants’ brief, indicated that he would abandon grounds B – D.

Chief Ogbusu formulated four issues, which Mr. O. N. Owuamalam, the learned Principal Legal Officer, Imo State, adopted in the 2nd -4th respondents’ brief. I think, however, that only one issue is called for by this appeal, and that is the issue formulated by Mr. D.O. Madu, in the 1st respondent’s brief. I recast it thus, to make it more intelligible:

Whether or not the court below was right in the circumstances in striking out both the appellants’ notice of preliminary objection and their substantive application for judicial review.

Chief Ogbusu argued the four issues formulated by him separately, but they all boil down to the single complaint that the learned trial Judge ruled on the three main matters before it (i.e. the appellants’ application for judicial review, the respondents’ motion on notice challenging the jurisdiction of the court to entertain that application, and the appellants’ notice of preliminary objection to the hearing of the motion on notice), without the benefit of any argument on them by counsel. Learned Counsel pointed out that the only point canvassed before her and on which she was competent to rule on was, which, as between the motion on notice and the notice of preliminary objection, she should hear first. Counsel pointed out that she did not even rule on that point, but jumped forward, so to speak, to rule on the motion on notice, which was yet to be argued.

For the 1st respondent Mr. Madu submitted that the learned Judge was perfectly in order to rule as she did on both the motion on notice and the notice of preliminary objection thereto. In presenting the statement of facts learned Counsel, referring to pages 46, 47 and 48 of the Record of Proceedings, asserted in paragraphs 3.14 and 3.15 of the 1st respondent’s brief:

“The court thus, took argument from counsel on all sides on the Notice of Preliminary Objection by appellants and the motion by 1st respondent attacking the jurisdiction of the court to continue with further determination of the main motion filed by the appellants for judicial review. See pages 46, 47 and 48 of the records.

The court below after the full blown argument from counsel on all sides reserved its ruling, which was delivered on 15/5/97 striking out the Notice of Preliminary Objection as being incompetent, allowing the motion challenging the jurisdiction of the court and as a natural consequence, terminating the motion for judicial review by appellants which was clearly incompetent.”

He devoted the entire argument to justifying the holding of the Judge that the appellants, application for judicial review was incompetent. For the 2nd-4th respondents, Mr. Owuamalam asserted, referring to page 47 of the record that-

“when the matter came up for hearing the court called on all parties to address her on the applications before the court…

…Counsel for the applicants has not denied that court allowed counsel on all sides to address her…