Addax Petroleum Dev Co. Ltd. V. Nze Amakonze Ohaegbulem & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A,

This appeal is from the decision of the Imo State High Court contained in a ruling delivered on the 4th of November 2003 in suit No. HOG/32M/2002 commenced by the 1st – 8th Respondents herein under the Fundamental Rights Enforcement Procedure Rules, 1979, The Appellant herein had raised a preliminary objection challenging the jurisdiction of the High Court to hear the suit. While the preliminary objection was pending, the 1st – 8th Respondent filed an application to amend their originating processes which was granted by the High court. The Appellant felt aggrieved by the grant of the application for amendment before the preliminary objection raised by it was determined and so filed a Notice of Appeal against the decision on the 10th of November 2003 on four (4) grounds. On the 17th of January 2007, the Appellant was granted leave to amend the said grounds of appeal by the addition of another ground of appeal called “an additional ground 3”.

The amended Notice of Appeal now has the following grounds (without the particulars):-

1. “The learned trial judge erred in law when he granted the order of amendment as the court lacked the jurisdiction to hear the application for amendment.
2. The Learned trial Judge erred in law when he heard the application for amendment dated the 10th of September, 2003 filed by the 1st – 8th Respondents to amend the originating motion and reliefs in the statement of particulars.
3. The lower court lacks the jurisdiction to entertain the suit.”
4. The learned trial judge erred in law when he granted an order allowing the 1st – 8th Respondents to amend their originating motion and the reliefs in the statement of particulars.
5. The learned trial Judge erred in law when he deemed the amendment as having been properly filed and served appropriate fees having been paid.”

Briefs of argument were filed by learned counsel for the parties to the appeal as required by the Rules of court. The initial Appellant’s brief was filed on the 13th of February 2006 and another filed on 9th June 2006 but deemed filed on the 17th of January 2007 when the Appellant was granted leave to, file and argue an additional ground of appeal. The 1st – 8th Respondents’ brief and the 9th Respondent’s briefs were filed on the 5th of March 2007 but both deemed filed on 5th of July 2007. The briefs were adopted by the learned counsel for the parties to the appeal at the hearing on 25/1/09 and we were urged to uphold the respective submissions contained there in. The learned senior, counsel for the Appellant had adopted and relied on the Appellants’ brief deemed filed on the 17/1/07 in arguing the appeal and did not mention the initial Appellants’ brief filed on the 13/2/06. The legal implication is that the said brief has been abandoned and for that reason. It is hereby struck out.

At paragraph 2 on page 2 of the Appellants’ brief filed on 9th June 2006, grounds 4 and 5 of the amended Notice of Appeal set out above were withdrawn by the learned counsel. Two (2) issues were then raised and submitted for determination in the appeal as follows:-

“2.1 Whether the learned trial judge was right in granting the 1st – 8th Respondents application for amendment whilst the preliminary objection of the Appellant challenging the jurisdiction of the court remained pending before the court and unheard.

2.2. Whether the lower court lacked he jurisdiction to entertain the substantive suit.”

The learned counsel for the 1st – 8th Respondents did not adopt or formulate issues for determination but replied “to the contentions of the Appellant” on the 2nd issue formulated by the Appellant.

On her part, the learned State Counsel who settled the brief for the 9th Respondent raised two issues which are in effect, the same with the ones framed by the learned Appellant’s counsel.

Before going into the submissions of the learned counsel on the issues formulated, I note that the 1st – 8th Respondents had given a notice of preliminary objection which was filed on the 18th of May 2008. The preliminary objection which challenges the competence of the appeal and jurisdiction of the court to hear it was argued in the 1st – 8th Respondents’ brief. Because its object is to abort and terminate proceedings in the appeal at the stage it was raised, it is expedient to determine same first before going into the merits of the issues canvassed in the appeal in order to avoid embarking on what might turn out to be an exercise in futility. GOJI V. EWTE (2001) 15 NWLR (736) 273 @ 280, OKOI V. IBIAG (2002) 10 NWLR (776) 455 @ 468, UBA V. ACB (2005) 12 NWLR (939) 232 @ 259. For that reason, I intend to consider and determine the preliminary objection first.

Before then however, I have observed that in the Appellant’s Reply brief, the learned Appellant’s counsel had raised an objection to the preliminary objection on the grounds that it was not filed in accordance with Order 3, Rule 15 of the Court of Appeal Rules 2002 for failure to set out the grounds of the objection. In any event, it was submitted that the objection raised in relief ‘d’ on the face of the motion filed on 3rd May 2006 was struck out on the 17th of January 2007. The answer to this objection lies in the fact that the 1st – 8th Respondents had filed notice of preliminary objection to the appeal on the 18th of January 2008, pursuant to Order 10 Rule 1 of Court of Rules, 2007. That objection was filed in accord with the provisions of the Rule of court under which it was brought since it was given three (3) clear days before the hearing of the appeal and the grounds thereof were set out therein Even though the 1st – 8th Respondents’ brief was filed before the date of filing the notice of objection, that fact alone is not fatal to the objection argued in the said brief since the law is that a Respondent is entitled to raise and argue a preliminary objection in the brief. See TIZA V. BEGHA (2005) 5 SC (PT II) @ 7, AREWA TEXTILE PLC V. ABDULLAHI (1998) 6 NWLR (554) 508, MAGIT V. UNIV. OF AGRIC, MAKURDI (2006) ALL FWLR (298) 1313.

With the objection raised and argued in the Respondents’ brief which was served on the Appellant, the filing of the notice on the 18th of January 2008 by the 1st – 8th Respondents can easily be waived away as being “abundente candela” out of abundance of caution on the part of their learned counsel. I now deal with the objection.

The learned counsel for the 1st – 8th Respondent had submitted on the objection that the decision appealed against was an interlocutory one and that the leave of either the High Court or the Court of Appeal is necessary before filing the appeal. Section 241(1) and (242) (1) of the 1999 Constitution were cited and said to make it emphatic that leave of court must be obtained for the appeal to be competent.

That the Appellant’s failure to obtain leave before filing the appeal is very fatal to the competence of the appeal and jurisdiction of the court to hear it. The cases of ASANI V. GIWA (1986) 3 NWLR (32) 796, FUMUDO V. ABORO (1991) 9 NWLR (214) 210, GABARI V. ILORI (2003) FWLR (177) 901 @ 911, BOWAJI V. ADEDUWURA (1976) SC 43 as well as section 315 of the Court of Appeal Act were relied on. In addition, it was argued that the appeal is against the exercise of the High Court’s discretion and it is trite that that court has discretion of amending processes before it at any time in the proceeding before judgment. Several cases including: – OJAH V. OGBONI (1976) 4 SC 69 @ 77 and 78, WOLUCHEM V. GUDI (1981) 5 SC 291, NABSONS LTD V. MOBIL OIL (1995) 31 LRCN 187 @ 194 and IKWEKI V. EBELE (2005) 127 LRCN 1231 @ 1251 were cited on the submission that the appeal cannot be filed without leave of court since it was against the exercise of a discretion by the High Court