Gipsrel Inter. Co. Nig. Ltd. V. Henry O. Eya & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Ruling)

The present application for a stay of proceedings by the 1st defendant/appellant/applicant arose from the Ruling of N. C. Otti, J., delivered on 6/10/03.

Hitherto, by an originating summons dated 9th September, 2002, the plaintiffs (now respondents) approached the lower court against the present appellant/applicant as 1st defendant and others for the determination of the following questions:

“1. Whether the judgment of this Honourable Court (Coram D. E. Njiribeako J.) in Suit No. A/20/79 – Chief Abraham O. Eya & 2 Ors. vs. Chief T. A. N. Obeta dated the 5th day of June, 1981 does not render any subsequent dealings in the property known as Plot 3 Block 66 otherwise known as No. 72 Hospital Road, Aba, by H. R. H. Igwe T. A. N. Obeta, A. E. Bright Future Motors (Nig.) Ltd. and Gipsrel Inter. Co. Nig. Ltd. invalid, null and void.

RELIEFS SOUGHT

1. A declaration that the following instruments executed by the parties hereinabove named in relation to the said property as it is hereunder shown in the property card of the said property in Registry of Deeds at the office at Umuahia are invalid, null and void, that is to say: ……….
2. Perpetual injunction restraining GIPSREL INTER. CO. LTD. either by themselves, their servants and or agents from committing any further acts of trespass on the aforesaid property.”

Before the lower court, in reaction to this suit, the 1st defendant/appellant/applicant entered a conditional appearance and also filed a counter-affidavit in opposition to the originating summons. Subsequently, the 1st defendant/appellant/applicant filed a notice of preliminary objection praying the court below to strike out the suit on the basis that the court had no jurisdiction to entertain the action having not been brought by due process of law. 1st defendant’s/appellant’s reason among others was that the facts of the suit, as between it and the plaintiff are controversial and could not be entertained without calling evidence.

The learned trial Judge on 6/10/03 overruled the 1st defendant’s/appellant’s preliminary objection and observed that an originating summons is merely a form of procedure not meant to enlarge or take away the jurisdiction of court.

Learned counsel for the 1st defendant/appellant applied on 18/11/03 to stay proceedings at the lower court, consequent on the above Ruling. In another well-considered Ruling delivered on 14/1/04, N. C. Otti, J., refused the 1st defendant’s/appellant’s application for stay of proceedings.

By a Notice of Appeal filed on 24/5/07 containing six (6) grounds of appeal, learned senior counsel for the appellant complained against the Ruling of 6/10/03 in which the Hon. Justice N. C. Otti assumed jurisdiction in the case. In relation to the appeal, appellant filed its brief of argument on 1/6/07.

On 19/6/07, learned senior counsel for the appellant/applicant (1st defendant in the lower court) filed a Motion on Notice dated 18/6/07 for an order:

“Staying the proceedings in Suit No. A/434/2002 – Henry O. Eya & Anor. vs. Gipsrel International Company Nigeria Ltd. & 3 Ors., now pending in High Court 2, Aba, Abia State pending the determination of the appeal to the Court of Appeal in the same suit.”

The 1st defendant’s/appellant’s/applicant’s motion on notice is supported by a 16 paragraph affidavit also dated 19/6/07 sworn to by one Engr. J. O. Ukaegbu, the Administrative Manager of Gipsrel International Company Nigeria Ltd. The plaintiffs/respondents not only filed a counter-affidavit of 24 paragraphs dated 3/7/07 but also filed a Notice of Preliminary Objection on the same 3/7/07 to the appellant’s/applicant’s motion on notice.

The appellant’s Written Address in support of motion for stay of proceedings pending appeal dated 31/7/07 was filed on 7/8/07. The Written Address of plaintiffs/respondents (incorporating preliminary objection dated 13/9/07 was filed on 18/9/07.

I will start this Ruling by a consideration of the plaintiffs’/respondents’ Notice of Preliminary Objection.