Ekwerekwu V. Egboche (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMMIRU SANUSI, J.C.A. (Delivered by the Leading Judgment)

At the Chief Magistrate Court Onitsha. (hereinafter called the trial Court) the respondent as plaintiff’ thereat, instituted an action against the present appellant as defendant thereat claiming the under-mentioned reliefs:

“(a) Possession of the three bedroom flat with premises and appurtenances situate at No.50A Water Works Road, Onitsha.

(b) Mesne Profit at the rate of N5,000.00 (five thousand Naira) only per month from July 2005 until possession is given.

(c) An order directing a refund of the sum still outstanding, to the defendant by the plaintiff as at the time possession is given up, after deducting all mesne profits up to date.”

When served with the plaint of the plaintiff the defendant, now appellant filed a Preliminary Objection by way of motion on notice challenging the jurisdiction of the trial court to entertain and determines such suit. The plaintiff (now respondent) responded to the motion raising Preliminary Objection by filing counter affidavit. The motion was later argued before the trial court by the parties and the trial Chief Magistrate in the end upheld the objection and ruled that she had not jurisdiction to entertain and determine the suit.

Dissatisfied by the ruing of the trial court’s declining jurisdiction to hear and determine his suit, the respondent successfully appealed to the High Court of Justice of Anambra State (hereinafter referred to as ‘the lower court). The lower court coram, Nwadi J., allowed the appeal and decided that the trial court had jurisdiction to entertain and determine the suit and remitted same to the trial court to hear and determine the suit. Aggrieved by the decision of the lower court, the appellant now appealed to this court by filing a Notice of Appeal dated 13th December, 2007 containing three grounds of appeal.

Before this court, briefs were filed and exchanged in keeping with the rules and practice of this court. The appellant’s brief of argument dated 15th May, 2008 and filed on 16/5/2008 was deemed filed on 10/2/2009. Therein, two issues for determination of the appeal were proposed which read thus:-

“(i) Whether the learned trial Judge was right in holding that the trial Magistrate was not entitled to look at any other document except the claim in deciding whether or not she had jurisdiction?

(ii) Whether the learned trial Judge was right to uphold an appeal not based on the issues considered by the Magistrate Court?”

It needs to be stated here that upon being served with the respondent’s brief or argument in which the latter argued a notice of preliminary objection therein which he had filed earlier, the appellant also filed an appellant’s Reply Brief on 24/2/2009 dated 23/2/2009.

Upon being served with the Appellant’s Brief of Argument in response filed Respondent’s Brief of argument on 18/2/2009, dated same day. In the said brief of argument, the respondent also raised two issues for the determination of the appeal. The said dual issues are:

“(a) Whether the appellant High Court was right In holding that the trial Chief Magistrate was entitled to look at any other document except the claim in deciding whether or not she had jurisdiction?

(b) Whether the Preliminary Objection by the appellant at the Magistrate Court had merit and whether the judgment of the appellant (sic) High Court was based on the issues canvassed at the trial court?”