Obaseki Iyawere & Anor V. Andrew Omoh & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Edo State High Court, Sabongidda-Ora Judicial Division, (hereinafter referred to as the lower Court), sitting in its appellate jurisdiction, delivered by G.O. Imadegbelo J., on 24th April, 2007 in Suit No. HAF/1A/2005.

The brief background facts of this matter are that, the Respondents herein were plaintiffs at the owan west Area customary court, Sabongidda Ora where they lost to the Appellants as defendants. The judgment of the said Area Customary Court was delivered on 17th June, 2004. The Respondents appealed to the lower court against that decisions vide a notice of appear dated 18th June, 2004. The Respondents after filing additional grounds of appeal fired an application supported by an affidavit, to correct the record of proceedings of the Area customary court already transmitted to the lower court. The Appellant opposed the application by filing a counter affidavit.

Learned counsel for both parties addressed the lower court in support of and against the issue of amendment of the said record.

In his considered ruling of 24th April, 2007, the learned trial Judge refused the application to amend the record of proceedings, instead, he remitted back the suit to be retried de novo before another panel of the Area Customary Court. The ruling is contained in pages 44 to 45 of the record of appeal.

The Appellants were dissatisfied with the said ruling and appealed against it to this Court vide a notice of appeal dated 25th April, 2007, containing two grounds of appeal. The two grounds of appeal with their particulars are contained in pages 25 to 26 of the record of appeal.

In line with the rules of practice and procedure of this Court, parties filed and exchanged briefs of argument. The Appellants’ briefs were settled by learned A.K.M. Imiewarin. The Appellants’ brief of argument is dated 25th February, 2008 and was filed on 28th February, 2008.

The brief of argument of the Respondents was settled by learned K.O. Ojemeri. The Respondents’ brief of argument dated 9th February, 2010 was deemed to have been properly filed and served on 4th March, 2010.

Further to the Respondents’ brief of argument, the Appellants’ learned counsel filed an Appellants’ Reply brief of argument. It is dated and was filed on 12th March, 2010.

The Respondents had earlier on filed a notice of preliminary objection challenging the competence of this appeal. The said preliminary objection of the Respondents is dated 22nd October, 2009 but was filed on 26th October, 2009.

The preliminary objection is that, this Court lacks the jurisdiction to hear and determine this appeal. It is predicated on two grounds. The two grounds state thus:

1. This appeal is against the ruling of the High Court of Justice, Sabongidda Ora sitting as an appellate court.
2. The Appellants did not seek leave of the Court below to appeal against its ruling before filing this appeal by virtue of Section 242 of the Constitution of the Federal Republic of Nigeria, 1999.

The arguments in support of the preliminary objections are contained in paragraphs 3.0 to 3.10 at pages 2 to 4 of the Respondents’ brief of argument.

At the hearing of this appeal, learned counsel for the respective parties took their turns to identify, adopt and rely on the briefs of argument. In respect of the preliminary objection, the learned counsel for the Respondents urged this Court to uphold the objection and dismiss this appeal for being incompetent. On the other part, the argument of the Appellants in opposing the preliminary objection is contained in paragraph 1 of the Appellants’ reply brief. The learned counsel for the Appellant urged on this Court to dismiss the preliminary objection and proceed to decide this appeal on the merit. In respect of the substantive appeal, while the learned counsel for the Appellant urged on this Court to allow this appeal, the learned counsel for the Respondents urged upon this Court to dismiss this appeal.

In situations like this instant appeal, the proper approach is for this Court to first and foremost consider and determine the issues arising out of the preliminary objection, especially, since the objection touches on the competence of this appeal and the consequent jurisdiction of this Court to adjudicate thereupon. If the preliminary objection succeeds, that will terminate the appeal, but, if it fails, the issues distilled from the grounds of appeal will be taken accordingly. For, the competence of an action and the jurisdiction of court are threshold questions which once raised, must be taken first and decided before considering any other issue.