Prince Tom Ikechi Edebor V. Elf Petroleum Nigeria Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the appeal against the Ruling of E.N. Thompson J. of Rivers State High Court sitting in Port Harcourt delivered on 3/06/2005. The defendant in the court below had applied for the dismissal of the action of the plaintiff on the ground that the action was statute-barred. The court below after considering the submissions of learned counsel on both sides dismissed the action on the said ground that the action was statute-barred.

The plaintiff being aggrieved by the Ruling of the trial court filed on appeal to this court on 13/6/2005.

After the transmission of record of appeal to this court the plaintiff now appellant filed his brief of argument which was deemed filed on 15/6/09.

The Respondent, who was the defendant at the court below also cross-appealed. The Respondent subsequently filed Respondent’s/cross-appellants brief.

Counsel for each of the parties filed preliminary objection to the appeal and the cross-appeal respectively.

I shall first deal with the preliminary objections before considering the main appeal.

The arguments on the preliminary objection of the Respondent/cross-appellant to the appeal are incorporated into his brief on pages 25 – 29. The grounds of the Respondents objection are that “the issue as framed and apparently argued are a misnomer and highly imaginable.” The objection of the Respondent is well captured on page 26 of his brief where the submitted as follows:

“It is from this ground that issue No.3 – whether there are any facts in dispute to be established by evidence in this suit – was framed.

In our view, there is a fundamental difference, immediately noticeable, in what, on the one hand, the Ground of appeal complains about, or what it attacks, and what, on the other hand, the issue from which it is supposedly framed highlights. Whereas the complaint in the ground of Appeal is that my lord of the court below held that “for the purpose of determining the ‘objection’, there is no need to call evidence”, the issue 3 formulated form it questions whether, “in this suit” as opposed to ‘the objection’ whether there is any fact in dispute that needed to be established by evidence,

My lords, the difference between the objection and the suit are too, too fundamental to be ignored in that:

1. The learned trial court did not state that there was no need to call evidence in the suit;
2. This is not an appeal against the entire suit per see, as there was no hearing.

There is therefore, no correlation between the Ground of Appeal and the issue which ought to highlight and mirror the ground. In a long line of cases, the appellate courts have warned that ‘while Grounds of Appeal highlight the error being sought to be corrected in the judgment, the issues or question for determination emphasise the kernel of the reason for seeking the error.”

The appellant is his reply brief on page 8 relied as follows:

“The appeal the appellant brought before this Honourable court is not against the objection but on the entire suit. The suit was only determined through an objection. There is no other live issue or matter in respect of this suit that is still pending before the trial court. This appeal is not an interlocutory appeal, it is a substantive appeal. So whether “objection” is used or “in this suit” is used, the same refers to the suit since the same had been determined by the trial court through an objection.”