Akwa Ibom Property and Investments Company Limited V. Udofel Limited & Anor (2016)

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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. 

This is in respect of an appeal against the decision of the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division delivered on the 21st May, 2013 by Isangedighi J. affirming jurisdiction in respect of the substantive suit.

?The appellant as 1st defendant, had filed a notice of preliminary objection contesting the jurisdiction of the trial Court to entertain the suit instituted by the 1st respondent against it and the 2nd respondent challenging the implications of a letter of 14th February, 2011 written by the Appellant, in respect of the operations of a certain Daaty Hotel, Uyo, Akwa Ibom State of which the 1st respondent is the owner and proprietor, on grounds that the 1st respondent lacked the requisite locus standi to institute the said suit.

The said objection was duly argued by counsel for the two sides and in a considered ruling delivered as aforesaid on the 21st May, 2013, the learned trial Judge found no merit in the said preliminary objection and accordingly dismissed it with cost. The said suit which was already part-heard prior to the

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filing of the preliminary objection was then adjourned for continuation of hearing.

Dissatisfied, the appellant filed a notice of appeal on the 24th June, 2013 containing 2 grounds.

At the hearing of the appeal, Mr. Ekasah, the learned counsel for the 1st respondent drew attention to his Notice of Preliminary Objection filed on 20th December, 2013 challenging the competence of this appeal on the grounds that being interlocutory in nature and not restricted to pure law, leave ought to have been sought and obtained before the filing thereof pursuant to Section 14 of the Court of Appeal, Act, Cap C36, Laws of the Federation of Nigeria, 2004 and also that it was not filed within 14 days of the delivery of the decision complained against.

The learned counsel adopted the arguments in respect thereof contained in paragraphs 2.1 to 2.5 of the 1st Respondent’s brief filed on 20th December, 2013.

The appellant countered the contentions of the 1st Respondent on the said Preliminary Objection and in this regard, its learned counsel Mr. Idika adopted the arguments contained in paragraphs 1.1 to 1.17 of his Appellant’s Reply brief filed on

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11th February, 2014 but deemed properly filed and served on the 25th April, 2016.

Considering the fundamental implications of the Preliminary Objection for this appeal, it shall be my take off point.

?Arguing the objection, Mr. Ekasah submitted that the grounds of appeal here were not based on pure law but of mixed law and fact in respect of which appeal could not proceed as a matter of right and that failure of the appellant to obtain leave either of the trial Court or of this Court, is fatal to the appeal. He referred to OJEMEN & ORS v. MOMODU 11 & ORS (1983) 14 NSCC 135 at 145.