Alfa Saka Salami V. Alhaji Mohammed Jodi Magaji Muse Family (2019)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Kwara State, Ilorin Judicial Division, [the trial Court, for short], the respondent in this appeal, [as Claimant], sought declaratory and injunctive reliefs against the appellants herein [as defendants]. In particular, they claimed ownership of the parcel of land at Lao Gbagba village, off Ilorin Airport, Ilorin, Kwara State.

Having lost the case at the trial Court, the respondent approached the Court of Appeal, Ilorin Division, [the lower Court, for short], which said Court allowed his appeal and set aside the trial Court’s judgement. The lower Court equally granted the respondent’s principal and ancillary claims. This appeal is, therefore, the appellant’s expression of his dissatisfaction with the lower Court’s judgement.

The appellant formulated four issues for the determination of his appeal. On his part, the respondent endorsed the appellant’s four issues. However, he greeted the appeal with a preliminary objection on two grounds.

I will therefore dispose of the two grounds of the preliminary objection before turning to the four issues

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(if necessary). This must be so for a preliminary objection is a pre-emptive strike; its resolution will determine the question whether or not the appeal will be determined on the merit, Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F.

Indeed, that is why I am under obligation to resolve the issues agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v Ibiang [2002] 10 NWLR (pt. 776) 455, 468; UBA Plc v ACB [2005] 12 NWLR (pt 939) 232; Goji v Ewete [2001] 15 NWLR (pt 736) 273, 280.

Once this preliminary objection on the competence of this appeal succeeds, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ahaneku v. Ekeruo (2002) 1 NWLR Pt. 748) 301, 30; NPA v. Eyamba [2005] 12 NWLR (pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (pt 1006) 504, 521-2.

RESPONDENT’S PRELIMINARY OBJECTION

As indicated earlier, the respondent greeted the appellant’s appeal with a preliminary objection.

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This was argued at paragraphs 4.0 – 5. 08 of the respondent’s brief, pages 4 – 11. The two issues were couched thus:

A. The case of the appellant at the trial Court is fundamentally defective and or incompetent for having been premised on a non-existent pleadings or Statement of Defence.