Alhaji Akanji Junaid V. Abacus Securities Ltd & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

The Appellant/Applicant herein by his writ of summons dated 24th of July 2000 and a statement of claim dated 17th July 2000, claims from the Respondents jointly and severally the sum of N3,100,000.00 (Three Million and One Hundred Thousand Naira) together with interest thereon at 21% per annum from February 1995 to judgment and final liquidation at the High Court of Lagos State (Henceforth to be referred to as the lower Court). While the suit was pending the 2nd Respondent filed a motion on notice dated 31st of May 2002 at the lower Court in which he prayed for the following reliefs: –

“1. An order striking out the second defendant’s name from the Writ of Summons and such other places it appeared in this suit, for misjoinder/wrongly (sic) joinder of parties.

2. An order setting aside the Writ of Summons and statement of claim filed in this suit as it disclosed no cause of action against the 2nd Defendant herein.”

This application was heard and in a considered ruling which was delivered on the 27th February 2004, Oyekan-Abdullahi J. struck out the 2nd Defendant’s name from the suit on the ground that no cause of action was disclosed against him.

The Appellant is unhappy and aggrieved with that ruling and has filed a notice of appeal dated and filed on the 6th April 2004. Flowing from the notice of appeal aforesaid, the Appellant has brought this application dated and filed on the 27th September 2006 in which he prayed for the following reliefs: –

“1. An order of this Honourable Court granting the Appellant/Applicant leave to amend the grounds of appeal contained in the notice of Appeal dated and filed on 6th April 2004 against the decision of the High Court of Lagos State dated 27th February 2004 by adding thereto an additional ground of appeal No. (2) as set forth in the amended Notice and Grounds of appeal exhibited in the affidavit filed herewith.

2. An order of this Honourable Court deeming the amended notice and grounds of appeal filed herewith to have been duly filed and served.”

When this application came up for hearing on the 20th November 2006, Mr. C. A. Nwosu, learned counsel for the Respondents indicated that he would be raising objection to the hearing of the application on the ground that the appeal itself is incompetent. He however allowed the applicant to move the application before the preliminary objection.

Mr. Alionye, learned counsel for the Applicant identified the applicant’s application which is supported by a 10 paragraphs affidavit and two exhibits, namely, the original notice of appeal and the amended notice of appeal which are marked exhibits 001 and 002 respectively. He relies on all the paragraphs of the affidavit and the exhibits and urged the Court to grant the application.

At this stage, Nwosu Esq. of counsel to the Respondent submitted that the appeal itself is incompetent as such the ground of appeal cannot be amended. In a further argument, learned counsel submitted that the appeal before the Court is an interlocutory appeal which, by section 25 of the Court of Appeal Act 2004, ought to have been brought within 14 days. Failure to file the appeal within 14 days has rendered same a nullity. Learned counsel finally urged this Court to dismiss both the appeal and the motion.

In reply Alionye Esq. of counsel to the applicant submitted that at the lower Court, the Applicant sued several defendants and the Court gave judgment that there was no cause of action against one of them. By that judgment, learned counsel further submitted, the 2nd Respondent ceased to be a party to the suit and the applicant no longer had any remedy against him. In support learned counsel cited Western Steel Works Ltd v. Steel Workers Union of Nigeria (1986) 6 SC 35 at 52-54.

Finally counsel urged the Court to grant the application and dismiss the Respondent’s objection.

The procedure for raising a preliminary objection to the hearing of appeal is provided for by Order 3 rule 15 (1) of the Court of Appeal Rules 2002. This Order provides as follows:-

“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”

The basis of the objection to this application is the alleged incompetence of the appeal itself. The Applicant’s objection is not in conformity with the provision of Order 3 rule 15 (1) of the rules of this Court. I would have declared the objection incompetent, if same is not challenging the jurisdiction of this Court to hear the application. Once the competency of a procedural step is challenged, it means that the jurisdiction of the Court to determine the procedural step is put in issue. It is therefore fundamental for the Court to consider the issue of jurisdiction, when it is put before it as doing otherwise when it has no jurisdiction will render the exercise a nullity. See Amoo v. Alabi (2003) 12 NWLR (pt. 835) 537.