Balami Peter N. & Ors. V. Nigerian National Petroleum Corporation & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This Appeal is against the Judgment of the Federal High Court, Abuja delivered on 11th July 2007 by-Hon. Justice A.J. Chikere.

The brief fact of the case is that the Appellants/Plaintiffs are retirees/occupants of flats in the NNPC Housing Estate, Arthur Unegbe Street, Area II Garki, Abuja, FCT; which was to be sold pursuant to the Federal Government’s policy of sale its houses.

The Defendants/Respondents on the 15th day of June 2006, published to the plaintiffs/Appellants a notice of conditions to be met by the Plaintiff/Appellants to qualify then to purchase their respective flats at the reserved rates, which conditions the Plaintiff/Appellants alleged they met.

At the commencement of issuance of offer letters to occupants of the flats in the estate, the Plaintiff/Appellants alleged that they were sidelined by the Respondent in a bid to punish and victimize them for actively involving in petitioning the President of the Federal Republic of Nigeria and for participating in an earlier suit no. FCH/ABJ/CS/04/2006, which consequently forced the Defendants/Respondents to sell the Estate. The Plaintiff/Appellants instituted this suit at the Federal High Court. The 1st Respondent by a Motion on Notice dated 16th May, 2007 sought the following Orders:

“1. An Order dismissing or striking out the Plaintiffs’ claims in this suit, it being an abuse of the process of this Honourable Court, as well as incompetent.

2. An Order striking out the names of the 1st, 3rd, 5th, 6th, 7th, 8th, 9th and 10th Plaintiffs as parties to this suit before this Honourable Court.”

On 11th July, 2007, the trial Court upheld the submission of the 1st Respondent and struck out the Plaintiff/Appellants suit in its entirety for failure to comply with the provisions of Section 12 of the NNPC Act Cap 123, LFN 2004. Being dissatisfied with the Judgment the Plaintiff/Appellants filed an Appeal dated 11th July, 2007.

The Appellants’ Brief of Argument was dated 30th October, on 2nd November, 2007 whilst the 1st Respondent’s Brief of Argument dated 9th April, 2009 was filed same day. The 2nd and 3rd Respondents’ Brief dated 30th May, 2008 was deemed filed on 26th March, 2008. The Appellants filed on 20th April 2009 . Reply dated ,6th April, 2009 to the 1st Respondent’s Brief of Argument.

Parties have exchanged their various briefs.

Kemi Pinheiro SAN raised a Preliminary Objection in the 1st Respondent Brief of Argument challenging the competence of Ground 3 contained in the Notice and Grounds of Appeal filed and dated 11th July, 2007.

The law is settled that once a Preliminary Objection is properly raised and moved by the Respondent, it should be determined first by the Court before proceeding to consider the Appeal. See Williams v. Ibejiako (2008) 15 NWLR (Pt.1110) page 367 at 380; Bamisle v. Osasuyi (2007) 9 NWLR (Pt.1042) page 225 at 256; U.B.N Plc v. Umeoduagu (2004) 13 NWLR (Pt.890) page 362.

Kemi Pinheiro SAN referred the Court to the Notice of Appeal at pages 242- 245 of the Record and maintained that issue 3 is distilled from Ground 3. The Appellant argued that the trial Court considered the issues of “adequacy and sufficiency” of the pre-action notice.

Learned Senior Counsel submitted that for a Ground of Appeal to be competent, it must constitute on attack on the specific finding contained in the decision appealed against. He stated that the particulars of error or misdirection alleged in relation to a Ground of Appeal should be the specific finding, reasoning and observations in the judgment or ruling.

He asserted that there should be an enumeration of the error in the judgment or ruling. He reared the Court to the case of: