Chief Bright Onyemeh &ors Vs Lambert Egbuchulam & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, JSC. 

In the High Court of Imo State holden at Owerri, the plaintiffs sued the 1st to 3rd defendants for a declaration that they are entitled to the grantor issuance of allocation papers in respect of lock-up market stalls in their possession; an order of court directing the 1st to 3rd defendants to regularise the allocation of the stalls to the plaintiffs, and an injunction restraining the 1st to 3rd defendants, their servants, agents or privies from interfering with the plaintiffs’ possession of the said market stalls.

Soon thereafter the 4th to 9th defendants by motion on notice applied to the court to be joined as co-defendants. The 1st to 3rd defendants opposed the application and filed a counter-affidavit. Arguments on the motion for joinder were heard and the learned trial Judge in a reserved ruling set out on pages 164 to 178 of the record, refused the application and dismissed same.

Aggrieved by the Ruling of the High Court, the 4th to 9th defendants appealed to the Court of Appeal, Port Harcourt Division. The Notice of Appeal is to be found on pages 179-184 of the record. There are only three Grounds of Appeal contained therein. In obedience to the Rules of Courts the parties filed and exchanged briefs of argument. These are to be found on pages 199-232 of the record.

Before the appeal was fixed for hearing, the plaintiffs filed a Notice of Preliminary objection to the appeal lodged against the Ruling of the High Court by the 4th to 9th defendants vide pages 193-195 of the record, contending that the purported appeal was incompetent and ought to be struck out because the Grounds of Appeal were on facts, or mixed law and facts which required leave and that the 4th to 9th defendants had not obtained any leave.

At the hearing of the appeal on 26/2/92 the plaintiffs sought and were granted leave to argue the preliminary objection first. There was no objection from the other side. Arguments on the preliminary objection were then entertained by the court and Ruling reserved to 27/4/92. The Ruling was finally delivered on 27/5/92 as contained on pages 239-258 of the record. But the Court of Appeal rather than ruling on the preliminary objection as to whether the appeal lodged before it was competent or incompetent, proceeded to deliver judgment in the appeal which it had not heard and allowed the appeal in its entirety. The Court of Appeal set aside the ruling of the High Court and ordered the 4th to 9th defendants to be joined as co-defendants in the suit.

Dissatisfied with the judgment of the Court of Appeal, the plaintiffs have appealed to this Court. Three grounds of appeal were filed. Briefs of argument were filed and exchanged by the parties. Mr Nwaiwu learned counsel for the plaintiffs has submitted in his brief three issues for determination in the appeal as follows –

1. Was the objection taken against the competence of the appeal in the court below proper’?
2. Was the Court of Appeal right in not deciding whether the appeal before it was competent or not?
3. Was the Court of Appeal right in deciding the substantive appeal without giving the appellants a hearing on same?

On Issue (1) learned counsel Mr Nwaiwu referred to the judgment of the Court of Appeal on page 257 of the record where Ndoma-Egba. J.C.A. reading the leading judgment said “The preliminary objection to the grounds of appeal is with respect, flimsy. It could hamper the early determination of this matter and in the end consolidate the position of the plaintiffs/respondents in respect of possession of the lock-up stores before the substantive suit is finally determined”

and submitted that the preliminary objection related to the competence of the appeal and as a threshold issue it cannot be described as flimsy in that where the grounds of appeal are found to be incompetent the Court of Appeal would lack the necessary requisite competence to adjudicate in the appeal.

That want of competence is not a mere irregularity which can be cured by consideration of the main appeal in advance as was done herein or by way of speedy trial. He said the appeal before the Court of Appeal was not only interlocutory but that the Grounds of Appeal were of facts and of mixed law and facts and that leave to appeal was not obtained. In addition he said the Grounds of Appeal contravened the provision of Order 3 Rule 2(2)-(4) of the Court of Appeal Rules, 1981 as they failed to state or specify the particulars of error or misdirection. He said the preliminary objection to the competency of the appeal in the court below was not therefore flimsy but necessary because the appeal was incompetent.

Mr Ojiako learned counsel for the 1st-3rd defendants argued that the appeal before the Court of Appeal was from a final and not an interlocutory decision of the High Court and consequently leave to appeal was not necessary and that the Court of Appeal was right to have described the preliminary objection as flimsy.

Mr Uwazuruonye learned counsel for the 4th-9th defendants also said the decision of the High Court was final and as such leave to appeal was not required. The preliminary objection was therefore flimsy as stated by the Court of Appeal. With due respect to both Mr Ojiako and Mr Uwazuruonye I must say at once that the Court of Appeal never stated in its judgment that the decision of the High Court was either final or interlocutory. The Court of Appeal did not also state anywhere whether leave was required or not.

Be that as it may, I think the issue of whether the preliminary objection before the court below was proper or not would in my view depend on a number of factors. For example – Is the objection permitted by the Rules of Court? Is the decision of the High Court appealed final or interlocutory? Are the Grounds of Appeal grounds of law, facts or mixed law and facts? Has the application any merit? Because of the order which I intend to make finally in the judgment it would be premature and improper for me to make any pronouncement one way or the other now. This being an interlocutory matter, I must avoid making any observation in the appeal which might appear to pre-judge the issues in the proceedings relative to the appeal. (See Mortune v. Gambo (1979) 3-4 SC 54. Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39. The Court of Appeal ought to be given the opportunity first to decide whether or not the preliminary objection is properly made which in normal circumstances it can only do after listening to the parties.

I therefore decline to answer issue (1). I know in the judgment cited above, the Court of Appeal described the preliminary objection as “flimsy” simply because it thought the objection would hamper an early determination of the suit. I fail to understand how the plaintiffs’ preliminary objection, rather than the 4th to 9th defendants’ appeal, would hamper an early determination of the suit. I say no more on that.