Cyril C. Okehi V. International Equitable Association (Industrial and Commercial) Limited (1997)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A. 

Plaintiff now respondent in the interlocutory appeal brought an application in this court by way of preliminary objection requesting this court to strike out this appeal for lack of jurisdiction as no competent appeal is pending in this court, he is hereinafter referred to in this ruling as the applicant. The motion was on notice to the defendant now appellant in the interlocutory appeal but now respondent on notice of the interlocutory motion to strike out the interlocutory appeal, henceforth the defendant/appellant is referred to in this ruling as respondent. Owing to the nature of the application, parties were directed to submit written submissions and each party filed written submission on 28th January, 1977 and 14th February, 1997 respectively.

Applicant claimed in conclusion of his statement of claim as follows:

“WHEREFORE the plaintiff’s claims is for:-

(a) The sum of twenty-one Million Naira (N21,000,000.00) being special damages in that the defendant for several years up to and including the time material to this claim in 1991 negligently discharged industrial waste alkaline effluent into the open gutters of Nicholas Avenue, ABA which waste damaged the sub-soil of the premises of the plaintiff, undermined and destroyed the foundation of the plaintiffs executive mansion beyond tenantable repairs and therefore unfit for human habitation.

(b) Eight million Naira (N8,000,000.000 being general damages for the total damage of the plaintiffs premises at No. 16, NICHOLAS AVENUE, ABA.

(c) Perpetual injunction restraining the defendant by himself, servants, agents and workmen from continuing the discharge of its industrial waste alkaline effluent into the open gutter along Nicholas Avenue Aba.”

Respondent was served with the statement of claim. Learned counsel for the respondent entered appearance for the respondent on 10th March 1993 and filed the statement of defence as shown in pages 8-14 of the bundle of papers used as the record of appeal in this appeal. At page 14 by the endorsement for filing and by treasury receipt dated 11th May 1993 the statement of defence is deemed to have been filed in the high court registry, on 11th May, 1993.

At page 15 of the record dated 22nd June 1993 fixed for hearing on 30th June, 1993 was a motion on notice for an accelerated hearing of this suit. Page 17 of the record of appeal is reply to the statement of defence of the Respondent dated 29th September, 1994 filed on 14th October, 1994.

On the 20th of May, 1996 the matter came before Aba High Court with coram as Hon. Justice I.F. Ogbuagu. The record of proceedings as to what transpired that day are recorded at pages 24-25 and the imbroglio was as to the validity of the reply to the statement of defence. The learned trial Judge is recorded as follows:

“This court is a very busy one. The case will be adjourned to enable Mr. Anyanwu find out from the Registry the date of service on him or his client of the defendants’ statement of defence. He may then consider bringing a formal application for extension of time as the court does not grant such motions as a matter of course.

Although the purpose of granting accelerated hearing of Ibis case is defeated, but issues of law are not one which the court will brush aside on the ground of expediency. It is adjourned to 17th, 23rd and 25th July 1996 for hearing. It shall be called up first on any of these dates as soon as the court starts sitting.”

The Respondent being dissatisfied with what transpired at the High Court of Abia High Court holden at Aba on 20th May 1996 filed a notice of appeal in this court wherein in paragraph 3 of the notice of appeal raised two grounds of appeal and furnished the particulars. The grounds of appeal without their particulars are set below.

“3 GROUNDS OF APPEAL