Dr. B.U. Okafor V. Attorney-general Of Rivers State & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T. O. AWOTOYE J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of J.N Ogbuji J. of High Court of Rivers State delivered on 27/10/2009.

The appellant had on 16/3/2009 at the court below instituted an action through his lawful attorney Ben Ikeh against the Respondent the defendant without filing their defence filed a preliminary objection urging the court to strike out the suit for lack of jurisdiction.

The trial court in its ruling delivered on 27/10/2009 held that the power of attorney annexed to the statement was not authenticated to show due execution and therefore the appellant had no locus standi to prosecute the suit and so struck the suit out.

The appellant being aggrieved appealed to this court vide his Notice of Appeal filed on 25/01/2010. The Notice of Appeal contains 3 ground of appeal which are as follows (shorn of their particulars)

“GROUND OF APPEAL

i. The learned trial judge erred in law and this had led to a gross miscarriage of justice when he held that the power of attorney donated by the Appellant was defective and appellant thereby has no locus standi to commence the suit against the defendants.

ii. The learned trial judge erred in law and violated the appellant’s right to fair hearing when he struck out the appellant’s claims based on the defendants’ preliminary objection to the power of attorney by which the suit was instituted.

iii. The learned trial judge erred in law and this has led to gross miscarriage of justice when he struck out the appellant’s claims upon the preliminary objection of the defendants which had not filed their statement of defence.

iv. other grounds of appeal may be filed on receipt of records of appeal.”

After transmission of record of appeal parties filed and exchanged brief of argument.

The appellants brief was settled by their counsel E. B. Ukiri. He formulated one sole issue for determination to wit:

“GROUND OF APPEAL

Whether a court can properly determine the validity of a document which had not been tendered by any of the parties (sic) as exhibit before the court nor produced to the court where judicial notice is permissible. He urged the court to set aside the Ruling of the lower court because;