Dr. Jonathan Cookey V. Mrs. Evangeline Fombo & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiff in paragraph 14 of her statement of claim which superceded the writ of summons, claims as follows:-

“Wherefore the plaintiff claims against the 1st defendant and 2nd defendant jointly and severally for –

(a) Declaration that the purported sale of property situated at No. 155 Niger Street, Port-Harcourt by the 1st defendant to the 2nd defendant is null and void.

(b) An order of court rectifying the said sale.

(c) An injunction restraining the 2nd defendant, his agents, servants or privies from tampering with the said property or any part thereof.”

The defendants filed their statement of defence separately. The 2nd defendant counter-claimed against the plaintiff.

Thereafter the 2nd defendant by motion on notice prayed the court for the following reliefs.

“1. An order setting down for hearing the point of law raised by the 2nd defendant in paragraphs 15(i) and (ii) of his , statement of defence before trial;

2. An order dismissing the plaintiff’s action; further and in the alternative
3. An order discharging the interim order for stay of further proceedings made in this case in respect of suit No. PRT/878/92 between Dr. J. A. Coo key v. Mrs. Evangeline Fombo. And further take notice that the grounds for this application are as follows:-
4. The bundle or aggregate of facts or factual situation on which the plaintiff relies to support her claim as stated in paragraphs 14(a), (b) and (c) of her statement of claim is the recommendations of Major David Mark’s Committee on the Implementation of Abandoned Property as stated in paragraph 14 of the statement of claim.
5. The said recommendations remains a mere recommendation and nothing more. It cannot be elevated to the status of a decree, edicts and/or law. It is at most binding in honour and has no binding force of law.
6. The said recommendations has not created in the plaintiff any legally enforceable right for which she could seek to enforce by an action and consequently this suit does not disclose any reasonable cause of action known to law.
7. The interim order for stay of further proceedings in PRT/878/92 was made to last for a short period. The return date was 14/12/94 for hearing of the motion on notice. The plaintiff has since then not taken any positive step to ensure the diligent prosecution of the motion on notice.”

The motion was supported by an affidavit of 13 paragraphs.

The plaintiff filed a counter-affidavit of 4 paragraphs only. The application was argued and ruling reserved. In a considered ruling the learned trial Judge allowed the 2nd defendant’s application and granted all the reliefs sought by the applicant in the motion.

Dissatisfied with the ruling of the High Court, the plaintiff” appealed to the Court of Appeal holden at Port-Harcourt. In a unanimous judgment, the Court of Appeal allowed the appeal, set aside the ruling of the High Court and remitted the case back to the High Court of Rivers State for retrial by another Judge.

Aggrieved by the decision of the Court of Appeal, the 2nd defendant has now appealed to this court. In obedience to the rules of court, the pm1ies filed and exchanged briefs of argument which were adopted by counsel at the hearing on 22/2/2005.

In the amended appellant’s brief the following two issues were submitted for determination in this appeal:-