Hadiza Bello & Anor V. Hapsatu Sajo (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the leading Judgment)

This is an appeal against the decision of the Adamawa State High Court of Justice Yola, sitting in its appellate jurisdiction in appeal No. ADSY/4A/2012 from Upper Area Court 3, Yola. The judgment was delivered on 21st September, 2012 wherein the lower court affirmed the decision of the Upper Area Court No. 3, Yola.

The facts giving rise to this appeal, can be summarized as follows: The 1st appellant as plaintiff commenced an action against the respondent as defendant, before the Civil Area Court No. 2 Jimeta. The substance of the complaint before the court was that there was an outlet of waste water from the defendant’s toilet, passing in the frontage of the plaintiff’s room, thereby causing nuisance and pollution to the plaintiff. The Civil Area Court gave judgment in favour of the plaintiff now 1st appellant, and the defendant now respondent was ordered to block the outlet within two weeks.

The defendant now respondent appealed against the said decision to Upper Area Court No. 3, Yola. On appeal, the decision of the trial Area Court was reversed. The Upper Area Court made an order against the 2nd Appellant, though not a party to the case, banning him from visiting the house where his wife the 1st appellant was staying. Dissatisfied with the decision of the Upper Area Court, the 1st appellant appealed to the Adamawa State High Court of Justice, Yola. The appeal was dismissed by the Adamawa State High Court of Justice Yola and the decision of the Upper Area Court affirmed.

Aggrieved by the decision of the Adamawa State High Court of Justice Yola, the 1st appellant sought for leave to appeal against the judgment. The said leave was granted by this court on the 26th February, 2014. Pursuant to the said leave, the 1st appellant notice of appeal was filed on 4th March, 2014. The said notice of appeal is predicated upon five grounds appeal.

The 2nd Appellant applied for leave to be joined as an appellant in this appeal. In compliance with the Rules of Court, briefs of argument were filed and exchanged. The appellants brief of argument is dated 7th May, 2014 and filed on the 8th May, 2014. The appellants Reply brief is dated and filed 30th June, 2014. The respondent’s brief of argument is dated and filed 9th June, 2014.

On the 30th June, 2014 the date fixed for hearing the appeal, Mr. Mohammed Abubakar leading Miss. Rahimat Abubakar for the respondent, sought for and was granted leave to move the preliminary objection filed by the respondent. Learned counsel stated that the preliminary objection is anchored upon three grounds and argument in respect of same contained on pages 4 to 11 of the respondent’s brief.

Learned counsel adopted pages 4 to 11 of the respondent’s brief as his argument in respect of preliminary objection and urged the court to strike out the appeal. Mr. Mahmud Ahmed for the respondent, stated that they responded to the preliminary objection in the Appellants reply brief dated and filed 30th June, 2014. Learned counsel adopted the appellants reply brief and relied on the argument contained therein as his response to the preliminary objection and urged the court to dismiss same.

On the main appeal, the learned counsel for the appellants adopted the appellants brief of argument as their argument in this appeal and urged the court to allow the appeal and set aside the judgment of the lower court. The learned counsel stated that the appellants distilled two issues for determination from the five grounds of appeal. The learned counsel for the respondent adopted pages 11 to 16 of the respondent’s brief of argument in urging the court to dismiss the appeal. Learned counsel stated that they adopted the two issues for determination formulated by the appellants.

The two issues for determination formulated by the appellants as contained on page 2 of the appellants brief of argument are as follows:

“1. Whether the learned High Court Judge was right to uphold the decision of the Upper Area Court, when both Appellants were not heard and the 2nd Appellant was not even a party before the Court.

2. Whether the learned High Court Judge was right uphold the decision of the Upper Area Court which deviate from the substance of appeal before it and held that the 1st Appellant lacks locus standi to institute this action”

As earlier stated in this judgment, the respondent adopted the two issues for determination nominated by the appellants. See pages 11 and 12 of the respondent’s brief of argument.

The respondent having raised a preliminary objection, same will be considered first. The rationale for taking it first is because it is challenge to the hearing of the appeal and where it succeeds there will be no need to go into the merits of the appeal. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314, N.E.P.A. v. Ango (2001) 15 NWLR (Pt. 737) 627.

PRELIMINARY OBJECTION