Hado Nigeria Limited & Anor. V. Chrisbrown International Limited & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The two appellants in these consolidated appeals were respectively and 2nd and 1st defendants in the suit No. FHC/PH /CS/291/2012 at the Federal High Court, Port Harcourt. The plaintiff in that suit is the 1st Respondent herein in the two consolidated appeals.

The Ruling and the judgment, both contained in one document/instrument, were delivered by the said Federal High Court (Coram: Lambo Akanbi, J.) on the same day. That is 4th October, 2012. The two defendants were aggrieved by the ruling and the judgment. Each of them brought his appeal separately. The appeal of the 2nd defendant. Hado Nigeria Ltd, was filed at 1.00 p.m. of 5th October, 2012. The 1st defendant, on their part, filed their appeal much later at 11.55 am on 8th October, 2012. The two appeals have been consolidated for ease and convenience and were heard on identical Records. For the same ease and convenience I will use the Record in CA/PH/461/2012 – the appeal of Hado Nigeria Ltd.

The consolidated appeals were argued on 22nd April, 2013 on the briefs exchanged by the parties. The 1st Respondent in both appeals did not file his brief in time. In each of the appeals he brought an application on 19th April, 2013 for extension of time within which to file the 1st Respondent’s Brief and an order deeming same as duly filed and served. The appellants, very anxious to avoid further delays, did not oppose the applications, which were each granted as prayed on the 22nd April, 2013. For each appeal the 1st Respondent’s Brief, filed on 19rh April, 2013, was deemed filed and served on the said 22nd April, 2013.

Because of the precedence among counsel and Mr. Oladejo Lamikanra, being a Senior Advocate of Nigeria and the Counsel to the Appellant in the appeal No. CA/PH/461/2012, the said appeal (CA/PH/461/2012) was first argued.

In the 1st Respondent’s Brief of Argument filed on 19th April, 2013 there is a notice of preliminary objection and the submissions thereon contained in paragraphs 2, 3 and 4 at pages 2 – 6 of the said brief. Upon the Counsel to the 1st Respondent, Mr. Dike, moving the preliminary objection; Lamikanra SAN for the appellant protested the competence of the preliminary objection. The contention of the senior counsel is that the preliminary objection, having not been filed giving the Appellant three (3) clear days, was a flagrant violation of Order 10 Rule 1 of the Court of Appeal Rules, 2011.

Order 10 Rule 1 provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection, and shall file such notice together with twenty copies thereof with the registry within the same time. This provision, designed to enhance the right to fair hearing, particularly audi alteram partem, is mandatory. While nothing may be wrong, in law, for the respondent to raise the preliminary objection in the respondent’s brief and argue the same therein, as that has been considered to be economical to all concerned, including the Court; it is mandatory for the respondent to file the preliminary objection as stipulated by Order 10 Rule 1. Apart from the respondent giving “the appellant three clear days notice” of the preliminary objection, he must file the notice of the preliminary objection.

As this Court observed in MOYOSORE v. GOV. KWARA STATE (2012) 5 N.W.L.R. (Pt. 1292) 242; it is the filing fee that gives legitimacy or validity to the notice of preliminary objection, or any court process for that matter, unless such fee was waived. I adopted this reasoning in ENGR. IBEABUCHI v. IKPOKPO (unreported CA/PH/406/2009 of 16th January, 2013.).

Since it accords with the statement of the law espoused by the Supreme Court as to when a Court is competent to assume jurisdiction over any matter or process in the celebrated MADUKOLU v. NKEMDILIM (1962) 1 All NLR 587 at 593. Among the imperatives as to when the case, in this case the notice of preliminary objection, is competent for the court to exercise its jurisdiction over is when the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Without much ado, payment of the filing fee in accordance with Order 12 Rule 1 of the court of Appeal Rules, 2011 is a condition precedent for any valid notice of preliminary objection.

In additionOrder 10 rule 1 enjoins the respondent relying on a preliminary objection to give the appellant not less than three clear days before hearing date. This allows the appellant to prepare adequately for the objection. From all I have been saying this notice of preliminary objection contained in paragraphs 2, 3 and 4 of the 1st Respondent’s Brief is incompetent and it is hereby struck out. The 1st Respondent paid no filing fee therefore, apart from its being filed in flagrant disobedience of Order 10 rule 1 of the Court of Appeals, Rules 2011.

The preliminary objection and the arguments thereon are contained in paragraphs 2 and 3 at pages 5 – 8 of the 1st Respondent’s Brief in the appeal No. CA/PH/460/2012. It has all the features of the incompetent notice of preliminary objection in the appeal No. CA/PH/461/2012. For the same reasons given earlier in respect of the identical Notice of Preliminary Objection in CA/PH/461/2012, which reasoning and conclusions I hereby adopt herein, the Notice of Preliminary Objection in the appeal No. CA/PH/460/2012 contained in paragraphs 2 and 3 at pages 5 – 8 of the 1st Respondent’s Brief filed on 19th April, 2013 but deemed on 22nd April, 2013 is hereby struck out.

In the two appeals (CA/PH/461/2012 and CA/PH/460/2012) the parties exchanged briefs which were duly adopted at the hearing on 22nd April, 2013. The 2nd Respondent in the appeal No. CA/PH/461/2012, Hado Nig. Ltd, did not file any brief. He does not contest the appeal.

In the appeal No. CA/PH/460/2012 the 2nd Respondent, Niger Delta Development commission (NDDC), also did not file any brief in the appeal. He does not contest the appeal.