Hitech Construction Company Limited V. Jude Ude & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A.: (Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court in a ruling delivered by HON. JUSTICE M. H. KURYA on the 10th day of March, 2014 wherein the Lower Court granted the Respondents leave to amend their writ of summons in terms of substituting the 1st to the 12th plaintiffs with their personal representatives and guardians. The writ was taken out in the names of the deceased victims of the fire incident occasioned by the Appellant.

The Appellant, via a notice of preliminary objection challenged the jurisdiction of the Court to hear the application having been brought by deceased persons. The application for amendment and the preliminary objection were taken together and the trial Court granted the application for amendment but in the ruling, no mention was made of the preliminary objection though the Court indicated that the Appellant filed a counter affidavit when none was filed.

?The Appellant not satisfied with the said ruling filed a Notice of appeal dated the 19th day of March, 2014 and filed on the 20th March, 2014 setting out 3 grounds of appeal,

the Appellant filed his brief of arguments dated the 16th April, 2014 filed on the same date. The 1st to 12th Respondents filed their Respondents Brief on the 18th May, 2014 and dated on the same day but deemed on the 25th June, 2014. The 13th and 14th Respondents did not file any brief.

The Appellant in its brief of arguments distilled two issues for determination as follows:

1. Whether the failure of the trial Court to consider or pronounce on the Appellants preliminary objection dated 11th day of November 2013 in its ruling of the 10th March 2014 constitutes a denial of the Appellant’s right to fair hearing.
2. Whether the learned trial Judge was right when he entertained and granted the 1st to 12th Respondents application for leave to amend the writ of summons and statement of claim.

On their part, the 1st to 12th Respondents also formulated 2 issues for determination thus:

1) Did the Court below consider the substance of the Appellant’s Preliminary Objection (dated 11th November, 2013) in the Ruling dated 10th March, 2014 before leave was granted to the 1st to 12th Respondents to amend their writ of summons and statement of claim?

2) Whether the Court below

exercised its discrection judicially and judiciously in granting the 1st to 12th Respondents motion dated 30th October 2013 for Amendment of writ of summons and Statement of claim?

The Court shall adopt the issues formulated by the Appellant for determination in this appeal.

ISSUE ONE:

Whether the failure of the trial Court to consider or pronounce on the Appellant’s preliminary objection dated 11th day of November 2013 in its ruling of the 10th March 2014 constitutes a denial of the Appellant?s right to fair hearing.

Appellant counsel submitted that though it was clear from the Court records that the Appellant counsel moved his preliminary objection dated 11th November, 2013, no reference was made to it in the Court’s ruling and that this amounted to a breach of the Appellant’s right to fair hearing, relied on ONYEKWULUJE v. ANIMASHAUN [1996) 3 NWLR (Pt.439) 637, TUNBI v OPAWOLE [2000] 2 NWLR (Pt.644) 275. The Appellant further submitted that from the ruling of the Court, it is evident that the Court did not peruse any of the processes filed by the Appellant and that in situations where the right to fair hearing has been crushed, the proceedings cannot be