J. A. N. Elukpo V. Raimi Adinoyi Ibrahim & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Justice, Lokoja, Kogi State delivered by Hon. Justice S. K. Otta on 8th January 2009 wherein the claim of the claimant was struck out for being incompetent having been filed outside the statutory period.

All parties filed their respective briefs of argument. At the hearing of the appeal on 21st November 2012, the appellant’s brief filed on 23rd July 2009 settled by Chief J.A.N. Elukpo, Esq, in person, was deemed filed. The 1st respondents brief of argument settled by Abdullahi M. Aliyu Esq., was also deemed filed. Therein, he gave a notice of preliminary objection in paragraph 3.01 challenging the competence of this appeal, and urged this Hon. Court to strike out the appeal.

The 2nd respondent’s brief of argument dated 3rd of September 2009 and filed on 4th September 2009 was settled by I. O. Alhassan Esq. Both the 2nd respondent and his counsel were absent at the hearing of the appeal; though his counsel was aware of the date of hearing. However, the brief of argument of 2nd respondent was deemed adopted and argued by the court. In the brief of argument, 2nd respondent also raised a preliminary objection, contending that grounds 3 – 12 of the Notice of Appeal are incompetent and therefore should be struck out. The appellant filed a Reply Brief to the Briefs of Argument of the 1st and 2nd respondents on 2nd October 2009. Therein, he also replied to the notice of objection of the 1st and 2nd respondents.

The grounds of the preliminary objection of the 1st respondent are –

“i. Parties did not adduce evidence at the trial court.

ii. The learned trial Judge merely considered the statement of claim in arriving at his decision.

iii. The omnibus ground of appeal (Ground 1) is therefore not available to the appellant.

vi. Ground 2 did not challenge the ratio decidendi of the ruling of the learned trial Judge.

v. Ground 2 is equally incompetent.

vi. Grounds 3 – 12 have been abandoned.

vii. There is no competent ground to support the Notice of Appeal.

viii. Grounds 2 – 12 are academic.

ix. The entire appeal is incompetent.”