Mr. Anthony Ezeafulukwe V. Jim Obatoyinbo (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This is an appeal against the order of the High Court of Justice of the Federal Capital Territory, Abuja delivered by the Hon. Justice I. M. Bukar on the 4th of November, 2002 in suit No: FCT/HC/CV/1151/2002 wherein the learned trial Judge struck out the Plaintiffs suit on the ground that it was an abuse of process of court.

STATEMENT OF FACTS

The appellant by a writ of summons together with a statement of claim both dated 28/10/2002 filed a suit against the respondent claiming some declaratory reliefs, eviction order and damages.

The matter was assigned to the trial court on 30/10/2002 and on 4/11/2002 the learned trial Judge in Chambers struck it out on the basis that it was the same as the case in suit NO: FCT/HC/CV/95/2002 struck out on the 21/10/2002.

Being dissatisfied with the said decision of the trial court the appellant has appealed to the Court of Appeal through a Notice of Appeal dated the 18th November 2002 and filed the same day containing 3 grounds of appeal which are without the particulars as follows:-

Ground 1:

The learned trial Judge erred in law in striking out plaintiff’s suit NO.FCT/HC/CV/1151/2002 on the ground that it will amount to abuse of Court process if the Plaintiff is allowed to file the suit having filed suit NO.FCT/HC/CV/951/2002 which was struck out on 21/10/2002.

Ground 2:

The learned trial Judge erred in law in striking out the Plaintiff’s suit without giving the parties, particularly the Plaintiff, the opportunity to address him on the propriety or otherwise of filing a fresh suit, the subject matter of this appeal, thereby truncating the Plaintiff’s constitutional right to fair hearing.

Ground 3:

The learned trial Judge erred in law when he relied on extraneous matters in striking out the Plaintiff’s suit on the ground that the present suit on appeal is similar to (sic) NO. FCT/HC/CV/951/2002 which was struck out on 21/10/02. The Appellant on the 22/8/03 filed a brief of argument which was deemed filed on 18/3/04. The Appellant also filed a Reply Brief on 21/9/05 and it was deemed filed on 20/10/05.

The Respondent’s Brief was filed on 26/10/04 and deemed filed on 26/5/05 and in it the Respondent incorporated their preliminary objection to the Appeal.

ARGUMENT IN RESPECT OF PRELIMINARY OBJECTION