Mr. Ovuzorie Macauley & Ors V. Mr. John Ata & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the Delta State High Court of Justice, holden at Warri, dated 9th March, 2005.

The respondents as the plaintiffs had by way of an originating motion filed an action at the court below and sought the following reliefs:

“(i) Declaration that the money released, by the Governor of Delta state, Chief James Ibori via 2nd Defendant, for the payment of war refugees in abandon houses and those who built houses on parcels of land was not judiciously utilized by the 1st Defendant.

(ii) A Declaration that persons allegedly paid by the 1st Defendant are faceless, unknown and not among those to be paid.

(iii) An order directing the 1st Defendant to pay the Plaintiffs as directed by the government of Delta State.

(iv) Declaration that the eviction of the plaintiffs by the 1st Defendant is unlawful.”

An affidavit of 22 paragraphs was filed in support of the originating motion; with over L87 affidavits deposed to by various persons which were collectively marked as Exhibits A and B annexed to the affidavit in support of the originating motion.

The appellants, who were the defendants to the action, filed a Notice of Preliminary objection, which challenged the jurisdiction of the court below to entertain and determine the said action. The said Notice of Preliminary objection dated 26th January, 2005 says:

‘TAKE NOTICE that the Defendants/Applicants shall before or at the trial of this case raise Preliminary Objection that this Honourable Court lacks the jurisdiction to entertain this suit as same was wrongly commenced both in form and substance.

GROUNDS OF OBJECTION

1. The entire action was wrongly commenced by originating motion under Order 1 Rule 2(3) of the Defunct Bendel State High Court Civil Procedure Rules of 1988 Applicable to Delta state, without an enabling provisions either in the Rules or under any other written Law for the purpose.”

Learned counsel for the parties addressed the court below and in his ruling, the learned trial judge over-ruled the said preliminary objection, which led to this appeal.

The notice of appeal dated and filed on 21st March, 2005, contains two grounds of appeal, namely:

“a. The learned Trial Court erred in Law when he held that he had jurisdiction to hear and determine Suit No. M/134/2005 which was wrongly commenced by the Plaintiffs/Respondents vide by an originating motion.