Nabore Properties Limited V. Peace-cover Nigeria Limited & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

Chinwe Eugenia Iyizoba, J.C.A.

This is an appeal against the Ruling of Akanbi J of the Federal High Court Lagos in suit No FHC/L/CS/1031/2004 delivered on the 16th day of February 2009 granting the 1st Respondent leave to file a written address in opposition to the Appellant’s Preliminary Objection dated 22nd October 2008.

By a Writ of Summons and Statement of Claim dated 9/11/04 and filed on the same day, the 1st Respondent as Claimant sought against the other Respondents in this Appeal as well as the Appellant as the 8th Defendant certain Declaratory reliefs, Orders and Injunctions with respect to an alleged interest in Lekki Inland Foreshore (Ebute Imoba) of Lagos State Lagoon.

On 11/3/08, the Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the Court. On 22/10/08, the Notice of Preliminary Objection was struck out due to failure of the Appellant to file a Written Address in support of the Preliminary Objection. The Appellant thereafter filed another Notice of Preliminary Objection on 23/10/08. Written Addresses were duly exchanged by the Appellant and the 1st Respondent. After the Appellant had filed and served his Reply on points of Law to the 1st Respondent’s Written Address, the said 1st Respondent brought a Motion on Notice dated 13/2/09 for leave to file a fresh Written Address in opposition to the Appellant’s Notice of Preliminary Objection. On the 16th of February when the Suit came up for hearing, the 1st Respondent’s Motion on Notice was heard and granted by the Lower Court, the Appellant’s opposition notwithstanding.Suits & Business Attire

The Appellant, dissatisfied with the Ruling of the Trial Judge filed a Notice of Appeal containing 10 Grounds of Appeal. Before the hearing of the Appeal, the Appellant withdrew grounds 8, 9 and 10 thus leaving 7 Grounds of Appeal out of which he distilled 4 Issues for determination as follows:-

1. Whether it is open to the Learned Trial Judge to proceed and without regard to the clear provisions of the Rules of Court, particularly, Order 9 Rule 18 of the applicable Federal High Court, (Civil Procedure) Rules, 2000 to entertain the Plaintiff’s said Motion on Notice dated the 13th February, 2009 and filed in this suit, as he so did; and to grant the same.
2. Whether the proceedings of the trial Federal High Court of the 16th February, 2009 leading to the decision being appealed against and the said decision, itself, per Akanbi J., granting the Plaintiff’s said Motion on Notice dated the 13th February, 2009 are not a nullity and, ought, thereby, to be set aside in their entirety.
3. Whether the trial Federal High Court did not fail in its duty to pronounce and/or to determine the manifest abuse of process occasioned by reason of the filing of the Plaintiff’s said Motion on Notice dated the 13th February, 2009 and the Reliefs sought therein and/or that the same were calculated merely to overreach the Appellant.
4. Whether the Learned trial Judge could competently exercise the discretion and/or to grant the Plaintiff’s said Motion on Notice dated the 13th February, 2009 and the Reliefs sought therein in absence of any material to support the same and in the face of the facts on the Records.

The 1st Respondent also formulated 4 Issues for determination as follows:

– Whether the Trial Court was in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by going ahead to hear and determine the said application dated 13th February 2009.
– Whether the Appellantt right to fair hearing was violated by the Trial Court in hearing and determining the application dated 13th February 2009.
– Whether the application dated 13th February 2009 was an abuse of court process and a calculated attempt to over reach the Appellant.
– Whether the exercise of discretion of the Trial Judge was done judicially and judiciously in the face of the facts presented in the affidavit in support of the application dated 13th February 2009.

The 2nd Respondent also distilled 4 Issues of Determination as follows:

i. Whether the decision of the Learned Trial Judge in the proceeding to hear and grant the application dated the 13th day of February 2009 on the 16h February 2009 was in any way in breach of the provisions of Order 9 rule 18 of the Federal High Court (Civil Procedure) Rules 2000.
ii. Whether the hearing and the granting of the motion dated 13th February 2009, on the 16th February 2009 by the Trial Judge was in breach of Appellant’s fundamental right to fair hearing as enshrined under the 1999 Constitution of the Federal Republic of Nigeria.
iii. Whether the motion dated 13th February 2009 and heard on the 16th February 2009 on its face constitutes an abuse of the process of the court below.
iv. Whether the Learned Trial Judge failed in his duty to exercise his discretion judicially and judiciously in granting the Order or prayers contained in the Motion on Notice dated 13th February 2009.

I consider Issues 1, 2 and 3 formulated by the 1st Respondent germane and exhaustive of the grounds of Appeal. I will therefore adopt the said 3 Issues in the determination of the appeal.

APPELLANT’S ARGUMENTS
ISSUES ONE AND TWO (Argued Together)
– Whether the Trial Court was in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by going ahead to hear and determine the said application dated 13th February 2009.
– Whether the Appellant’s right to fair hearing was violated by the Trial Court in hearing and determining the application dated 13th February 2009.

Learned Counsel for the Appellant submitted that since the 1st Respondent’s Motion on Notice dated 13/2/09 was served on the Appellant late on the same 13th of February being a Friday, the minimum of two clear days notice allowed under the Federal High Court (Civil Procedure) Rules 2000 could only begin to run for the purposes of the 1st Respondent’s Motion from Monday the 16th of February, 2009, which was the day when the said Motion was heard and granted. Counsel referred us to the cases of Tuoye Holdings Ltd v Niger-Benue Trans. Co. Ltd & Anor (2007) 49 WRN 27, 38-39 paragraphs 25-10, where in construing Order 18 Rule 17 of the High Court of Benue State (Civil Procedure) Rules, 1998 (which is in pari materia) with Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000, Allagoa JCA (as he then was) stated as follows:
“…since the motion was taken by the court…less than two days from the service of the motion…and in contravention of order 8 rule 17 of the High Court (Civil Procedure) Rules… had the trial Court the jurisdiction to entertain the motion? … most certainly there was a feature in the case which prevented or could have prevented the court from exercising its jurisdiction on that day and the said motion… was not properly before the court when it was taken.”

Learned Counsel thus contended that the Trial Court lacked jurisdiction to entertain the Motion before the expiration of two days from the date of service of the said motion in the absence of leave sought and obtained to that effect by the 1st Respondent.

Learned Counsel further submitted that the right of the Appellant to be heard on the 1st Respondent’s Motion apart from being a constitutionally entrenched right, is recognized by the Federal High Court (Civil Procedure) Rules 2000, which in Order 9 Rule 7 (1) provides “No motion shall be made without previous notice to the parties to be affected”.