New Nigerian Newspapers Limited V. Olayinka Agbomabini (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Kaduna state in Suit No KDH/KAD/681/2010 contained in the ruling delivered by Honorable Justice M.T.M. Aliyu on the 25th of January, 2011. By a Writ of Summons filed on the 27th of July, 2010 but issued by the Registry of the High Court of Kaduna State on the 3rd of August, 2010, the Respondent, as plaintiff, commenced an action in the High Court of Kaduna State in Suit No KDH/KAD/681/2010 against the Appellant, as defendant, and the endorsement on the Writ of Summons read thus:

“The plaintiff was an employee of the Defendant and upon her retirement by the Defendant, the Defendant computed her terminal benefit in the sum of N385,601.68 but has refused to pay same to the Plaintiff:

Whereof the Plaintiff claims against the Defendant as follows:

a. The sum of N385,601.68 representing the assessed terminal benefits due to the Plaintiff from the Defendant occasioned by the retirement of the Plaintiff by the Defendant from the Defendant’s employment.

b. Cost of this action’”

The writ of summons was accompanied by a Statement of Claim, list of witnesses, written deposition of witness on oath, list of documents to be relied on at the trial and copies of the documents. Counsel to the Respondent also filed a motion on notice dated the 26th of July, 2010 but filed on the 27th of July, 2010 and brought pursuant to Order 11 of the High Court of Kaduna (Civil Procedure) Rules along with the Writ of Summons. The motion prayed for:

“An order of this court entering summary judgment against the Defendant and in favour of the Plaintiff in the sum of N385,601.68 representing the final terminal benefits of the Plaintiff payable by the Defendant arising from the retirement of the Plaintiff by the Defendant.”

The motion was supported by an affidavit with exhibits attached and a written address of arguments of Counsel. The Appellant, as defendant, filed a Statement of Defence dated the 26th of August, 2010 and it was accompanied by a written deposition of witness on oath. The Appellant also filed a counter-affidavit, with one exhibit attached, as response to the motion of the Respondent for summary judgment and Counsel to the Appellant filed a written address of arguments on the application.

On the 15th of October, 2010, the Appellant filed a motion on notice praying for an order of Court striking out the suit for want of jurisdiction and want of parties. The motion was supported by an affidavit with exhibits attached and it was accompanied by Counsel’s written address of arguments on the application. Counsel to the Respondent filed a written address of arguments in opposing the motion. Counsel to the Appellant filed a reply address thereon.

The lower court took arguments on the Respondent’s motion for summary judgment along with the arguments on the motion on notice of the Appellant to strike out the suit for want of proper parties and in a considered ruling delivered on the 25th of January, 2011, the lower Court dismissed the application of the Appellant and granted the application of the Respondent. The lower Court entered judgment in favour of the Respondent in the sum of N385,601.68 together with costs of N2,900.00. The Appellant was dissatisfied with the decision and he filed a notice of appeal dated the 27th of January, 2011 against the judgment. The notice of appeal consisted of three grounds of appeal, inclusive of the omnibus ground.

In compliance with the Rules of this court, the Appellant filed its brief of arguments dated the 22nd of June, 2011 on the 23rd of June 2011 and it consisted of nineteen pages. The Respondent, in response, filed a brief of arguments dated and filed on the 9th of September, 2011 and it consisted of twenty-three pages. The Appellant filed a reply brief of arguments consisting of nine pages and it was dated and filed on the 22nd of September, 2011. Counsel to the Respondent argued a preliminary objection on pages six to ten of his brief of arguments and Counsel drew the attention of the Court to the arguments on the preliminary objection at the hearing of the appeal on the 6th of February, 2013 and he moved the Court in respect thereof. Counsel to the Appellant informed the court that he responded to the arguments on the preliminary objection in the reply brief of arguments.

Counsel to the Respondent did not file a notice of preliminary objection stating the grounds of objection, either as a separate document or as part of the Respondent’s brief of arguments. All that Counsel did was to argue the preliminary objection in the brief of arguments. The Court of Appeal Rules stipulates the procedure that a respondent intending to raise a preliminary objection should follow. Order 10 Rule 1 provides that a respondent intending to rely on a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of the objection and shall file such notice with the registrar within the same time. Order 10 Rule 3 states that where a respondent fails to comply, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such order as it thinks fit – Kaydee Ventures Ltd vs Minister, Federal Capital Territory (2010) 7 NWLR (Pt 1192) 171.

The attitude of the Courts to non-compliance by a respondent with the prescribed mode of raising a preliminary objection in the Court of Appeal has been varied. In some instances, the non-compliance was treated as fatal. The provision of Order 10 Rule 1 of the Court of Appeal Rules 2011 used to be in Order 3 Rule 15(1) of the Court of Appeal Rules 1981. In Okolo vs Union Bank of Nigeria Ltd (1988) 2 NWLR (Pt.539) 618, Achike, JCA (as he then was), said at page 644: