O. J. Babatunde & Anor V. Austine Eluwa (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of Imo State High Court sitting at Owerri delivered by Hon. Justice F. I. Duroha Igwe on the 7th day of May, 2003.

The facts leading to this appeal are stated thus:-

The Respondent claimed that on the 11th March 1999, he sustained injuries which he claimed to be as a result of negligent firing of gun shots from the rifle being carried by the 1st Appellant who is a staff of the 2nd Appellant. The Respondent also claimed that on the 16th April 1999, the 1st Appellant while acting as a servant and employee of the 2nd Appellant caused his unlawful or wrongful detention at the office of the 2nd Appellant at Naze Road Owerri, Imo State. The Respondent therefore claimed as per the particulars of claim endorse on the writ of summons dated 10th June 1999 and filed on 15/6/99.

Pleadings were filed and exchanged. The writ of summons and statement of claim dated 10th June, 1999 were filed on 15th June, 1999, a period of over three months. The Appellants filed appearance and Statement of Defence out of time via an application for extention of time. The Respondent also filed a notice of produce on 16/9/99. The Respondent filed reply to the Statement of Defence on 28/11/2000 via application dated 21/11/2000.

Trial in the Suit commenced on the 24th January 2002. The Respondent testified as Plaintiffs witness No. 1 and tendered Exhibits. He called no other witness. The Appellants did not testify neither did they call witness.

On the 7th day of May 2003, the trial Imo State High Court presided over by Hon. Justice F.I. Duroha- Igwe delivered Judgment in favour of the Respondent and ordered the Appellants to pay to the Respondent the sum of seventy nine thousand Naira (N79,000.00) special damages for loss of earnings; five hundred thousand Naira (N500,000.00) general damages for pain and suffering and Two hundred thousand (N200,000,00) Naira for wrongful or unlawful detention.

Dissatisfied with the Judgment of Imo State High Court, the Appellant filed Notice of Appeal dated 21st day of April, 2006 out of time with the leave of this Hon. Court dated 3rd day of May, 2005. On the 17th December 2007, the Appellants filed an application for leave to file one additional ground of appeal.

The appeal was heard on the 11/11/2010, learned Counsel to the Appellants Mr. J.O. Momodu informed the Court that the Appellants’ brief of argument is dated 19/1/09 and deemed filed on 20/11/07. Counsel adopts the brief of Argument and urged the Court to allow the appeal.

Learned Counsel for the Respondent Mr. O. C. Ewurum informed the Court that the Respondent brief of Argument is dated 23/3/09 and deemed field on 11/5/10.Counsel adopts the brief of argument and urged the Court to dismiss the appeal.

Learned Counsel for the Appellants formulated two Issues for determination from the four grounds of appeal filed in Court, the issues are stated as follows:

1. Whether the High Court of Imo State had Jurisdiction to hear and determine the action in view of Section 251(l) (r) (s) of the 1999 Constitution and Section 2(a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2004′
2. Whether the learned trial Judge was right in awarding the sum of seven hundred and seventy nine thousand Naira (N779,000.00) only as special and general damages without following laid down Principles.

The Respondent adopts the Appellants’ Issues for determination as contained in their paragraphs 3.1 and 3.2 of the Appellants Brief of Argument.

On Issue No.1, learned Counsel for the Appellants submits that the learned trial Judge of the Imo state High court was wrong in law in hearing and determining the matter. That it is not in dispute that the 2nd Appellant is a Federal Government Agency while the 1st Appellant is an employee of the 2nd Appellant. That the Respondent’s Claims as per the particulars endorsed on the writ of Summons dated 10th June, 1999 and the relief sough at paragraph 15 of the statement of claim at page 8 are for damages arising from the acts of the 2nd Defendant and its agents.

Counsel to the Appellants submits that the appropriate Court to hear and determine the matter is the Federal High Court and not the Imo State High Court in accordance with the provisions of Section 251(1) (Q) (r) and (s) of the Constitution of the Federal Republic of Nigeria 1999, reference made to NATIONAL ELECTRIC POWER AUTHORITY V. MR. B. EDEGBERO & 15 ORS. (2003) FWLR (PT.139) 1556 AT 1559 E – F and 1571 B – C; DR. TAIWO OLORUNTOBA.OJU & ORS. V. PROFESSOR P.A. DOPMU & ORS. (2008) ALL FWLR (PT.411) 810 AT 829 – 830; FGN v. OSHIOMOLE (2004) 3 NWLR (PT.860) 305 AT 322-323.