Odera Specialist Clinic v. Oshimili South Local Government Council (2025)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA (Delivering the leading judgment)

This appeal emanated from the judgment delivered by Hon. Justice K. O. Okpu of Delta State High Court on 3rd July, 2019 in appeal No. A/3A/2018 (sitting in appellate jurisdiction) wherein the lower (High Court) struck out the appeal filed by the appellant against the ruling of the trial Magistrate Court in charge No. CMA/H/30/2017, delivered on the 20th December, 2017, whereof the trial Magistrate struck out the preliminary objection filed by appellant at the trial court, on the ground that the respondent applied that, since appellant, who filed the preliminary objection was not in court, the motion needed to be withdrawn and struck out.

And the trial court did so and penalized the appellant with cost of Five Thousand Naira (N5000.00) and held that the same be paid to the respondent before appellant could take further step in the case.

At the trial Magistrates Court, the appellant as owner (Odenigbo) of Odera Specialist Clinic, Along St. Brigids Road, Asaba, had been charged by Medical Officer of Health as follows:

That you Owner (Odenigbo) Specialist Clinic, Along St. Brigids Road Asaba on the 29th day of November, 2017 in the Asaba Magisterial District Jurisdiction did fail to comply with the terms of Abatement Notice No. 4493 dated 28th November, 2017, served on you requiring you, within twenty four (24) hours, to recall the team of Environmental Health Officers whom you obstructed from carrying out their legitimate duty by preventing them access into your premises for the purpose of detecting nuisance contrary to the provision of the Environmental Health Officers Registration Council of Nigeria (EHORECON) Practice Guide for Environmental Health Officers in Nigeria Established by Act II of 2002, Chapter 4 (2.3) Pg. 51 and you thereby committed an offence under section 10, punishable under section 68 of the Public Health Law Cap P. 21 Vol.4, Laws of Delta State, Nigeria, 2006.

Appellant (as defendant to the charge) had filed a motion on notice at the trial court on 5/12/2017 (as Misc CMA/MISC/83/2017 in the charge), seeking the following orders:

(1) An order of this honourable court that the claim brought by the plaintiff/respondent against the defendant/applicant is unknown to law.

(2) An order of this honourable court that this suit discloses no cause of action against the defendant/applicant and should be dismissed.

(3) And for such orders or further orders as the honourable court may deem fit to make in the circumstance.

Grounds of this application are

(1) That the claim is unknown to law

(2) That the claim is incompetent.

Appellant had also filed notice of preliminary objection to the charge: that the defendant/applicant shall at the hearing of this suit raise a preliminary objection that this suit is incompetent.

The grounds of the preliminary objection were: