Texaco (Nigeria) Plc V. Reuben Iloka & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This appeal emanated from Benue State High Court of Justice sitting in Makurdi wherein on 1.03.2001 Eko J. dismissed the plaintiff’s claim for want of prosecution and allowed the defendant to open their counter-claim.

The brief facts of the case leading to this appeal are that the appellant as plaintiff commenced action of the High Court of Justice Benue State claiming title to 3 fuel dispensing pumps, special and general damages.

The suit was commenced at the High Court of Justice of Benue State Sitting in Gboko, Hearing commenced in that Court and 13 exhibits were tendered. The coram of the court changed and the case started de novo before Honourable justice. Ikyegh who subsequently transferred the suit to the High Court of justice sitting at Makurdi.

On 17/10/2000, 1/12/2000 and 18/1/2001, the matter could not go on due to absence of appellant’s (plaintiffs) witnesses who are all outside Benue State. On 1/12/2000, the trial court granted the appellant the last adjournment to open her case. The something happened on 18/1/2001. On 1/3/2000, the appellant was with a witness who came from Enugu to testify and was ready to open her case but the exhibit which were tendered before the High Court sitting at Gboko were not available for the case to be opened. The learned trial judge rather than strike out the suit dismissed it. Appellant felt unhappy hence this appeal. Appellant filed a notice of appeal on 17/5/2001 containing two grounds of appeal.

In compliance with the rules of court parties exchanged briefs of argument. Appellant’s brief of argument dated 3/12/2001 was filed on 5/12/2001. Respondents’ brief was dated 4/4/2002 and filed on 8/4/2002 but deemed properly filed and served on 14/10/2002. A reply brief was filed on 14/10/2002.

When the appeal came up for bearing the registrar informed the court that appellant’s counsel S.B Swem was in court on the last hearing date being 26/2/13 when the case was adjourned against 7.05.13 for hearing. Consequently appellant’s brief filed on 3/12/2001 was deemed argued, as well as the reply brief filed on 14/10/02. Respondents’ counsel intimated the court that the respondents’ brief dated 4/4/02 and filed on 8/4/02 but deemed properly filed on 14/10/02, contained Notice of preliminary objection at pages 2-5 of the brief.

Respondents’ Counsel adopted the argument contained of pages 3-5 of the brief and urged the court to uphold the objection. As regards the substantive appeal learned Counsel adopted the respondents’ brief and relied on the argument appearing of pages 6-17 of the brief and urged the court to dismiss the appeal.

Appellant formulated two issues for determination as follows:

1. Was the trial judge right when he dismissed appellant’s suit?
2. Whether or not by that order of dismissal appellant was granted fair hearing in the circumstances.

Respondents adopted the issues raised by the appellant on page 2 of his brief of argument.

The preliminary objection has to be resolved before considering the issues distilled by the appellant for determination by the court. It is trite law that an objection must be taken first before determining the merit of the appeal. See Osun State Government vs. Olami (Nig.) Ltd. (200) 7 NWLR (Pt. 818) 72.

The argument relating to the preliminary objection is contained at pages 3-5 of the respondents’ brief. Learned counsel for the respondents submitted under paragraph 1.03 of the brief that since the decision appealed against is an interlocutory decision, leave of this court or the trial court is required for the appeal before this court to be competent. The contention of learned counsel is that whether the decision appealed against is that of 1/3/2001 or 12/4/2001, a counter claim is still pending as such the decision have not conclusively determined the rights of the parties herein. That in absence of leae being sought and obtained, this court lacks jurisdiction to hear this appeal as there is no valid pending appeal.

It was also contended that the appeal being interlocutory decision, ought to have been filed within 14 days from the date of the decision. Reference was made to S.25(2) of the Court of Appeal Act and the Notice of Appeal filed on 17 /5/2001 appearing on pages 38-40 of the record. That if the appeal is against the decision of 1/3/2001, then it was filed after two months 15 days which is outside the 14 days prescribed period provided under S.25(2) of the Court of Appeal Act, for interlocutory decision. Learned counsel submitted that since the decision is not a final decision, this court should hold that the appellant’s appeal is incompetent.

Learned counsel also urged the court to strike out ground 2 of the notice and grounds of appeal. The ground of complaint is that it offends Order 3 Rule 2(2) of the Court of Appeal rules 1981 as amended. That the particulars of misdirection supplied by the appellant regarding ground 2, have no nexus with the alleged misdirection. That the ground is of mixed fact and law and leave of court or trial court is required to file same. He urged the court to strike it out.