The Chief Judge Of Abia State Hon. Justice K. O. Amah & Ors V. Ndionyenna Nwankwo, Esq. (2007)

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RHODES-VIVOUR, J .C.A.

The respondent was the plaintiff in the court below. He sued the appellants/defendants on a writ of summons accompanied by statement of claim wherein he claimed against the defendants jointly and severally as follows:

1. A declaration that the approval for the High Court of Arochukwu by the 1st and 2nd defendants is for sitting in Arochukwu town and not an approval for Arochukwu Local Government.
2. A declaration that the purported transfer of the proposed Arochukwu High Court site for Arochukwu to Ututu in Arochukwu Local Government is null and void, and of no effect.
3. Injunction restraining the defendants, their agents, privies and/or servants from building or continuing to build, and from furnishing the purported High Court building at Ututu until the approved High Court Complex at Arochukwu is realized.
4. A mandatory injunction directing the defendants to continue and complete the High Court Complex earlier started in Arochukwu without further delay or to realize in whatever form possible the High Court of

Arochukwu.

On being served with the writ of summons and statement of claim the defendants entered an unconditional appearance. A few applications not relevant to this appeal were filed and granted, e.g. motion on notice for extension of time to so enter and for an order deeming as properly filed and served defendants memorandum of appearance. Motion for order of interlocutory injunction.

Leave to amend capacity in which the plaintiff sued, i.e. leave to sue in a representative capacity. Deeming proposed amended statement of claim as properly filed.

On 30/4/02 the defendants filed a notice of preliminary objection on the grounds that the court lacks jurisdiction to entertain the suit and that same be struck out. Further grounds in support of the preliminary objection were that:

1. The plaintiff lacks the locus standi necessary to prosecute this suit.
2. By virtue of the Public Officers (Protection) Law, Vol VI, Cap. 106, Laws of Eastern Nigeria, 1963 applicable to Abia State, the suit is statute barred in that it was not instituted within the 3 months period allowed by law.
3. The suit is otherwise an abuse of the court process.

In a considered ruling delivered on the 15th of July, 2002, I. F. Ogbuagu, J., (as he then was) of the High Court of Ohafia Judicial Division dismissed the preliminary objection.

The present appeal is against that ruling.

On 19/7/02 the defendant filed a notice of appeal containing four grounds of appeal. An application to amend the grounds of appeal was granted by this court on 5/3/03. Briefs were filed and duly exchanged. The appellant’s formulated three issues for determination.They are:

1. Whether the trial Court has jurisdiction to entertain the suit.
2. Whether the trial court was right in striking out our preliminary objection challenging his jurisdiction to hear a suit on the ground that the objection was not supported by any affidavit.
3. Whether the trial court was right in dismissing the preliminary objection.

The respondent formulated two issues for determination. They are:

1. Whether the grounds of appeal as formulated are competent and thus arguable before this Court.
2. Whether the respondent has locus to institute and maintain this action.

At the hearing of the appeal on the 23rd of January, 2007 the appellants were absent and unrepresented. The, respondent, Mr. N. Nwankwo, a legal practitioner appeared in person. He adopted his brief, urged us to take the appellants brief and the reply brief filed on 11/3/03, and 8/5/03 respectively as having been argued.

In further submissions Mr. Nwankwo urged us to dismiss the appeal because the grounds of appeal are incompetent, since no leave was obtained from the court below or this Court before they were filed, consequently there is no appeal.

These submissions on the appeal being incompetent are Issue No. I in the respondents brief. It is fundamental. If it succeeds there would be no competent appeal before this court, and it would become unnecessary to consider any other issue. I shall now consider whether there is a competent appeal before this Court.

In his brief, Mr. N. Nwankwo observed that the appellants filed a notice of appeal containing four grounds of appeal numbered (a), (b) (c) and (d). He further observed that on 5/3/03 this court granted the appellant leave to amend the grounds of appeal by deleting grounds (d) and (c) by substituting a new ground (e).