Victor O. Abbey & Anor V. Rivers State Housing And Property Dev. Authority & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A (Delivering the Leading Judgment)

The appeal is against the ruling of E. N. T. Ebete (J), sitting at port Harcourt High court which was delivered on 22-9-2004 in which the learned trial judge granted the defendants/respondents application setting aside his judgment which was delivered on 30-1 -2004 and relisting the suit for hearing on its merit.

The brief history of the case is that the appellants were the plaintiffs at the lower court presided by Olukole, J of blessed memory. By then, the defendants were, first the Rivers State Housing and Property Development Authority 2nd. Lt. Colonel S.R. Inokoba, (RTD), 3rd. Mrs. Comfort Ikoli, 4th. E.C. Okorji and 5th, the Attorney General of Rivers State.

All parties filled and exchanged pleadings and the trial proceeded, but, the suit had to be transferred to Hon. Justice Ebete, due to the demise of Hon. Justice Olukole. The case therefore commenced de novo, and the lower court ordered that fresh hearing Notice be served on the defendants, now respondents. There was no sufficient evidence to prove that the trial courts’ order for hearing notice on the respondent; was properly carried out. The case continued, and on 30-1-2004, the lower court delivered its judgment in favour of the present appellant and against the present respondents only. The other defendants were not found liable, hence only the respondents filed on 14-07-2004 a motion on notice seeking the trial judge to set aside the decision delivered on 30-01-2004 on the ground that, the trial court’s order for hearing notices were never served on them. The present appellants filed a preliminary objection to the motion and filed a counter affidavit in opposition and all these are contained at pages 66 – 69 of the record. The appellants showed hearing notices said to have been served on the respondents through the 1st respondent’s staff. These assertions were vehemently denied by the respondents. The trial judge accepted the respondents’ motion, especially the affidavit in support which was premised on non service of hearing notices as ordered by the trial judge. Based on his finding that there was no proper service of hearing notices on the respondents, the trial judge granted the motion to set aside his earlier judgment which was delivered on 30-01-2004.

His Lordship on 27-09-2004 relisted the suit for hearing on merits on the ground that the previous judgment was obtained on default of serving hearing notices on the respondents. Dissatisfied with the ruling, the appellants, filed on 9-10-2004, their notice of appeal containing 3 grounds of appeal. By the leave of this court, the appellant’s original notice of appeal was amended by deleting one ground leaving only two grounds of appeal. The appellants also applied for and were granted leave to amend their brief of argument which was deemed filed on 7-10-2004. From the two amended grounds of appeal, the appellants have surprisingly raised 4 issues for determination and they read as follows:-

“1. Should the learned trial judge have made the order dismissing the appellant’s preliminary objection to the competence of the court’s jurisdiction without considering or take judicial notice of the grounds for which the objection was raised.

2. Whether the ruling/decision of the learned judge: was not entered in total disregard to his being functus officio with respect to suit No. PHC/656/91 having delivered his final judgment, and the respondent’s application having not been brought by an originating summons or originating motion.
3. Whether the learned judge made proper evaluation of affidavits evidence before him and facts contained in the court’s record he was referred to or ought to have had judicial notice of.
4. Whether the decision of the learned judge, which he dismissed the plaintiffs/ applicants (appellants herein) objection to his jurisdiction in hearing the respondents application to inter alia set aside his final judgment, is a final decision or interlocutory”

On service of appellants brief, the respondents filed on 23-10-2008, their brief of argument. It contains two issues for determination and they read as follows:-

1. Whether the learned judge was functus officio and so lacking jurisdiction when he entertained the respondents’ application dated 14-07-04 seeking to set aside his earlier judgment delivered on 30-01-04 (ground one).
2. Whether having regard to the materials and the totality of the evidence before the trial court and the law, the learned judge was in error in granting respondents application setting aside this earlier judgment (ground two)”

Before he delved into arguments on respondents brief, learned counsel moved into their Notice of Preliminary objection which is premised on Section 24 (2) (a) of the Court of Appeal, Act, Laws of the Federation of Nigeria, 2004 and Section 242 (1) of the Nigeria Constitution 1999 and order 6 rule 6, Order 7 rule 1 and Order 1 and Order 10 rule 1 of the Rules of this court, 2007. The respondent’s objection is on the ground that this honourable court lacks the requisite jurisdiction to entertain this appeal; and that this appeal is incompetent and should be struck out. On receipt of the respondent’s; brief of argument containing the preliminary objection, learned counsel for the appellants filed on 03-11-2008, appellants reply brief.

At this stage, I deem it necessary to consider the respondents preliminary objection first because, it is settled law that where a preliminary objection succeeds, there would be no need to go further to consider the arguments in support of the issues for determination, see NEPA v. ANGO (2001) 15 NWLR (Pt 737) 627; ANPP v. The Returning Officer, Abia Sen. District (2005) 6 NWLR (Pt.920) 140 APELEKAN v. ECU-2 INE NV (2006) 12 NWLR (Pt 993) 33,

The respondent’s objections are contained in paragraph 4. 03 of the respondents brief, and the further grounds are as follows:

1. The ruling of the lower court appealed against was delivered on 22-09-2004 and therefore an interlocutory appeal matter. That this interlocutory appeal was filed on 19/10/04, more than 14 days after ruling was delivered and there was no application by the appellant seeking for extended periods to lodge appeal. That therefore this court lacks jurisdiction to entertain the appeal.
2. That the two grounds of appeal as contained in the amended notice of appeal are both grounds of facts and or mired law and facts, that no leave was obtained to bring this, interlocutory appeal Pursuant to Section 242 (1) of the Constitution, 1999

3, That the appellant’s two grounds of appeal have no valid issues covering them. That the four issues raised by the appellant are manifestly unarguable and utterly unreasonable, and that the four issues are not related to the two grounds of appeal.

Learned counsel for the respondents referred to numerous decisions of the Supreme Court and this court in support of his argument that the preliminary objection should be sustained.

Kogi State House of Assembly (2005) ALL FWLR 1360; Tiza v. Begha (2005) 15 NWLR (Pt 949) 616.

The respondents further argued in his objection to the appeal on the ground that the ruling appealed against is an interlocutory ruling since it did not put an end to the claim of the parties. Counsel referred to and relied on the decisions in Excel Plastics Industry Ltd v. FBN Plc (2005) ALL FWLR (Pt.279) 139.