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VICTOR AMAECHI EKWEREKWU & ORS v. ENGR. EMMANUEL EKWEREKWU & ORS

(2018) LPELR-45079(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of July, 2018

CA/E/89/2018


Before Their Lordships

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria


Between

1. VICTOR AMAECHI EKWEREKWU
2. EMMANUEL IBE OKOLONJI
(Alias Igba Jesus)
3. JAPOVIK COMPANY (NIG.) LIMITED - Appellant(s)

AND

1. ENGR. EMMANUEL EKWEREKWU
2. MR. JOACHIM EKWEREKWU
(For themselves and as
representatives of other concerned and aggrieved Members of Okposieke family of Ogbolieke village Onitsha)
3. MR. EUSTACE ORJEKWE EKWEREKWU - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This is an appeal against the decision of the High Court of Anambra State holden at Onitsha ("the trial Court") delivered on 23rd of November, 2017 in Suit No. O/303/2016.

At the trial Court, the 1st and 2nd Respondents as plaintiffs vide their Writ of Summons and Statement of Claim filed on 6th of September, 2016 sued the Appellants and 3rd Respondent as 1st, 3rd, 4th and 2nd defendants respectively claiming certain reliefs.

Based on the processes of the defendants in the said suit, the Appellants were the first set of defendants and filed a joint statement of defence. While the 3rd Respondent who was the 2nd defendant filed a separate statement of defence. At the close of the filing and exchange of pleadings in the substantive suit, the Appellants filed the application the subject of this appeal.

In the application, the Appellants sought an Order dismissing the Plaintiffs' suit No. O/303/2016 between Engr. Emmanuel Ekwerekwu & Anor. And Victor Amaechi Ekwerekwu & 3 Ors. for being an abuse of Court process.

The application was supported by an affidavit of ten paragraphs and two exhibits. The Written Addresses in support of and against the application were duly filed and exchanged by the respective parties, including the Appellants' Reply on points of law. In the considered decision of the trial Court on the application of the Appellants delivered on 23rd of November, 2017 although the learned trial Judge found that, the non-certification of Exhibits "A", "A1" and "B", which are public documents, rendered them inadmissible, His Lordship determined the merits of the application and dismissed same.

Dissatisfied with the decision of the trial Court, the Appellants brought this appeal.

ISSUES:
The Respondents in their brief of argument, raised a notice of preliminary objection on the following grounds:
1. That the Appellants notice and grounds of Appeal dated 6/12/2017 and filed on 6/12/2017 in this Court arose from an interlocutory decision/ruling of the trial Court delivered on 23/11/2017 and the grounds in the main are challenging the interlocutory decision of the trial Court predicated on exercise of discretion, that the trial Court did not properly evaluate the evidence before it, also complaint about the assessment of Affidavit evidence and also challenged as to the findings of facts, evaluation of facts and or call for investigation of the existence or otherwise of facts.
2. The Appellants did not comply with the provisions of Section 242(1) and(2) of the extant Constitution of the F. R. N. (As Amended) which makes it mandatory, compulsory and obligatory that the Appellants must/shall seek and obtain prior leave of either the trial Court or the Court of Appeal before filing their Notice and Grounds in Appeal No. CA/E/89/2018.
3. Section 242(1) of the said 1999 Constitution provides: Subject to the provisions of Section 241 of this Constitution an Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
The Court considered the appeal on the merits of the Preliminary Objection.


DECISION/HELD:
In the final analysis, the Preliminary Objection succeeded. The Court held that the Notice of Appeal was incompetent and it was accordingly struck out.


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