WAZIRI V. BELLO & ORS
March 17, 2025PROFESSOR GREGORY IBEH V. CHIEF CHIKWENDU UDENSI AND ORS
March 17, 2025Legalpedia Citation: (2023-03) Legalpedia 28511 (CA)
In the Court of Appeal
Holden at Abuja
Thu Mar 9, 2023
Suit Number: CA/ABJ/CV/966/2020
CORAM
HAMMA AKAWU BARKA
UGOCHUKWU ANTHONY OGAKWU
BATURE ISAH GAFAI
PARTIES
ABUJA MUNICIPAL AREA COUNCIL
APPELLANTS
ANYISA
RESPONDENTS
AREA(S) OF LAW
APPEAL, LAND LAW, PRACTICE AND PROCEDURE, JUDGEMENT, CIVIL LAW AND PROCEDURE
SUMMARY OF FACTS
The Respondent, as Plaintiff before the High Court of the Federal Capital Territory, Abuja, instituted proceedings against the Appellant herein and others, claiming sundry reliefs in respect of property situate at Plot 1432, Karu E-10 Abuja.
The trial Court gave judgement in her favor on 7th December 2016 and awarded a Judgment sum. The Appellant complied with the said judgment and wholly liquidated the judgment sum on 4th July 2019.
However, post-judgment and liquidation of the judgment sum, the Respondent filed applications seeking for an order of Court awarding post-judgment interest on the judgment sum and for the accrued post-judgment interest over the period it took the Appellant to liquidate the judgment sum to be paid. This was filed, refiled in a different motion due to some errors in the first, and amended by a third motion. The application was eventually granted by the court on 7th October 2020.
The Appellant, dissatisfied by this decision of the lower court appealed.
HELD
Appeal Dismissed
ISSUES
Preliminary Objection
Whether Motion No: M/4462/2020 is competent before the Court.
RATIONES DECIDENDI
REPLY BRIEF –THE IMPLICATIONS OF NOT FILING SAME AND THE DUTY OF THE COURT
It is settled law that when an appellant fails to file a Reply Brief when it is necessary to do so, he will be deemed to have conceded the points arising from the Respondent’s Brief. See OKOYE vs. NIGERIAN CONSTRUCTION AND FURNITURE CO. LTD (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT 115) 296 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518. The situation is even worse where a Reply Brief is not filed to a preliminary objection as in this case: DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMO (1992) 8 NWLR (PT 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129. On the state of the law, the Appellant is deemed to have conceded the points raised in the preliminary objection since it did not file a Reply Brief. However, this does not mean that the preliminary objection is bound to succeed. The Court remains under the bounden duty to consider the merits of the preliminary objection. See JOHN HOLT VENTURES vs. OPUTA (1996) 9 NWLR (PT 470) 101, SALAU vs. PARA-KOYI (2001) 13 NWLR (PT 731) 602 and OWOYELE vs. MOBIL PRODUCING (NIG) UNLTD (2020) LPELR (50352) 1 at 4. It is the preliminary objection that I will first consider and resolve since it seeks to scuttle the hearing of the appeal in limine. – Per U. A. OGAKWU, JCA.
DOCUMENTS – POWER OF THE COURT TO OMIT IRRELEVANT DOCUMENTS
So the Rules of this Court permit the omission of documents that are irrelevant to the subject matter of the appeal. – Per U. A. OGAKWU, JCA.
CONDUCT OF THE COURT – THE IMPLICATION IF GRANTING AN ORDER IS AN ABUSE OF COURT PROCESS
“The disceptation is on the narrow issue of whether Motion No. M/4462/2020, which was granted by the lower Court, is an abuse of process of Court. Of course, where it is an abuse of process of Court, the decision of the lower Court cannot stand since the application that spawned the decision would be incompetent as a result of its being an abuse of process.
Au contraire, where the said Motion is not an abuse of process, then the decision of the lower Court would be valid and subsisting since the merits of the said decision have not been challenged. – Per U. A. OGAKWU, JCA.”
ORDER – THE IMPORTANT CONSIDERATION – DOES IT DISPOSE THE RIGHTS OF PARTIES OR ISSUES IN THE APPLICATION
“In applying the nature of order test to this matter, it is immaterial that the order was made pursuant to a motion on notice. The important consideration is whether the order as made disposed of the rights of the parties or if it only disposed of an issue or issues in the application, leaving the parties with a right to return to the Court to claim other rights in the matter.
Put differently, if by the nature of the order the Court has nothing more to do with the case after it has made the order. – Per U. A. OGAKWU, JCA.”
JUDGMENT – WHETHER A DECISION IS FINAL OR INTERLOCUTORY
“Two different tests have been propounded to determine whether a decision is final or interlocutory. The first is the nature of application test and the other is the nature of the order test.
The nature of application test was laid down by Fry, L. J. in SALAMAN vs. WARNER (1891) 1 Q.B. 734 at 736 and it is that an order is not final unless it is made in application or proceeding that once a decision is given, it will, if it stands, finally determine the matter in litigation.
The nature of order test, as postulated by Lord Alverstone, C. J. in BOZIN vs. ALTRINCHAM U. D. C. (1903) 1. K.B 547 at 548-549 is whether the judgment or order as made finally disposes of the rights of the parties. If it does, then it is a final order; but if it does not, then it is an interlocutory order.
Where the Court orders for something to be done without any further reference to it, the judgment or order is final. In Nigeria, our Courts have adopted the nature of order test laid down in BOZIN vs. ALTRINCHAM U. D. (supra), irrespective of the nature of the application that resulted in the order.
See AKINSANYA vs. UBA (1986) LPELR (355) 1 at 73, UDE vs. AGU (1961) LPELR (25126) 1 at 2-3, BACKBONE CONNECTIVITY NETWORK (NIG) LTD vs. BACKBONE TECH NETWORK INC. (2021) LPELR (56884) 1 at 6-8 and EBOKAM vs. EKWENIBE & SONS (1999) 7 SCNJ 77 at 87 or (1999) 10 NWLR (PT 622) 242 at 250-251. – Per U. A. OGAKWU, JCA.”
MOTION – WHAT CONSTITUTES AN ABUSE OF PROCESS
“It is effulgent that the reliefs, grounds and parties in Motion Nos. M/8593/2019 and M/4462/2020 are similar. However, the law is that what constitutes an abuse of process is not the filing of Motion No. M/4462/2020 with similar reliefs, on similar grounds and against the same parties during the pendency of Motion No. M/8593/2019. The abuse of process will be the filing of Motion No. M/4462/2020 with the intention of prosecuting both motions simultaneously, concurrently or pari passu. This was never the intention on the clear facts of this matter…it was never intended to prosecute both motions simultaneously, concurrently or pari passu…
It has been held that where, as in this matter, the earlier motion has been withdrawn or struck out, even if it was done after the second motion had been filed, that there is no abuse of process, since the striking out of Motion No. M/8593/2019 on 12th May 2020 had put an end to any abuse of process See N. V. SCHEEP vs. MV S. ARAZ (2000) 15 NWLR (PT 691) 622 at 664-665, IKINE vs. EDJERODE (2001) 18 NWLR (PT 745) 446 at 488 and 500 and ZAREWA vs. FALGORE (2020) LPELR (50870) 1 at 29-31.”
CASES CITED
STATUTES REFERRED TO
1. Court of Appeal Rules, 2021
2. Constitution of the Federal Republic of Nigeria 1999 (as amended)
