CORAM

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HON. JUSTICE, ITA.G. MBABA (PJ), OFR,JUSTICE COURT OF APPEAL

HON. JUSTICE, PATRICIA A. MAHMOUDHON, JUSTICE COURT OF APPEAL

HON. JUSTICE, PETER O. AFFEN,JUSTICE COURT OF APPEAL

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PARTIES

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ALH. ALI BUKAR LAU

APPELLANTS 

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HASHIMU VOTO ALI

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

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SUMMARY OF FACTS

The plaintiff in the lower court claimed ownership of multiple parcels of land located in Jauro Voto Ward, Yorro Local Government, Taraba State. He presented different sales agreements, each detailing purchases from various vendors with corresponding prices. The defendant contested these claims, asserting his own ownership of the disputed parcels. The Taraba State High Court ruled in favor of the defendant, dismissing the plaintiff’s claims. Dissatisfied with the decision, the plaintiff appealed. The respondent has raised a preliminary objection in this appeal

 

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HELD

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Appeal struck out

 

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ISSUES

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 Preliminary Objection

 

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RATIONES DECIDENDI

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REPLY – WHERE THERE IS NO REPLY TO A PRELIMINARY OBJECTION

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For all intents and purposes, the Preliminary Objection raised by the Respondent is apt and rightly sustained by his Lordship. This is particularly so as there is no reply filed thereto by the  Appellant. The law is firmly settled that failure to file a reply to a Preliminary Objection constitutes a concession that the Appellant has no answer to the objection. In other words, the Appellant is deemed to admit the contents and facts in the Preliminary Objection. See the cases  of JOSEPH IRO & ORS V CHRISTOPHER ECHENWENDU & SONS (1996) 8 NWLR, PT 468, 629 AT 636, RATIO 2, PARAS B-C; UMANAH V NDIC (2016) 14 NWLR, PT 1533, 458 and KAMIL V INEC ORS (2010) 1 NWLR, PT 1174, 125. I am however, not oblivious to the decision of this court in  the case of EKWUNIFE V NGENE (2000) 2 NWLR, PT 646, 650 where Chukwuma-Eneh, JCA as (he then was) even though agreeing with the principle laid down in UMANAH V NDIC (SUPRA), went on to hold thus:

“However, the fact that the appellant has failed to address the issues raised in the preliminary objection does not ipso facto mean that the preliminary objection would willy nilly be sustained even in spite of construing it to mean that the appellant was not opposed to the objection.”– Per P. A. Mahmoud, JCA

 

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PRELIMINARY OBJECTION – WHETHER A PRELIMINARY OBJECTION SUCCEEDS AUTOMATICALLY WHERE THERE IS NO REPLY

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For all intents and purposes, the Preliminary Objection raised by the Respondent is apt and rightly sustained by his Lordship. This is particularly so as there is no reply filed thereto by the  Appellant. The law is firmly settled that failure to file a reply to a Preliminary Objection constitutes a concession that the Appellant has no answer to the objection. In other words, the Appellant is deemed to admit the contents and facts in the Preliminary Objection. See the cases of JOSEPH IRO & ORS V CHRISTOPHER ECHENWENDU & SONS (1996) 8 NWLR, PT 468, 629 AT 636, RATIO 2, PARAS B-C; UMANAH V NDIC (2016) 14 NWLR, PT 1533, 458 and KAMIL V INEC & ORS (2010) 1 NWLR, PT 1174, 125. I am however, not oblivious to the decision of this court in  the case of EKWUNIFE V NGENE (2000) 2 NWLR, PT 646, 650 where Chukwuma-Eneh, JCA as (he then was) even though agreeing with the principle laid down in UMANAH V NDIC (SUPRA), went on to hold thus:

“However, the fact that the appellant has failed to address the issues raised in the preliminary objection does not ipso facto mean that the preliminary objection would willy nilly be sustained even in spite of construing it to mean that the appellant was not opposed to the objection. – Per P. A. Mahmoud, JCA

 

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PARTIES – THE IMPORTANCE OF THE IDENTITY OF PARTIES TO AN APPEAL

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The identity of parties to an appeal is a threshold issue that goes to the roots of the competence of the proceedings, which cannot be glossed over. – Per P. O. Affen, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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