CORAM
M. A. OWOADE (PJ), JUSTICE COURT OF APPEAL
J. S. ABIRIYI, JUSTICE COURT OF APPEAL
M. L. SHUAIBU, JUSTICE COURT OF APPEAL
PARTIES
APPELLANTS
MRS. LYNDA ALETOR
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondents instituted this suit before the High Court of Cross River State sitting at Calabar. The Appellants filed a preliminary Objection to the Respondents suit and in reaction, the Respondents’ filed an application for extension of time within which to file their counter affidavit and written address against Appellants’ preliminary objection. This the trial Court granted and a date was fixed by the Court for the hearing of the Appellants’ preliminary objection to the suit of the Respondents, but before which the Appellants had appealed against the ruling of the trial Court to the Court of Appeal, Calabar Judicial Division vide their Notice of Appeal containing four Grounds of Appeal. The Respondents had filed a notice of preliminary objection to the hearing of the interlocutory appeal on the grounds that leave was not obtained and it was lodged without compliance with the mandatory provisions of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
HELD
Appeal Struck Out
ISSUES
Not Available
RATIONES DECIDENDI
PRELIMINARY OBJECTION –PURPOSE OF A PRELIMINARY OBJECTION
“The purpose of a preliminary objection is to terminate the appeal in limine or at the outset. When the preliminary objection is upheld it terminates the appeal. See Muhammed v. I.G.P. & Ors (2019) 4 NWLR (pt. 1663) 492 at 507”. – PER J. S. ABIRIYI, J.C.A
LEAVE TO APPEAL – INSTANCE WHEN LEAVE TO APPEAL IS REQUIRED
“It is the law that leave to appeal is required only when the judgment sought to be appealed against is not a final judgment or the appeal is on grounds other than law. See Anacheba v. Ijeoma & Ors. (2014) LPELR – 23181 SC. Where the court has to look at the surrounding circumstances in order to determine whether the court below exercised its discretion judicially or arbitrarily such questions necessarily raise issues of mixed law and fact. See Metal Construction (West Africa) Ltd v. Migliore &Ors (1990) LPELR – 1869 SC. See also Garuba & Ors. v. Omokhodion & Ors. (supra) cited by learned senior counsel for the Respondents. – PER J. S. ABIRIYI, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. High Court of Cross River State (Civil Procedure) Rules 2008