NABORE PROPERTIES LIMITED V. PEACE-COVER NIGERIA LIMITED & ORS

CORAM

PARTIES

NABORE PROPERTIES LIMITED APPELLANTS

1. PEACE-COVER NIGERIA LIMITED

2. NATIONAL INLAND WATERWAYS AUTHORITY

3. GOVERNOR OF LAGOS STATE

4. LAGOS STATE GOVERNMENT

5. B.O. ASHAFA( SECRETARY LAGOS STATE LAND USE ALLOCATION COMMITTEE)

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

By a Writ of Summons and Statement of Claim dated 9/11/04 and filed on the same day, the 1st Respondent as Claimant sought against the other Respondents in this Appeal as well as the Appellant as the 8th Defendant certain Declaratory reliefs, Orders and Injunctions with respect to an alleged interest in Lekki Inland Foreshore (Ebute Imoba) of Lagos State Lagoon. The Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the Court. On 22/10/08, the Notice of Preliminary Objection was struck out due to failure of the Appellant to file a Written Address in support of the Preliminary Objection. The Appellant thereafter filed another Notice of Preliminary Objection on 23/10/08. Written Addresses were duly exchanged by the Appellant and the 1st Respondent. After the Appellant had filed and served his Reply on points of Law to the 1st Respondent’s Written Address, the said 1st Respondent brought a Motion on Notice dated 13/2/09 for leave to file a fresh Written Address in opposition to the Appellant’s Notice of Preliminary Objection. The trial court granted the 1st Respondent leave to file the said written address in opposition to the Appellant’s preliminary objection. The Appellant, dissatisfied with the Ruling of the trial Judge, appealed to this court.

HELD

Appeal disallowed.

ISSUES

1. Whether the Trial Court was in breach of Order 9 Rule 18 of the Federal High Court (Civil Procedure) Rules 2000 by going ahead to hear and determine the said application dated 13th February 2009.?

2. Whether the Appellant’s right to fair hearing was violated by the Trial Court in hearing and determining the application dated 13th February 2009.?

3. Whether the application dated 13th February 2009 was an abuse of court process and a calculated attempt to over reach the Appellant.

RATIONES DECIDENDI

INTERPRETATION OF STATUTES – RULE GOVERNING SAME

“The general rule governing interpretation of statutes is that where the language of the statute is clear and unambiguous, the Court should give the words their literal meaning.” PER IYIZOBA, JCA

MOTION-WHEN CAN BE HEARD

“When the motion is ripe for hearing, it may be heard at any time while the court is sitting.” PER IYIZOBA, JCA

AFFIDAVIT EVIDENCE-NON-FILING OF COUNTER AFFIDAVIT-EFFECT OF

“The Principle as correctly submitted by the Appellant is that even where a Counter Affidavit was not filed in opposition to a Motion, that omission does not render the depositions in the Supporting Affidavit incontrovertible.” PER C.E. IYIZOBA, JCA

COURT PROCESS-WHEN WITHDRAWN FROM THE COURT-HOW TREATED

“The Rules of Procedure allow a Party to withdraw a Court process from the Court. Once a Process has been withdrawn from the court, the resultant position is that the same is treated as if it had never been filed and the issues raised in the withdrawn process become lifeless issues, which the Court will not consider in the resolution of the real issues before it.” PER C.E. IYIZOBA, JCA

ERRORS IN PROCESS-REMEDY OF

“The law is that a Party may remedy errors in his process even after a Preliminary Objection has been filed. The fact that a Preliminary Objection has been filed showing errors in a process does not prevent the applicant from making an application for correcting those errors or starting the process afresh on a more appropriate footing.” PER C.E. IYIZOBA, JCA

COUNTER AFFIDAVIT TO MOTION-INGREDIENT OF

“The practice is that where only an Applicant filed an affidavit in support of an application in a motion on notice, his affidavit must be cogent, compelling and unchallenged in order to entitle the applicant to a favourable ruling. Ruling in such a situation will not be entered for the Applicant as a matter of course.” PER C.E. IYIZOBA, JCA

RULES OF COURT-NATURE OF

“Rules of Court are not mere rules but are backed by the full force of the law.” PER IYIZOBA, JCA

COURT PROCESS-WHETHER A PARTY IS ENTITLED TO WITHDRAW A PROCESS FILED IN COURT

“It is trite that a party is entitled to withdraw a Process he filed in court in order to correct a defect and to re-file same.” PER IYIZOBA, JCA

CASES CITED

A.S. T.C. v Quorum Consortium Ltd. (2009) 9 NWLR (Pt 1145) 1 @ 21 F-HAgbakoba v INEC C2008) 18 NWLR (Pt 1119) 489 @ 537538 H-A,African Reinsurance Corporation v DP Construction (Nig.) Ltd (2003) 13 NWLR (Pt 838) 609 at 635 F-GAfro-Continental Nig. Ltd. v Co-operative Assoc. of Professionals Inc. (2003) 5 NWLR 303 & 317-318, F-BAjudahun v Ajudahun (2000) 4 NWLR Pt 654 605 at 615, Para EAkuneziri Vs Okenwa (2000) 15 NWLR (Part 691) @ 533Akwuaka v Lyam (2008) 2 NWLR (Pt 1072) 464 paras G-HAmaechi v INEC (2008) 5 NWLR (Pt 1080) 227 & 449 C-DF.C.E. v Okene Ogbonna (2006) 7 NWLR Pt 979 282 Ratio 6Hungwa V. Uwuokwu (2011) LPELR-3754(CA);Lawal-Osula v UBA Plc (2003) 5NWLR (Pt 813) 376 & 389 G-HMomodu & Ors v Momoh & Anor (1991) 1 NWLR (Pt.169) 608Okomu Oil Palm Ltd v Okpame (20071 3 NWLR (PL1020) 71<s) 85=”” c-enipol=”” limited=”” v=”” bioku=”” investment=”” and=”” property=”” co.=”” (1992)=”” 4=”” nclr=”” 94=”” &=”” 10=”” or=”” 3=”” nwlr=”” (pt=”” 232)=”” 727odusote=”” v.=”” odusote=”” (1971)=”” nmlr=”” 228ogundoyin=”” adeyemi=”” (2001)=”” fwlr=”” (pt.=”” 71)=”” 1741okafor=”” a-g.,=”” anambra=”” state=”” (1991)=”” 6=”” 200)=”” 659otu=”” acb=”” intl’=”” bank=”” plc=”” (2008)=”” pt=”” 1073=”” 197198=”” paragraphs=”” h-bowners=”” of=”” the=”” mv=”” ‘arabella’=”” nigerian=”” agricultural=”” insurance=”” corporation=”” 11=”” 182)=”” 1097=”” @=”” 205-206=”” g-cscc=”” nig.=”” ltd=”” elemadu=”” (2005)=”” 7=”” 923)=”” 28=”” 59=”” f-gshanu=”” afribank=”” (nig.)=”” (2000)=”” 13=”” 684)=”” 392=”” 404=”” f-g,tsokwa=”” oil=”” marketing=”” north=”” (2002)=”” 777)=”” 163ubn=”” astra=”” builders=”” (2010)=”” 41=”” nscor=”” 1016=”” (a),=”” 1038-1039<=”” p=””></s)>

STATUTES REFERRED TO

Federal High Court (Civil Procedure) Rules 2000

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