THE ESTATE OF EZEKIEL ABIODUN LADIPO.V. INTEGRATED CAPITAL SERVICES LIMITED

CORAM

PARTIES

THE ESTATE OF EZEKIEL ABIODUN LADIPO (SUING THROUGH MR. J. O. ALABI (T/S OLUSHEYE NIGERIA ENTERPRISES) AS ATTORNEY TO EZEKIEL ABIODUN LADIPO FAMILY) APPELLANTS

INTEGRATED CAPITAL SERVICES LIMITED RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Claimant/Appellant is the owner of 8 flats of 3-bedroom luxury apartment with pent house at 31c Raymond Njoku Street, South West, Ikoyi, Lagos, while the Respondent is the tenant of the Appellant who is in possession of the said property. The Claimant/Appellant instituted an action against the Respondent at the lower court to recover possession of the said property. Upon instituting the action against the Respondent, the Appellant was unable to effect personal service on the Respondent. However, the Appellant sought and obtained the leave of court to serve the Respondent via substituted means by pasting the originating processes on the door of the apartment that was occupied by the Respondent. Upon pasting of the originating processes on the door of the Respondent’s apartment, the Respondent vehemently failed to enter appearance. Thus a default judgment was entered in favour of the Appellant against the Respondent. The Appellant also got an Order from the Lower Court permitting the Deputy Sheriff to force open the door of the property which the Respondent occupies, and take an inventory of all items found therein and keep same in the office of the Deputy Sheriff. The Respondent been dissatisfied with the said default judgment, filed in the lower court an application to set it aside on the ground that he was not served the originating processes. The Appellant in response to the Respondent’s application filed a notice of Preliminary objection but the lower court failed to determine the preliminary objection and proceeded to the hearing and determination of the Respondent’s application. Upon determination of the Respondent’s application, the lower court granted the reliefs sought and set aside the default judgment. Dissatisfied with the ruling of the lower court, the Appellant has filed a notice of appeal on the grounds that the court erred when it heard and determine the application of the Respondent without considering the preliminary objection raised by the Appellant amongst others.

HELD

Appeal Allowed

ISSUES

Whether the failure of the lower court to deliver its Ruling in this matter not later than 90 days after the adoption of written briefs of the parties did not occasion miscarriage of justice giving the circumstance and the procedure adopted? Whether the lower court was right to hear and determine the motion on notice dated 6th October 2011 before proceeding to hear and determine the Notice of Preliminary Objection dated 13th November 2012 challenging the propriety and competence of the said motion on notice? Whether the lower court was not functus officio to entertain the issues contained in the motion on notice dated 6th October 2011 having decided similar issues in ruling of 1st June 2012? Whether the service of the originating process for recovery of possession on the Respondent by substituted means was not proper service under the Tenancy Law?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION

“The purpose of a preliminary objection is to determine or terminate proceedings in limine at the point the objection was raised. See the cases of Okoi V Ibiang & Ors [2012] 1 NWLR (PT 716) 455; Sehindemi & Ors V Govt Of Lagos [2006] 10 NWLR (PT 987) 1. In Mtn Nig Communications Ltd V Mr Akinyemi Aluko & Anor (2013) LPELR – 20473 CA the court on the main objective of preliminary objection held that:
“Now to the Preliminary objection, since it has to be firstly determined before anything else. Why is this so? This is because a preliminary objection as the name connotes, is a challenge, mounted by the Respondent’s counsel to the hearing of the appeal before the commencement of oral submissions by the Appellant’s counsel. Invariably, the main objective of preliminary objection if adjudged successful is to truncate the hearing of the appeal in limine either partially or totally.”

PRELIMINARY OBJECTION – WHETHER ALL PENDING MOTIONS SHOULD BE HEARD FIRST BEFORE A PRELIMINARY OBJECTION

“The law has since been settled that when a preliminary objection is raised which says all pending motions shall be heard and that preliminary objection to a hearing must be taken first or together with the said motion. See Senate President V Nzeribe [2004] 9 NWLR (PT 878) 251 where Adekeye, JCA held that:
“It is economical to hear the two and have a single ruling. The court may take advantage of hearing two applications together as long as the issue of jurisdiction is first resolved. So that in the event of an appeal by parties, it is easier for the appellate court to express its view. See also First F. Ltd v NNPC (2007) 4WRN 105 AT 147-148; Jaiye v Abioye [2003] 4 NWLR (PT 870) 397 at 414…”
“In Oyema & Ors V Eguchulam [1986] 5 NWLR (PT 448) 274 at 265 KUTUGI, JSC stated that:
“The court had a duty to make its decision on the preliminary objection known to the parties before proceeding to the next stage…” See Efet V Inec (2011) AFWLR (PT 565) 263. In Adelekan V Ecu-Line NV [2006] 12 NWLR (PT 993) the court emphasised that it is not only expedient but mandatory and if firstly determined before steps are taken in the proceedings, however vague or minute a preliminary objection is. See also Yaro V Arewa Construction Ltd & Ors [2007] 17 NWLR (PT 1063) 333 where the court held that:
“The aim and essence of a preliminary objection is to terminate. The preliminary objection is an objection on jurisdiction of the court to hear the application having first ruled on it. This amounts to a fundamental breach of the law and amounts to shutting out the appellant from adjudication.’’

FUNCTUS OFFICIO – WHETHER A COURT CAN REVISIT OR REOPEN A MATTER WHEN IT IS FUNCTUS OFFICIO

“The lower court was functus officio to have heard the present motion and it is indeed an abuse of court process. In the case of First Bank V Tsa Ind Ltd [2010] 15 NWLR (PT 1216) 247 SC the apex court held that a court is said to be functus officio in respect of a matter if the court has fulfilled or accomplished its function in respect of a matter and it lacks potency to revive, reopen, revisit the matter. It cannot revisit or review the situation. Also this court had course to make clear pronouncement in the case of Abah & Ors V Jabusco Nig Ltd (2007) LPELR – 4325 CA that:
“The general rule of law is that no court has the power to rehear, review, alter or vary any judgment or order after it has been entered.”