CORAM
MUHAMMED L. SHUAIBU JUSTICE, COURT OF APPEAL
BILKISU B. ALIYU JUSTICE, COURT OF APPEAL
SAMUEL A. BOLA JUSTICE, COURT OF APPEAL
PARTIES
1. THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STAR
2. LEADER OLUMBAR OLUMBA OBU
APPELLANTS
1. GOVERNMENT OF CROSS RIVER STATE
2.ATTORNEY-GENERAL, CROSS RIVER STATE)
3. CROSS RIVER GARMENT & TEXTILE FACTORY LTD
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Claimants/Appellants before the High Court of Cross River State took out a writ of summons and statement of claim and claimed jointly and severally against the Respondents declaratory, injunctive reliefs and damages.
Upon being served with the originating processes, the 1st and 2nd Defendants/Respondents filed a preliminary objection urging the lower court to strike out the suit on grounds that the suit constitutes an abuse of court process; that this court is invited to sit as an appellate court over its own judgment being a consent judgment, and the reliefs sought by the Claimants herein are tied to the said consent judgment.
The trial court upheld the preliminary objection of the 1st and 2nd Defendants and struck out the suit for want of jurisdiction. Dissatisfied with the trial court’s decision, the Appellants have approached this court via a notice of appeal.
HELD
Preliminary Objection Overruled; Appeal Dismissed
ISSUES
Whether the adjudication and determination of the claims in suit No. HC/213/2017 i.e. the present suit required the trial court to review or sit on appeal over its consent judgment in suit NO HC/97/2014 or to interpret the said consent judgment so as to render the present action incompetent and unmaintainable?
RATIONES DECIDENDI
PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION
“A preliminary objection is the procedure adopted where a respondent objects to the hearing of an appeal. Its purpose is to terminate the appeal in limine”. PER M.L. SHUAIBU, J.C.A
NOTICE OF APPEAL – STATUS OF AN INCOMPETENT NOTICE OF APPEAL
“A notice of appeal is the originating process in an appeal. Once it is incompetent, it remains so, and the court no longer has jurisdiction to hear the appeal. Thus, the appeal would be struck out for being incompetent. And any process attendant to incompetent notice of appeal including the brief of argument is equally incompetent. See Ademgbigbe –V- Abidoye (2009) 10 NWLR (prt. 150) 592 and Onwuzulike –V- State (2020)10 NWLR (prt. 1731) 91 at 104. PER M.L. SHUAIBU, J.C.A
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)