- S.D.C. Cementation (Nig.) Ltd. vs. Nagel & Co. Ltd.
- ₦ 200
S.D.C. Cementation (Nig.) Ltd. vs. Nagel & Co. Ltd.
(NIG.) LTD. & I OR.
NAGEL & COMPANY
LTD. & 1 OR.
COURT OF APPEAL
( JOS DIVISION )
OLUDADE OLADIPO OBADINA, JCA ( Presided )
IFEYINWA CECILIA NZEAKO, JCA
IKECHI FRANCIS OGBUAGU, JCA (Read the Lead Judgment)
TUESDAY, 14TH JANUARY, 2003
APPEAL - Issues - Issues arising from a ground or grounds of appeal -
Power of court to formulate or re-formulate same - Purpose of APPEAL -
Issues in controversy - Purpose of framing or reframing
CONTRACT - Illegality - Defence of illegality - Need for court to be
CONTRACT - Illegality - Need for to be pleaded
CONTRACT - Illegality - Pleading of - When it does not matter
CONTRACT - Illegality - Power of court to raise suo motu
CONTRACT - When illegal - Effect of
COURT - Interlocutory matters - Court making any comment or observation
while dealing with interlocutory matters that might appear to pre-judge the
main issue relation to the interlocutory application - Impropriety of
COURT - Issues in controversy - Purpose of framing or reframing
COURT - Morality - Whether has a place in court
COURT - Preliminary objection on point of law - When raised - Decision
of court thereon - Duty of court to state same in writing
COURT - Preliminary point of law - Trial of - Attitude of court thereto
COURT - Striking out or dismissing of a case midstream or after
evidence had been led by the plaintiff - Impropriety of
COURT - Trial court giving a decision, adjourn and later give its
reasons for the said decision - Whether allowable
JURISPRUDENCE - Morality - Whether has a place in court
PRACTICE AND PROCEDURE - Illegality of contract - Need for to be
PRACTICE AND PROCEDURE - Illegality of contract - Pleading of When it
does not matter
PRACTICE AND PROCEDURE - Illegality of contract - Power of court to
raise suo motu
PRACTICE AND PROCEDURE - Illegality of contract - Termination of an
action in limine on grounds of illegality - When court can
PRACTICE AND PROCEDURE - Interlocutory matters - Court making any
comment or observation while dealing with interlocutory matters that might
appear to pre-judge the main issue in relation to the interlocutory application
- Impropriety of
PRACTICE AND PROCEDURE - Preliminary objection - Ground of law which
will be decisive of the whole litigation -
Right of defendant to raise
PRACTICE AND PROCEDURE - Preliminary objection - When a point of law
can be raised thereon
PRACTICE AND PROCEDURE - Preliminary objection on point of law - When
raised - Decision of court thereon - Duty of court to state same in writing
PRACTICE AND PROCEDURE - Preliminary objection on point of law
challenging the validity of the institution of a suit - When and how can be
PRACTICE AND PROCEDURE - Preliminary point of law - Trial of Attitude
of court thereto when raised
PRACTICE AND PROCEDURE - Striking out or dismissing of a case midstream
or after evidence had been led by the plaintiff Impropriety of
Whether the application of the defendants/appellants
contending that the substance of the plaintiffs/respondentsâ€™ case is illegal or
an illegality is fatal because illegality was not pleaded in the
defendants/appellantsâ€™ statement of defence.
Whether the lower court should have considered all the
averments in the plaintiffsâ€™ statement of claim and the evidence so far led
before him (sic) in determining whether the plaintiffsâ€™ case is an illegality
as opposed to only picking and considering exhibit NC2 as the trial court did.
Whether (if the answer to number 2 above is in the
affirmative) the case of the plaintiffs vis-a-vis
their pleading and evidence so far led in court amounts to an illegality.
Whether (if the answer to number 2 above is in the
negative) exhibit NC2 in the whole circumstances of this case can be said to
spring from, be founded on or rooted in illegality as to make it and therefore
the plaintiffs/respondentsâ€™ case illegal ( sic ).
Whether the agreement between the parties (Exhibit NC2)
is ex-facie illegal or contrary to
public policy and if so whether objection was properly taken to it by way of
motion on notice by the defendants/appellants.
This is an appeal against the
decision/ruling of the Adamawa State High Court holden at Yola presided over by
T. Oluoti, J. on 7/9/95, dismissing the appellantsâ€™ application seeking for an
Order of that court, dismissing the plaintiffs/appellantsâ€™ claim in suit No.
ADSY/23/94 on all or any of the grounds stated on the motion paper.
The respondents as plaintiffs in
their said suit, claimed various sums of money from the appellants as
defendants who denied liability. Pleadings were ordered, filed and exchanged.
On 12/4/95, the PW1 (Alhaji Ahmed Njondi) and PW2 (the 2nd
plaintiff/respondent) - Alhaji Njidda Ahmed Gella, testified and were
cross-examined. Exhibits 1 to 4 respectively, were tendered and admitted in
It was after the evidence of the
PW2, that the appellants filed their said application for the dismissal of the
said suit. The trial court heard arguments on 11/7/95 and on 7/9/95, dismissed
the application and deferred the reasons for the dismissal to a later date. It
adjourned further hearing to 18 th and 19th October, 1995 as agreed to by both
counsel for the parties. On 6/3/96, the learned trial Judge gave his reasons
for dismissing the said application.
with the said ruling, the appellants, having obtained the leave of the Appeal
Court, filed the instant appeal.