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  • S.D.C. Cementation (Nig.) Ltd. vs. Nagel & Co. Ltd.
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  • 2003-05-26
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S.D.C. Cementation (Nig.) Ltd. vs. Nagel & Co. Ltd.

S.D.C. CEMENTATION (NIG.) LTD. & I OR.

V

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)

CA/J/40/96

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 wary

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 when raised

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 pleaded

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 determined

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

Issues:

1.            Whether the application of the defendants/appellants contending that the substance of the plaintiffs/respondents’ case is illegal or an illegality is fatal because illegality was not pleaded in the defendants/appellants’ statement of defence.

2.            Whether the lower court should have considered all the averments in the plaintiffs’ statement of claim and the evidence so far led before him (sic) in determining whether the plaintiffs’ case is an illegality as opposed to only picking and considering exhibit NC2 as the trial court did.

3.            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.

4.            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/respondents’ case illegal ( sic ).

5.            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.

Facts:

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 appellants’ application seeking for an Order of that court, dismissing the plaintiffs/appellants’ 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 evidence.

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.

Dissatisfied with the said ruling, the appellants, having obtained the leave of the Appeal Court, filed the instant appeal.