PASTINOR INVESTMENT COMPANY LIMITED & ANOR v. BANK OF THE NORTH & ANOR (2014)

PASTINOR INVESTMENT COMPANY LIMITED & ANOR v. BANK OF THE NORTH & ANOR

(2014)LCN/7187(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of June, 2014

CA/K/28/2006

RATIO

NECESSITIES TO OBJECT TO THE TRIAL OF A SUIT

The rule has always been that a Defendant who has cause to object to the trial of a suit, has to file his defence (statement of defence) and raise the point(s) of law, he intends to rely on to fault the trial in the said defence. If he cannot wait for the said point of law to be determined along with his defence at the hearing of his case (defence), he is permitted to file a Motion on Notice, calling on the court to set down that point of law for hearing and determination at the time the case comes up for trial. See the case of Moyosore vs. Gov. of Kwara State (2012) 5 NWLR (pt. 1293) 242, where Order 26 Rule 2 of High Court (Civil Procedure) Rules of Kwara State (Similar to Order 24 Rule 2 of Kano State High Court Rules) was considered, and it was held:

“That provision followed rule one of that Order which says:” No demurrer shall be allowed.” I believe this was meant to check or curtail the usual tendency by the defence to resort to bubby traps and ambushing to abort trial of matters on their merit, by relying on technicalities to deny the claimant the hearing of his case on the merit. And often times, the technical Justice which the Defendant secure by aborting the trial on merit becomes a mere temporary relief which only delayed the trial of the substantive matter, and when the technical Justice is set aside, on appeal, the parties go back to square one, after spending all the time and resources pursuing shadows.

That is why the law would require such a point of law, which the Defendant has, which, is capable of disposing of the case in limine if raised and sustained, to be pleaded in the statement of defence and properly raised, thereafter for the judge to dispose of either before the trial or at the trial.” Per ITA GEORGE MBABA, J.C.A.

WHETHER A STATEMENT OF CLAIM SUPERCEDES A WRIT OF SUMMONS

“A process is said to supercede another, if it is subsequent to and completely severed from that other. Once there is interconnectivity between the process that was first in time and the subsequent process, the latter cannot be rightly said to have superceded the former. For supercession of the earlier process by the subsequent process to occur, there must be a complete disconnect between the two imposed by the fact of the one completely occupying the place or role of the other.” Per ITA GEORGE MBABA, J.C.A.

Justice

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

Justice

PASTINOR INVESTMENT COMPANY LIMITED
2. MR. SAMUEL OZIEGBEAppellant(s)

AND

BANK OF THE NORTH
(UNITY BANK PLC IN FORMATION)
2. SHEIK TAHEER USMAN BAUCHIRespondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Rulings of Kano State High Court in Suit No. K/178/2000, delivered on 11/7/2003 and 16/7/03 by Hon. Justice Wada Omar Abubakar, terminating the Appellants’ claim for non-disclosure of cause of action and ejecting them from the premises they occupied, by means of ex-parte order, without putting them on notice.

Appellants were the Plaintiffs at the lower Court. By amended writ of summons and statement of claim, filed on 26/7/2000, Appellants had claimed against the Respondents (who were defendants at the Court below) as follows:
“(1) A declaration that the exercise of the power of sale by the 1st Defendant of the 2nd Plaintiff’s immovable properties situate and lying at Plot 204 Kawaji Quarters, Kano and covered by Certificate of Occupancy No. WLN/RES/RC/81/183, under the Legal Mortgage registered by the 1st Defendant on 13/12/91 in the sum of N1,320,000.00 only, involved collusion and constructive fraud and that these rendered the purported sale voidable and that the sale be set aside… in the interest of Justice .
(2) A declaration to the effect that the price of Three Million and Twenty Thousand Naira only (N3,020,000.00) which the 1st Defendant claimed to have sold 2nd Plaintiff’s property, worth N18 million, was too low, to be in itself evidence of fraud and that the purported sale ought be set aside in the interest of Justice and that the 2nd Defendant, was privy to the fraud, if actually he paid only N3,020,000.00 for the property, which he saw valued N18,000,000.00.
(3) A declaration the 1st Defendant, who postponed the sale of the said immovable property by public auction up to 22/2/95 on the basis of the proposals made to them by the Plaintiffs for payment rescheduling of the loan etc; ought to have, after waiting for 4 years and six months to have notified the Plaintiffs of their intention to exercise their powers under the Legal Mortgage and that failure on their part to do so vitiated the purported sale.
(4) An order of inquiry into Plaintiffs’ account No. C600006 – 01 with the 1st Defendant Bank to reconcile the Accounts, with a view to determining how a facility of N2 million only made on 6/4/92 could have risen to N15,385,386.91 by the end of January 2000, so that the Plaintiffs may be allowed to pay what shall be found due.
Alternatively: The Plaintiffs plead the doctrine of estoppel by conduct in that as far back as 1995, the Bank granted interest waivers and had asked for N2.8 million while the Plaintiffs offered N2.6 as full and final settlement of the indebtedness. So that the Plaintiffs can get back their title documents in respect of the property and that was why Plaintiffs offered to pay N3 million on the 27/10/99 as full and final payment.
(5) An order of injunction restraining the 1st and 2nd Defendants either by themselves, their servants, agents, employees, representatives, acting in any capacity whatsoever, from harassing, interfering with 2nd plaintiff’s possession, use and occupation of the said immovable property situate at Plot 204 Kawaji Quarters, Kano, until the final determination of the issues involved in this case.” (pages 45 – 46 of the Records)

A brief facts of the case at the lower Court, showed that 1st Appellant as customer of the 1st Respondent applied for a loan facility of N4.5 million from the 1st Respondent but was granted N1.2 million, guaranteed by the 2nd Appellant (who was the Chairman and Chief Executive officer of 1st Appellant) using his landed property lying and situate at 204 Kawaji Layout, Kano, under a Legal Mortgage. The 1st Appellant attracted additional facility of N800,000.00 from the 1st Respondent, raising the loan facility to N2 million. 1st Appellants’ investment in importation of agricultural produce (5000 metric tons of wheat) turned out to affect its business harshly, due to some Federal Government policies on importation and that affected the repayment schedule 1st Appellant had with the 1st Respondent. Appellant sought rescheduling of the debt but 1st Respondent refused. Appellant sought to sell the mortgaged property (to repay the loan) and found a buyer who offered N5.3 million for the property (valued at N9.1 million as at then), but the 1st Respondent, which was intimated, interfered and advertised the property. Appellants’ attempt to stop the 1st Respondent from selling the property by public auction, as per Suit No. K/120/95 yield an interim order of injunction against the 1st Respondent in 1995. But the said suit was struck out in 1996, and though it was relisted in 1997, it was again struck out in 1998, for want of jurisdiction.

Appellants thereafter dealt with the 1st Respondents’ solicitor directly, and offered to pay N3 million as full and final payment of the debt as per their letter dated 27/10/99. While doing this, Appellants said their erstwhile solicitor (Mr. Nelson Uzuegbu, who anchored the ill fated Suit No. K/120/95), unknown to Appellants, was making moves, purporting to act on the instruction of Appellants, to sell the property through a private treaty, and keeping in contact with the 1st Respondent’s solicitor – M. A. Bello and Co; that further to this, while 2nd Appellant was in Goron Dutse Prison, Kano (at the instance of the failed Banks Tribunal, Kano Zone) his said former solicitor, (Nelson Uzuegbu) drafted a letter for him in prison and asked him to sign, to the effect that he (2nd Appellant) had authorized the sale of his mortgaged property; he did not yield but rather reprimanded the lawyer for such unwholesome and fraudulent practice.

Meanwhile, Appellants’ letter of 27/10/99, offering to pay N3m to clear the debt was replied to on 17/1/2000, after the alleged sale of the property to 2nd Respondent by the private treaty, and to Appellants’ dismay, from the statement of account obtained in February 2000, the sum of three million and twenty thousand naira N3,020,000.00 was credited into 1st Appellant’s account on 1/01/2000 as proceed from the sale of the landed property; this prompted Appellants’ reasonable suspicion that Respondents and Appellants’ former solicitor colluded to construct the fraud to defraud them (Appellants). They therefore took out the suit. But the Respondents, without filing any defence, brought an application, dated 12/4/2002, praying the court to dismiss the Appellants’ claim for non-disclosure of a reasonable cause of action and to vacate the injunctive orders placed in the suit. The Court below granted Respondents’ application, struck out the suit and vacated the existing injunctive orders. But, surprisingly, after the grant of the Respondents’ application, the Respondents filed another motion (Ex-parte) on 15/7/03, using the same suit number of the concluded suit, and prayed the court to restrain Appellants from remaining in the landed property No. 204 Kawaji Quarters, Kano and the lower Court granted the said ex-parte application and consequently ejected Appellants from the premises.

This appeal is against the two rulings of the lower Court (i) striking out the Appellants’ suit for non-disclosure of reasonable cause of action on 11/7/03 and (ii) ejecting the Appellants based on ex-parte application on 16/7/03, respectively, (See pages 31 and 32 of the Records).
Appellant filed their Notice and grounds of Appeal, dated 5/11/03, as seen on pages 280 to 282 of the records, disclosing 2 grounds of appeal. They filed their brief of arguments on 7/4/06, raising 2 issues for determination:
(1) Whether the Appellants’ claim before the lower Court did not disclose a reasonable cause of action, and was the learned Trial Judge right to have entertained the Respondents’ application to dismiss the Appellants’ suit for non disclosure of reasonable cause of action having regard to Order 24 of the Kano State High Court Civil Procedure Rules, 1988 (Ground 1)
(2) Whether the learned Trial Judge was right in granting an Ex parte Order as a final order which violated the Appellants’ right to fair hearing, which order was so granted after the Trial Judge became functus officio (Ground 2).

The Respondents filed their brief of arguments on 26/6/06 and in it raised a notice of objection to the competence of issue 1 formulated from ground 1 by the Appellants. On the appeal, Respondents adopted the two issues as raised or formulated by the Appellants. Appellant filed a Reply brief on 25/1/2007, with the leave of court when the appeal was heard on 20/3/14, Appellants were absent but there was proof of service of the hearing notice on them. The Respondents’ counsel argued Respondents’ briefs, starting from Respondents’ preliminary objection to the issue 1 by the Appellant.
Appellants’ brief was deemed duly argued by this Court.

The Respondents objection against Appellants’ issue 1 was argued on pages 1 to 6 of the Respondents’ brief. Their main complaint was that “Appellants formulated two issues from their ground one of their appeal and the 2nd issue is what the Appellants described as their second plank of their issue 1…”

I do not think the Respondents are correct to think that because Appellants argued their issue 1 under different segments, which they called planks, for clarity, that that amounted to breaking the ground 1, from which the issue was distilled, into different issues. On the face of it, Appellants had clearly stated that their issue one arose from their ground one of the appeal.
Ground one of the appeal (without particulars) was that
“The Learned Trial Judge erred in law when he held that the Appellants’ claim did not disclose a reasonable cause of action and therefore struck out the suit at the instance of the Respondents, whereas, the Appellants’ statement of claim disclosed a reasonable and substantial cause of action.”

I have already reproduced the issue one distilled from that ground, and it queried whether Appellants’ claim at the lower Court did not disclose reasonable cause of action and whether the court was right to have entertained Respondents’ application to dismiss Appellants’ suit for alleged non-disclosure of reasonable cause of action, having regards to the Rules of Court.

It is very obvious that the issue raised clearly and perfectly derived from the above ground of appeal. And it is simply a matter of style for Appellants’ counsel to argue the said issue in different segments or planks, for the purpose of marshalling or communicating his point clearly, and nobody can take that liberty from him.

It is legally absurd, in my view, to think that by arguing an issue arising in appeal, in segments or under different planks, that each segment or plank amounts to a new issue, duplicating or multiplying the issue formulated from the given ground of appeal. That the Respondents’ counsel, after arguing against the use of the issue one, ended up by adopting the same issue to argue the ground one of the appeal tends to show that learned Counsel for the Respondents was not serious, when he raised the objection, or that the Respondents misconceived the concept of raising more than one issue from a single ground of appeal, which the rules abhor. The Respondents’ objection is therefore misconceived and is hereby dismissed.

Arguing issue 1, Appellants’ counsel, M. A. Ikpe Esq. (who settled the brief) started by stating what “reasonable cause of action” means and relied on the Supreme Court case of Cookey vs. Fombo (2005) ALL FWLR (Pt. 271) 25 at 38 -39, where Edozie JSC said:
“…A cause of action is the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the Plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement or being claimed against the defendant.”
Counsel also relied on the case of Ogbimi vs. Ololo (1993) 7 NWLR (Pt. 304) 128; RINCO CONTS. CO. LTD VS. VEEPEE IND. LTD (2005) ALL FWLR (Pt. 264) 816

He submitted that, in determining whether the Plaintiffs’ case discloses reasonable cause of action, recourse must be had to the writ of summons and statement of claim, filed by the Plaintiff. F.U.M.B. LTD VS. AEROBELL NIG. LTD (2005) ALL FWLR (Pt. 281) 1651. He referred us to pages 45 and 46 of the records of appeal, where the pleadings of the Appellants were reproduced, and he relied particularly on paragraphs 20, 21 and 28 of the statement of claim, to say that Appellants’ case had disclosed reasonable cause of action. He relied on the case of HARUNA vs. KOGI STATE HOUSE OF ASSEMBLY (2005) ALL FWLR (Pt. 279) 1370 at 1386 – 1387 on the principles governing or guiding a statement of claim said to disclose no cause of action.

Appellants further argued that by Order 24 Rule 1 of the Kano State High Court (Civil Procedure) Rule 1988, “No demurrer shall be allowed,” meaning that demurrer had been abolished. Counsel relied on the Black’s Law Dictionary, 7th Edition PP 444 -445, for the meaning of “demurrer” and said that Order 24 Rule 2 of Rules of same Court requires a defendant with objection to raise same in his pleading, as point of law intended to determine the suit, and thereafter file an application to set the matter down for hearing, to determine the objection; that in this case, the Defendants did not even file any defence; that though the Defendants obtained order of extension of time to file their statement of defence, twice, they never utilized any. He referred us to pages 13 and 16 of the Records, and submitted that without filing their statement of defence, any application brought by Respondent, pursuant to Order 24 Rule 2 of the High Court Rules, was incompetent and should not have been entertained by the trial Court. He relied on AJAO VS JAMDB (2006) ALL FWLR (Pt. 302) 19 at 49.

On issue 2, counsel submitted that upon the ruling of the trial Court on 11/7/03, striking out Appellants’ suit No. K/178/2000 for non-disclosure of reasonable cause of action, the Court became functus officio in the suit and that marked the end of life of that case; that for Respondents to file a motion exparte in the same suit number, on 15/7/03, seeking relief that affected the Appellants’ interest, and for the trial Court to entertain and grant it, without notice to Appellants and hearing from them, was despicable and a desecration of the temple of Justice. He referred us to pages 80 to 82 of the Records, and relied on the case of KOTOYE VS. CBN (1989) 1 NWLR (Pt. 98) 419 at 465.

Counsel added that the Appellants’ right of fair hearing, under Section 36(1) of the 1999 Constitution, was therefore grossly violated. He also relied on Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap 10 LFN, 1990; Magna Maritime Service Ltd vs. Oteju (2005) ALL FWLR (Pt. 270) 1995; Daniel Tayar Trans. Ent. Ltd. vs. Busari (2005) ALL FWLR (Pt. 268) 1689.

Counsel therefore submitted that the Ruling of the trial Court, founded on the ex-parte application was a nullity and he relied on the case of L.S.D.P.C. VS. ADEYEMI – BERO (2005) ALL FWLR (Pt. 252) 486 at 503; and Mcfoy VS. U.A.C. LTD (1961) 3 ALL ER 1169 at 1172; which held:
“If an act is void then it is in law void. It is not only bad but incurably bad. There is no need to set it aside. It is automatically null and void, without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay. It will collapse.” Per Denning MR (of blessed memory).
Appellants urged us to resolve the issues for them and allow the appeal.

The Respondents’ counsel, Felix Jones Osimerha Esq. (who settled the Brief), on Issue 1, conceded that the cases and authorities, cited by Appellants’ counsel, sufficiently defined “cause of action.” He too relied on MRS. M. B. AMUSAN VS. MR. DANIEL OBIDEYI (2001) 6 NWLR (Pt. 710) 647 AT 655 – 656 and AJAYI VS. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (Pt. 504) 237, to say that a cause of action is the bundle or aggregate of facts which the law recognizes as giving the Plaintiff a substantive right to make a claim against relief or remedy being sought.

On the submission that the Court has to look at the writ of summons and the statement of claim of the Plaintiff, to determine whether a cause of action is disclosed, counsel said the contention was misconceived, because on filing the statement of claim, the same supercedes the writ. He called on us to look at the Amended statement of claim by the Appellants (which he said superceded their writ) to see whether it disclosed a reasonable cause of action. He submitted that through out the gamut of the Amended Statement of Claim, dated 26/7/2000 (pages 44 – 45 of the Records), there was no claims to any relief which Appellants sought from the court; that there was no facts relied upon by the Appellants recognized by law or under any law to support whatever imagined claim of the Appellants. He relied on Order 12 Rules 1 and 2 on how to state claims or cause of complaint in pleadings.

On the issue of statement of claim superceding the writ of summons, the Respondents’ counsel relied on the case of Enigbokan vs. American Internation Insurance Co. Nig. Ltd (1994) (pt. 348) 1 at 15 – 16; Udechukwu vs. Okonkwo (1958) 1 FSC 70; Lahan vs. Layoyetan (1972) 6 SC 190 and Arabambi vs. Advance Beverages Industries Ltd (2006) ALL FWLR (Pt.295) 581, among others.

The Respondents’ counsel submitted that the Appellants did not seek any reliefs from the court as they were required to do by Order 25 Rule 12 (2) of the Kano State High Court (Civil Procedure) Rules. He said that Appellants only narrated facts in their statement of claim which did not support any rights or claims known to law; that Appellants failed to make any claim or relief in the suit. Counsel added that it is not for a court to speculate on what a party intended to claim in court; that the court cannot grant any claim or relief not sought by a party. He relied on the case of Daniel Garan vs. Staff Olomu (2001) FWLR (Pt. 41) 1859 at 1871.

On issue 2, counsel submitted that the ex-parte order, granted by the lower Court on 16/7/03, did not, in any way, affect the ruling delivered on 11/7/03 in which the suit NO: K/178/2000 was struck out and all interlocutory orders hitherto made, particularly the order of interlocutory injunction, were set aside; that by the ruling of 11/7/03, the rights of the Appellants and the Respondents were determined and there was no restraining or injunctive orders against the Respondents in respect of the property at plot 204, Kawaji Quarters, Kano.

Respondents, however, also argued that the ruling (ejecting the Appellants) being made on ex-parte application was not a final judgment as Appellant had right to apply for it to be varied or discharged, relying on Order 8 Rule 11 of the High Court (Civil Procedure) Rules, Kano State.
Counsel wondered why the Appellants did not apply to set aside the ex-parte order but rather appealed against it.
He urged us to resolve the issues against the Appellants and dismiss the appeal.

RESOLUTION OF ISSUES
I shall consider the appeal on the 2 issues distilled by Appellants, but as modified hereunder:
(1) Was the Trial Court right to strike out Appellants’ suit on claim of non disclosure of reasonable cause of action, when Respondents never filed any statement of defence and did not comply with Order 24 Rule 2 of the Kano State High Court (Civil Procedure) Rules 1988?
(2) Did the Trial Court have jurisdiction to make the ex-parte order of 16/7/03 founded on a suit (NO. K/178/2000) that had been disposed of and purportedly ejecting the Appellants from property, without hearing from them or giving them opportunity to be heard?

The Counsel on both sides have relied on common decided cases on the meaning of ’cause of action’ or ‘reasonable cause’ of action”, and on the fact that it is the claims (writ of summons and statement of claim) of the Plaintiff that the Trial Court has to consider to determine whether or not the case of the Plaintiff discloses cause of action or reasonable cause of action.

In the case of Cookey v. Fombo (2005) ALL FWLR (Pt. 271) 25 AT 38-39 the Supreme Court held:
“A cause of action is the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make claim for relief or remedy being sought. Thus, the factual situation on which the Plaintiff relied to support his claim must be recognized by the law as giving rise to substantive right capable of enforcement or being claimed against the Defendant. (Per Edozie JSC).
See also Nosiru Bello & Ors vs A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828, where the apex court had earlier made similar pronounce.
“A cause of action was defined as a bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make claim against the relief or remedy being sought… In order words, the factual situation relied upon must constitute the essential ingredients of an enforceable right. Concisely stated, any facts relied upon by the Plaintiff resulting from the act of the defendant which gives rise to a justifiable complaint is a cause of action.” See also Ogbini vs Ololo (1993) 7 NWLR (Pt. 304) 128; Rinco Const. Co Ltd vs. Veepee Ind. Ltd (2005) ALL FWLR (Pt. 204) 816.
In Ibrahim vs. Osim (1988) 3 NWLR (Pt. 82) 257 at 267, it was held:
“A cause of action is the entire set of circumstances giving rise to an enforceable claim: it is in effect the facts or combination of actions which give rise to a right to sue and it consists of two elements:
(a) the wrongful act of the defendant which gives the Plaintiff his cause of action or complaint, and
(b) the consequent damages.”
I think what is obvious from the various definitions of cause of action is the fact that what constitutes “cause of action” or “reasonable cause of action” is not constituted in the relief sought by the Plaintiff, per se, but in the facts or aggregate of facts alleged by the Plaintiff as acts or conduct of the defendant which give rise to relief(s) and which infringe on the recognizable right(s) of the Plaintiff. Of course, to determine whether or not there is a cause of action, that is, recognizable right(s) of the Plaintiff infringed or violated by the act or conduct of defendant, recourse has to be had to the writ of summons and statement of claim of the Plaintiff, only, not to the motion of the defendant or what the defendant imagines as the cause of action. See the case of F.U.M.B. LTD VS. AEROBELL NIG LTD (2005) ALL FWLR (Pt. 281) 1651 at 1677; of MOYOSORE VS. GOV. OF KWARA STATE (2013) NWLR (Pt. 1293) 242; (2011) LPELR 8813 (CA); GUINNESS (NIG) PLC vs. SKA. NIG LTD (2012) 18 NWLR (Pt. 1331) 179.

The Respondents had argued that, because Appellants did not state any relief or remedy claimed in their amended statement of claim, they (Appellants) did not therefore disclose any reasonable cause of action; and that since the principle of law is that the statement of claim supercedes the writ of summons, the amended statement of claim (which did not state any relief) had replaced the writ summons (which had stated some reliefs claimed). The Learned Trial Court appeared to have bought into that argument when it held:
“Apart from the claim for an interlocutory injunction at paragraph 33 of the amended statement of claim, there is no other relief specifically claimed throughout the length and breath of the Plaintiff’s (sic) amended statement of claim. By paragraph 34 of the amended statement of claim, the Plaintiff (sic) purportedly claims as per the particulars of claim in this action. This is contrary to order 25 Rule 12 of this Courts’ Civil Procedure Rules. See Garau vs. Olomu (2001) FWLR (Pt.41) 1859 at 1870, paragraph B-C.”

I think that was a strange and wrong method of looking for a cause of action in a suit – considering the reliefs claimed or absence of the same, instead of considering the facts or aggregate of facts alleged in the pleadings of the Plaintiff, showing the acts of the Defendants complained against, establishing breaches or infringements of the rights of the Plaintiff, which are recognized by law and capable of being enforced!
Appellants’ counsel had referred us to the amended statement of claim filed by the Appellants on 26/7/2000 (pages 45 – 46 of the records). Particularly paragraphs 20, 21 and 28 thereof, where they claimed as follows:
“(20) The plaintiffs contend that the exercise of power of sale of the 2nd Plaintiff’s immovable property situate and lying at plot 204 Kawaji Quarters, Kano and covered by Certificate of Occupancy No. LKN/RES/81/91, under the legal mortgage registered by the 1st Defendant in the Ministry of Lands, Kano on 13/01/91 in the sum of N1,320,000.00 only involved collusion with constructive fraud such that made the purported sale voidable and right to be set aside.
(21) The Plaintiffs aver that the 2nd Defendant, as purchaser was privy to this fraud, if actually he paid only the sum of N3,020,000 for a property worth N18,000,000 in respect of valuation done on 5th of May, 1999, long before the purported sale.
(28) Alternatively: The Plaintiffs plead the doctrine of estoppel by conduct on issue of waivers of interest, in that in 1995 the bank had agreed to the sum of N2.8 million as full and final settlement so that the Plaintiffs can settle and recover their Certificate of Occupancy.”

In paragraph 21 (i) (ii) (iii) (iv) of the amended statement of claim the Appellants averred:
“(i) 2nd Plaintiff claims that because of the strained relationship between himself and his former lawyer, Mr. Nelson Uzuegbu, he never instructed him again over this matter, and apart from the instructions which led to the filing of suit No. K/120/95, he never at any time authorized him to enter into any deal to sell his house with the 1st Bank’s solicitors. His former lawyer did not let him see any of the letters he wrote to the Bank’s Solicitors M.A. Bello & Co.
(ii) that in response to their (Respondents) letter dated 9th September, 1999, he (2nd Plaintiff) went to the 1st Plaintiff’s (sic) Solicitors – M. A. Bello & Co, in company of Chief Obi Nwankwo, there, he narrated to the Solicitors his bitter experiences in the hands of Mr. Nelson Uzuegbu and how in the past he compromised his cases for his own gains.
That he also indicated his preparedness to offset the indebtedness in the sum of N3 million only and he was advised by the…. to send in a letter to that effect. This discussion was notice enough to the Banks solicitors that Mr. Nelson Uzuegbu & Co had ceased to be his solicitors.
(iii) That Mr. Nelson Uzuegbu and the Bank kept him in the dark and did not even tell him when the property was sold and that his inquiry letter of 27/10/99 was only replied on 17/01/2000.
(iv) That when he tried to find out from Mr. Nelson Uzuegbu whether he knew that his property has been sold by the Bank, Mr. Uzuegbu denied any such knowledge in a letter dated the 13th April 2000 he sent to him.” See pages 50 to 51 of the Records).

Even a casual appraisal of the above facts and complaints by Appellants, clearly discloses valid and fundamental complaints against the Respondent, which the Respondents had a duty to answer to and which the court was called upon to adjudicate on and resolve. Sadly, the lower Court failed to do its duty and rather jumped into unsolicited and premature conclusions, when it said:
“The Plaintiffs have also complained of the conduct of their lawyer, Mr. Nelson Uzuegbu (sic) but failed to join him as a necessary party.”!
I think the Learned Trial judge erred, greatly, when he entertained the application of the Respondents, at that stage of the case, to strike out Appellants’ suit and for the reasons it gave when the Respondents never complied with the requisite Rules of Court for raising the motion to terminate the case, in view of Order 24 Rule (1) of the High Court (Civil Procedure) Rules, barring demurrer proceedings.

By Order 24 Rules (1) and (2) of the said Court Rules, show how points of law may be raised by pleading, as follows:
“(1) No demurrer shall be allowed.
(2) Any party shall be entitled to raise by his pleading any points of law, and any points so raised shall be disposed of by the judge who tries the cause at or after the trial. Provided that by consent of the parties, or by order of the court or judge on the application of party, the same may be set down for hearing and disposed of at any time before the trial.
The rule has always been that a Defendant who has cause to object to the trial of a suit, has to file his defence (statement of defence) and raise the point(s) of law, he intends to rely on to fault the trial in the said defence. If he cannot wait for the said point of law to be determined along with his defence at the hearing of his case (defence), he is permitted to file a Motion on Notice, calling on the court to set down that point of law for hearing and determination at the time the case comes up for trial. See the case of Moyosore vs. Gov. of Kwara State (2012) 5 NWLR (pt. 1293) 242, where Order 26 Rule 2 of High Court (Civil Procedure) Rules of Kwara State (Similar to Order 24 Rule 2 of Kano State High Court Rules) was considered, and it was held:
“That provision followed rule one of that Order which says:” No demurrer shall be allowed.” I believe this was meant to check or curtail the usual tendency by the defence to resort to bubby traps and ambushing to abort trial of matters on their merit, by relying on technicalities to deny the claimant the hearing of his case on the merit. And often times, the technical Justice which the Defendant secure by aborting the trial on merit becomes a mere temporary relief which only delayed the trial of the substantive matter, and when the technical Justice is set aside, on appeal, the parties go back to square one, after spending all the time and resources pursuing shadows.
That is why the law would require such a point of law, which the Defendant has, which, is capable of disposing of the case in limine if raised and sustained, to be pleaded in the statement of defence and properly raised, thereafter for the judge to dispose of either before the trial or at the trial.”
It was further held in that case (Moyosore vs. Gov. of Kwara State) that “… Matters which should be raised in the pleadings and which go to the merits of the case should be taken up in the pleadings, in lieu of demurrer, pursuant to Order 26 Rule 2 of the High Court (Civil Procedure) Rules. Such matters include issues relating to cause of action, ground of defence, statutory provisions or defences, illegality and damages.” See also Okoye vs. Nigerian Construction and Furniture Co. (1991) 6 NWLR (Pt. 199) 501 at 540; Nonye vs. Anyichie (2005) 2 NWLR (Pt. 910) 623 at 659.

The learned trial Judge was not, therefore, properly guided, when he struck out the case of the Appellants, on the application of the Respondent, even when the Respondents were in breach of the rules for invoking the powers of the court to entertain such motion, having not filed their statement of defence, even after obtaining leave extension of time, twice, to do so.

The trial Court made a further blunder, when it held that Appellants’ Amended Statement of Claim did not carry any relief sought and so Appellant, had no reliefs, and that the said Amended Statement of Claim (without reliefs) had superceded the writ of summons (which had reliefs). Appellants had, in paragraph 34 of their Amended Statement of Claim, adopted their particulars of Claim as stated in the writ of summons. But the Trial Court relied on the case of Garau vs. Olomu (2001) FWLR (Pt. 41) 1839 to say that that adoption was improper and that the Amended statement of claim superceded the writ of summons.

It is the law that usually the statement of claim suppercedes the writ of summons, as it gives more detailed particulars and facts about the case of the Plaintiff. But in this case, that, of course, is not the position of the law, as that same case, of Garau vs. Olomu, on appeal to the Supreme Court, in (2013) LPELR – 20340 (SC) was resolved thus:
“A process is said to supercede another, if it is subsequent to and completely severed from that other. Once there is interconnectivity between the process that was first in time and the subsequent process, the latter cannot be rightly said to have superceded the former. For supercession of the earlier process by the subsequent process to occur, there must be a complete disconnect between the two imposed by the fact of the one completely occupying the place or role of the other.”

In this case (at hand) paragraph 34 of the amended statement of claim expressly connected the statement of claim to the writ of summons, with regards to the reliefs sought. That, automatically, in my view, lifted the reliefs in the writ of summons to the amended statement of claim. Of course, in law, the writ of summons is usually read and considered, jointly, with the statement of claim and not in isolation, as the former originates the case and the latter elaborates the detail facts and claims therein.
I, therefore, resolve this issue in favour of the Appellants.

On Issue 2 Surprisingly, the learned counsel for the Respondent struggled to defend the indefencible, even when he admitted that
“By the ruling of the 11th day of July, 2003, the rights of the Appellants and the Respondents were determined and there was no restraining or injunctive orders against the Respondents in respect of the property at Plot 204 Kawaji Quarter, Kano”

Why then did the Respondents file a fresh suit (motion exparte) in the same suit NO. K/178/2000, seeking to eject the Appellants from the property, stealthily, without affording the Appellants the opportunity to be heard? Of course, the trial court had become functus officio in the suit No. K/178/2000, on 11/7/03, after striking out the Appellants’ suit.

By law, once a court had disposed of a case, it has no powers (jurisdiction) to entertain the same suit again in any guise, except where there is ancillary application for stay of execution, or for installmental payment, or where there was some error or defect, which warrants application to correct the same or to set the judgment/ruling aside. Even where a case has been wrongly struck out and the Plaintiff wants it to be restored, he cannot bring application in the same suit number which was struck out, but on a miscellaneous number, seeking to relist the case which was struck out. See the case of Gov. of Zamfara State & Ors vs. Alh. Suleiman Mohammed Gyalange & Ors. (2012) LPELR – 9715 (sic); Olufunsho & Ors. vs. Global Soap & Detergent Ind. Ltd (2013) 8 WRN 32; Kayode vs. Abdulfatai (2012) 33 WRN 145.

In the case of Ayoade vs Spring Bank Plc (2014) 4 NWLR (Pt. 1396) 93, it was stated that:
“One of the cardinal requirement of law, to imbue a court with jurisdiction to hear a case, is that, the person to be affected by its decision must be duly summoned or served with processes of court and given opportunities to be heard or defend themselves. That is an inalienable constitutional right of every person. A court has no jurisdiction to make orders to bind a party that was not given opportunity to be heard by the court before issuing the orders, except such persons are agents, servants, or privies of the parties to the case, in which case they are contemplated in the parties before the court… (Thus) having contemplated making the occupiers of the said property, victims or casualties, at the receiving end of the application filed by the 1st Respondent, as it aimed at affecting them, the 1st Respondent had a legal and moral duty to make the occupants parties to the suit, to give them opportunity to be heard and to defend themselves before visiting them with any calamity, which the relief it sought was bound to inflict on the said occupiers.” See also SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317; British American Tobacco Nig. Ltd Vs. International Tobacco Co. Plc (2012) 39 WRN 60; (2013) NWLR (Pt. 1339) 493.

The Respondents’ application filed on 15/7/2000, was, to say the least, a fraud as it hid under an old suit number to eject the Appellants from the property in question, after the striking out of their case, whereas the matter was a fresh suit, and yet to be served on the Appellants!
The lower Court bore the greater blame for allowing such fraud and making orders to eject a party it did not hear and had given no opportunity to be heard.

Ordinarily, ex-parte orders are not appealable (Section 14(1) of the Court of Appeal Act, 2004), but that cannot, in my opinion, permit or recognize the charade or fraud which the order of the trial court made on 16/7/03 in defunct suit connotes. The said order is hereby declared null and void, as the learned trial Court had no vires to entertain the application and to grant the same, in breach of the Appellants’ constitutional rights to fair hearing, enshrined in Section 36 (1) of the 1999 Constitution, as amended.
This issue is, therefore, resolved in favour of the Appellants also.

On the whole, this appeal is adjudged meritious and is allowed. The rulings of the lower Court made on 11/7/03 and on 16/7/03 in the duplicated suit NO. K/178/2000, are hereby set aside. The case of the Appellant (K/178/2000) therefore revives, automatically, for hearing and determination, and I hereby remit the same to the Chief Judge of Kano State and order that the same be re-assigned to another Judge to be heard on the merits.
The Respondents shall pay the cost of this appeal, assessed at Fifty Thousand naira (N50,000.00) only.

ABDU ABOKI, J.C.A.: I have the privilege of reading before now the lead judgment of my learned brother ITA G. MBABA JCA which has just been delivered. I agree with his conclusion that this appeal has merit and ought to be allowed. Same is allowed and I abide by the consequential orders contained therein as to costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita George Mbaba JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the conclusions in the lead judgment.

Appearances

M. I. Ikpe Esq. (who settled the brief)For Appellant

AND

Felix Jones Osimerha Esq. (who settled the brief) and U. M. Medugu (Miss)For Respondent