UWAZURUIKE v. NWAOZUZU & ORS
(2022)LCN/16599(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/OW/552/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
CHIEF (BARR.) RAPHAEL UWAZURUIKE APPELANT(S)
And
1. MARK C. NWAOZUZU 2. COMMISSIONER OF POLICE IMO STATE 3. MRS. CHINWENDU IHUAKU OPARAKU 4. MRS OGHIDE CHINYERE S. 5. C.N. UKACHUKWU AND SONS LIMITED 6. GOVERNOR OF IMO STATE 7. HON. COMMISSIONER MIN. OF LANDS, SURVEY, HOUSING AND URBAN PLANNING RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY CAN AMEND HIS ORIGINATING PROCESS AND PLEADINGS AT ANYTIME
By Order 24 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2017, it is provided that: “A party may amend his Originating Process and Pleadings at any time before the close of Pre-trial conference and not more than twice during the trial before judgment.” Order 24 Rule 3 also provides: “Where any Originating Process and/or a Pleading is to be amended, a list of any additional witness to be called together with his written statement on oath (and/or a further written statement on oath of an existing witness) as well as a copy of any document to be relied upon, shall be filed with the application.” PER ADEFOPE-OKOJIE, J.C.A.
WHETHER OR NOT NON-COMPLIANCE WITH THE RULES OF COURT AFFECTS THE SUBSTANTIVE LAW IN RELATION TO THE JURISDICTION OF THE COURT
Where non-compliance with the Rules does not affect the substantive law in relation to the jurisdiction of the Court, it can be waived, it was held, in Poroye v Makarfi (2018) 1 NWLR Part 1599 Page 91 at 147 Para E-F per Ariwoola, JSC. Courts have moved away from the narrow technical approach to justice and pursue instead the course of substantial justice and the hearing of a case on its merits. Technicalities, it has been held, are a blot upon the administration of the law and the Courts have moved away from allowing them to make an ass of it and dent the image of justice. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR Part 523 Page 1 at 52 Para E-F per Ogundare JSC. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the Imo State High Court, Owerri Judicial Division, delivered on 29th March 2018, by T.E. Chukwuemeka Chikeka J, striking out the Appellant’s Writ of Summons, on the ground of incompetence. Aggrieved, the Appellant filed a one ground Notice of Appeal. In response to the appeal, the 1st Respondent filed a Notice of Preliminary Objection on 2/11/20, arguments in respect of which are contained in the 1st Respondent’s Brief.
In the Notice of Preliminary Objection, the 1st Respondent sought the following:
“An order of Court dismissing the appeal for lack of jurisdiction, being incompetent and an abuse of the process of this Honourable Court”
Several grounds, numbering 10, were given in support of the Notice
Reacting thereto, the Appellant filed a Reply Brief on 1/2/21 to the Notice. In it, learned Appellant’s Counsel, E.E. Chukwuka, Esq contended that the Preliminary Objection and arguments in respect thereof are an abuse of Court process, time wasting and a duplication of the arguments canvassed by the 1st Respondent in opposition to the main appeal, which arguments also centre on non-compliance with Order 3 Rule 2 of the High Court of Imo State (Civil Procedure) Rules 2017.
I agree with the Appellant’s Counsel. A resolution of these contentions in the Preliminary Objection, which arguments have been replicated in the 1st Respondent’s Brief in response to the substantive appeal, will entail a duplicitous exercise and a waste of judicial time and energy. Prudence is in reserving the resolution of the objection to the substantive appeal.
MAIN APPEAL
The facts leading to the appeal are that the Appellant had, by his Writ of Summons and Statement of Claim, sought a declaration of title, damages for trespass and a perpetual injunction against the 1st and 2nd Respondents among other Defendants. The other Defendants were struck out as parties, by the lower Court and the 3rd to 7th Respondents were joined as Defendants. The Appellant filed a motion on 10/7/2017 for amendment in order to plead his title documents which were inadvertently omitted in the Statement of Claim. The Defendants, at this stage of the proceedings were the 1st and 2nd Respondents. This motion was however withdrawn at the proceedings of 30/1/2018 and consequently struck out. Immediately following, the Court, at the same proceedings, entertained a Notice of Preliminary Objection which had been filed by the 3rd Respondent (3rd Defendant before the lower Court) in which it was contended that the Court lacked jurisdiction to entertain the suit.
The ground was that a defective suit cannot be amended, as the suit was “taken out contrary to Order 3 Rule 2(1) of the High Court (Civil Procedure) Rules 2008 in pari materia with Order 3 Rule (2) (1) (a) (b) (c) and (d) of the High Court (Civil Procedure Rules 2017 which renders this suit incompetent”
The Court, in its judgment delivered on 28th day of March 2018, restated the contents of both the 2008 and 2017 Rules requiring that the Writ of Summons be accompanied by the list of witnesses, written statement on oath of the witnesses and copies of document to be relied upon at the trial and held that the Writ of Summons filed by the Appellant is incompetent and struck the same out.
Issues for Determination
In the main appeal, the sole issue distilled by the Appellant’s Counsel, E.E. Chukwuka Esq, in the Appellant’s Brief of Arguments filed on 9/5/2019 and deemed properly filed on 18/6/22, is the following:
Whether the learned trial Judge was right in upholding the 3rd Defendant’s preliminary objection and refusing the Plaintiff/Appellant’s Motion for Amendment to plead his documents of title which he omitted at the time of filing his suit and instead struck out the entire suit.
In the 1st Respondent’s Brief of Arguments settled by J.C. Nwandu Esq, filed on 2/11/20 and deemed properly filed on 18/1/21, the issue formulated for determination is the following:
Whether the learned trial Judge was not right in upholding the Preliminary Objection and striking out the Appellant’s suit for being incompetent.
In the 3rd Respondent’s Brief of Arguments settled by Williams N. Opara Esq, filed on 19/6/2020, the sole issue formulated for determination is the following:
Whether the Court below was right to strike out the Plaintiff’s suit for being incompetent.
In the 5th Respondent’s Brief of Augments filed on 17/8/20, deemed properly filed on 18/1/21 and settled by J.T.U. Nnodum OFR SAN, the sole issue for determination distilled, is the following:
Whether the trial Court rightly struck out the suit filed by the appellant.
None of the other Respondents filed any Briefs of Argument nor were they represented at the hearing of this appeal.
The issues for determination, I note, are the same, with slight differences. For the purposes of succinctness, I shall rephrase the singular issue, thus:
Whether the trial Judge was right to uphold the Preliminary Objection of the 1st Respondent and to strike out the Appellant’s suit for being incompetent.
RESOLUTION
The various arguments and counter arguments of Counsel arise from the order of the Court contained in its judgment delivered on 29/3/18 striking out the Appellant’s suit for being incompetent, contained at pages 59-63 of the Record.
The 1st, 3rd and 5th Respondents in their respective briefs of argument have contended that as the Writ of Summons was not accompanied by any documents to be relied upon at the trial, the defect was fundamental and was not one that could be amended.
Furthermore, as there was no motion to regularize at the time the Notice of Preliminary Objection was argued, the Appellant cannot benefit from Order 5 Rule 1 of the Rules.
My first observation in this matter is that in the 7 paragraph Statement of Claim, the Appellant, at Pages 5-6 of the Record pleaded facts leading to the reliefs sought. No document was pleaded.
The question therefore is how the Statement of Claim can be said to be deficient for not frontloading documents when no document was pleaded?
Could the Court be referring to a Motion filed by the Appellant to amend its pleading to plead documents inadvertently omitted, which motion was filed on 28/3/2018, a day before the delivery of the Court’s judgment on 29/3/2018, yet was not referred to by the Court?
Whatever the situation, it is clear that the Respondents and the lower Court were operating under a misapprehension that documents were pleaded but not frontloaded and that this rendered the Writ and Statement of Claim void. No documents were pleaded and having not been pleaded, there exists no incompetence in the Appellant’s processes and the Judge was in error to have so held.
Even if documents were erroneously omitted in the pleadings and sought to be pleaded by way of amendment, can it be said that the Writ is thereby defective? It certainly cannot! By Order 24 Rule 1 of the High Court of Imo State (Civil Procedure) Rules 2017, it is provided that: “A party may amend his Originating Process and Pleadings at any time before the close of Pre-trial conference and not more than twice during the trial before judgment.” Order 24 Rule 3 also provides: “Where any Originating Process and/or a Pleading is to be amended, a list of any additional witness to be called together with his written statement on oath (and/or a further written statement on oath of an existing witness) as well as a copy of any document to be relied upon, shall be filed with the application.” Underlining Mine In the instant case, pre-trial conference had not even started, leaving the Appellant with the latitude to have amended his Writ of Summons at any time before the close of pre-trial conference. All that is required, by Order 24 Rule 3 supra is that any document to be relied upon, consequent upon such amendment, be filed along with the application. The trial Judge was clearly in error to have held as he did. Even if there was a defect in the form of the processes filed by the Appellant, Order 5 Rule 1 of the said Rules allows such defect to be treated as an irregularity, insufficient to nullify the proceedings. Where non-compliance with the Rules does not affect the substantive law in relation to the jurisdiction of the Court, it can be waived, it was held, in Poroye v Makarfi (2018) 1 NWLR Part 1599 Page 91 at 147 Para E-F per Ariwoola, JSC. Courts have moved away from the narrow technical approach to justice and pursue instead the course of substantial justice and the hearing of a case on its merits. Technicalities, it has been held, are a blot upon the administration of the law and the Courts have moved away from allowing them to make an ass of it and dent the image of justice. See Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR Part 523 Page 1 at 52 Para E-F per Ogundare JSC. Striking out the processes of the Appellant was certainly done prematurely and for no valid cause. I accordingly agree with the Appellant’s Counsel, that the lower Court was wrong to uphold the Preliminary Objection of the 3rd Respondent and to strike out the Appellant’s suit for being incompetent. I resolve the sole issue for determination in favour of the Appellant. I also resolve the Preliminary Objection of the 1st Respondent against him (1st Respondent) and dismiss the same.
This appeal, in consequence, succeeds and is allowed. The judgment of the lower Court, delivered on 29/3/2018 in Suit No. HOW/127/2016 is set aside. This case is remitted to the Chief Judge of Imo State for reassignment to another Judge of the High Court for the hearing of the Motion of the Appellant for amendment and the determination of the case on its merits.
The Respondents shall pay costs of N50,000.00 each to the Appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his opinion and conclusions.
I set aside the judgment of the Imo State High Court, Judicial Division delivered on the 29th day of March, 2018.
I abide by the consequential order made as to costs.
IBRAHIM WAKILI JAURO, J.C.A.: I have read in draft, the judgment just delivered by my learned brother O. A. Adefope-Okojie, JCA.
I subscribe to the reasoning and conclusions in the lead judgment and that there is indeed merit in the appeal.
Our Courts are enjoined to move away from technicality and place emphasis on substantial justice at all material times. Odua Investment Co. Ltd V. Talabi (1997) 10 NWLR 523 pg. 1 at 52 para. E-F Ogundare, JSC. It is in consequence of this that I too allow the appeal.
I abide by the orders made therein.
Appearances:
E.E. Chukwuka, Esq. For Appellant(s)
J.C. Nwandu, Esq., with him, H.C. Gilbert and B.C. Nnawuihe – for 1st Respondent
Williams Opara – for 3rd Respondent
J.T.U. Nnodum, SAN, with him, E.A. John-Nwosu and C.S. Esomonu – for 5th Respondents
Adaku Ugboma, Principal State Counsel – for 6th and 7th Respondents For Respondent(s)
