AUTO ENGINEERING SALES & SERVICES LIMITED & ANOR v. MERCANTILE BANK OF NIGERIA PLC & ORS
(2016)LCN/8390(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/C/146/2012
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. AUTO ENGINEERING SALES & SERVICES LTD
2. MR AKANIMO SUNDAY NTUK Appellant(s)
AND
1. MERCANTILE BANK OF NIGERIA PLC
2. COMMISSIONER FOR WORKS, HOUSING AND TRANSPORT, CROSS RIVER STATE
3. THE GOVERNMENT OF CROSS RIVER STATE OF NIGERIA
4. THE ATTORNEY GENERAL OF CROSS RIVER STATE
5. NIGERIA DEPOSIT INSURANCE CORPORATION
6. PROFESSOR UKANDI GODWIN DAMACHI Respondent(s)
RATIO
CANNONS OF INTERPRETATION: THE LITERAL RULE; WHETHER THE COURT SHOULD GIVE SAME ORDINARY LITERAL INTERPRETATION WHERE THE WORD OF THE STATUTE ARE CLEAR AND UNAMBIGUOUS
Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK v. MAIWADA (2012) 51 NSCQR 155 at 172. The words used in the 1987 Rules of the High Court of Cross River State are totally clear and unambiguous. They expect a writ to be commenced in person by the litigant or by his legal practitioner. Where he acts through a legal practitioner, the said legal practitioner must be disclosed. The appellants in this case did not act personally and with the 1st appellant being an artificial person, they were naturally expected to have acted through a legal practitioner.
Sections 2 (1) and 24 of the Legal Practitioners Act, 1975 provide as follows:
2. Entitlement to practice
(1) Subject to the provisions of this Act, a person shall be entitled to practice as a
Barrister and solicitor if, and only if, his name is on the roll.
Section 24:
“legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings;
The writ of summons here was not signed by anyone and no legal practitioner was indicated as having prepared it or taken it out on behalf of the plaintiffs.
The question here is not novel and had attracted the attention of the highest court in the land as far back as 1967 in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMANAKINDE (1962) NMLR 263 and the position taken was that such document was a nullity as only a legal practitioner properly so called within the con of the Legal Practitioners Act, duly enrolled at the bar had the capacity to sign or initiate a process and any defect in this regard vitiates the entire process.
The said issue was extensively considered by the Supreme Court more recently in the notorious case of OKAFOR V. NWEKE (2007) 10 NWLR (PT 1043) 521, (2007) 3 where the earlier position was reiterated and affirmed.
An unsuccessful attempt was made to move the Apex Court to depart from the position in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMAN AKINDE (supra) and OKAFOR VS NWEKE (supra) which necessitated the sitting of a full panel of the said Court at which eminent legal practitioners in the country were invited as amici curie. This was in FIRST BANK OF NIGERIA LTD & ANOR v. MAIWADA & ORS (2012) 51 NSCQR 155 and FRAPHINO PHARMACEUTICALS LTD & ANOR VS JAWA INTERNATIONAL LTD & ORS (2012) 51 NSCQR 269. This position was further reiterated by the Apex Court in SLB CONSORTIUM LTD V. NNPC (2012) 52 NSCQR 269. PER. JOSEPH OLUBUNMI KAYODE, J.C.A.
PRACTICE AND PROCEDURE: COUNTER-CLAIMANT: THE IMPLICATION OF THE FAILURE OF PLAINTIFF/CLAIMANT TO FILE A DEFENCE TO THE COUNTER-CLAIM AND THE NATURE OF THE COUNTER-CLAIM
The 6th respondent/defendant like any other counter-claimant did not stand on the fees paid by the appellants/plaintiffs. He was at liberty to name defendants not already party to the case of the initial plaintiffs. Like in any counter-claim if the plaintiff or claimant fails to file a defence to the counter-claim, the counter claim is deemed admitted. See USMAN V. GARKE (2003) 15 NSCQR 24 at 42. By all intendments of the law, the counter-claimant is a plaintiff or claimant in his own right with respect to his counter-claim. It cannot be overemphasized that the counter-claim is a separate, distinct and independent action. See JERICNIGERIA LTD V. UNION BANK OF NIGERIA (2000) 4 NSCQLR 254 at 272, OGBONNA v. A.G. IMO STATE (1992) 1 NWLR (PT 220) 647 and OYOM AGBOR & ORS V. CHARLES ADOMI OBIA (2013) ELC (1116) I. PER. JOSEPH OLUBUNMI KAYODE, J.C.A.
COURT: JURISDICTION; CONDITIONS FOR THE VALID EXERCISE OF JURISDICTION BY A COURT
The valid exercise of jurisdiction by a Court is based on certain conditions precedent carefully laid out by the Supreme Court. A Court is accordingly competent when:
1. It is properly constituted as regards the number and qualifications of its members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case coming up before the Court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374 at 379 – 380. PER. JOSEPH OLUBUNMI KAYODE, J.C.A.
JOSEPH OLUBUNMI KAYODE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Cross River State, Calabar Judicial Division delivered on the 5th day of April, 2012 by Akon B. Ikpeme J:
The facts of the case are reasonably straight forward. The appellants were customers of the 1st respondent which subsequently by virtue of liquidation, came under the control of the 5th respondent.
The appellants through the 1st appellant obtained a loan secured by legal mortgage from the 1st respondent. Appellants had difficulties repaying the loan upon which the 1st respondent invoked the powers conferred on it by the legal mortgage and sold the mortgaged property to the 6th respondent. The appellants took out a writ of summons at the High Court of Cross River State in respect of the said sale of the said mortgaged property seeking the following reliefs contained in paragraph 31 of their Further Amended statement of claim dated 16th May, 2003 contained on pages 128-136 of the record of appeal as follows:
(1) A declaration that the plaintiffs are not indebted to the 1st
1
defendant in the undisclosed sum of money said to be owed by 1st plaintiff to the 1st defendant and in which the deed of mortgage dated on the 22nd day of October, 1995 is involved.
(2) A declaration that the decision of the 1st defendant to sell plaintiff?s property situate at Plot 7, Block J, Northern Industrial Estate, Calabar and covered by Certificate of Occupancy No CA/1/79 when 1st defendant had consistently refused to send to plaintiffs on request their statement of account No. 159 is done out of bad faith and therefore null and void and of no effect whatsoever.
(3) An order for the 1st and 5th defendants to produce 1st plaintiff?s statement of account in account No. 159 kept with the 1st defendant for purpose of reconciliation of plaintiffs’ account with 1st defendant.
(4) An order setting aside the assignment by 1st defendant to Professor Ukandi Godwin Damachi on 25th May, 1995 of plaintiffs property situate and known as plot 7, Block J, Northern Industrial Estate Calabar and registered as No. 3 at page 3 in volume 31 in the Lands Registry, Calabar when this suit No. C/99/95 commenced on 24th February, 1995 is still pending
2
in this honourable Court.
(5) An order directing the 2nd, 3rd and 4th defendants to cancel the assignment of plaintiffs’ property and registered as No. 3 at page 3 in volume 31 of the Lands Registry, Calabar.
(6) N10,000,000.00 damages.
(7) An injunction restraining the 1st and 5th defendants, its servants, workmen or privies from selling, alienating, interfering or dealing in any other way or manner inconsistent with the plaintiffs’ right of ownership of the property situate at Plot 7, Block J, Northern Industrial Estate, Calabar and covered by Certificate of Occupancy No. CA/1/79.
The case suffered a chequered fate passing through 4 different Judges before ending up before Hon. Justice Ikpeme who eventually conducted the trial to conclusion. The processes were also subjected to a number of amendments which increased the number of defendants systematically from just the 1st respondent to six.
On being joined to the action, the 6th respondent filed a statement of defence and counter-claim on the 19th April, 2005 contained on pages 166-169 of the record of appeal, wherein he counter-claimed in paragraph 26 thereof as follows:
(a) A
3
declaration that the sale of the property lying and situate at Plot 7, Block J, North Industrial Estate, Calabar consisting of an area of 1, 902 Hectares covered by Certificate of Occupancy No. CA/1/79 and registered as No. 4 at page 4 in volume 148 Land Registry Office, Calabar is proper and valid having been sold on the 3rd February, 1995 and now registered as No. 3 at page 3 in volume 31 Land Registry Office, Calabar and that the date of 25th May, 1995 on the Deed of Assignment inserted as that was not the date of sale.
(b) An order of perpetual restraining the plaintiffs, their agents, assigns or representatives from interfering, disturbing or stopping the 6th defendant or his assigns, representatives or agents from the use or occupation of Plot T, Block J, North Industrial Estate, Calabar consisting of an area of 1,902 Hectares covered by Certificate of Occupancy No. CA/1/79 and registered as No. 4 at page 4 in Volume 148 Land Registry Office, Calabar is proper and valid having been sold on the 3rd February, 1995 and now registered as No. 3 at page 3 in volume 31 Land Registry Office, Calabar.
(c) An order of eviction of the plaintiffs from the
4
property and granting of possession forthwith to the 6th defendant of all that property lying and situate at Plot 7, Block J, North Industrial Estate, Calabar consisting of an area of 1, 902 Hectanes covered by certificate of occupancy No. CA/1/79 and registered as No. 4 at page 4 in volume 148 Land Registry office now registered as No. 3 at page 3 in volume 31 Land Registry Office, Calabar.
The case of the appellants at trial was that the sale of the mortgaged property by the 1st respondent to the 6th respondent came after their suit at the trial Court had commenced and after the respondents then defendants had been restrained by the Court and that the 1st appellant had fully liquidated its indebtedness to the 1st respondent thereby rendering the sale of the mortgaged property unnecessary.
The case of the 1st and 5th respondents on their part was that the appellants failed to honor the terms of the loan agreement upon which they sold the mortgaged property to the 6th respondent in accordance with the deed of legal mortgage between the parties.
?
For the 6th respondent, his case was that he was offered the mortgaged property based on the failure of
5
the appellants to liquidate the indebtedness of the 1st appellant to the 1st respondent according to the terms of the legal mortgage and that he purchased it prior to the commencement of this suit. He counter-claimed for several reliefs including possession of the said property.
At the conclusion of the trial, the learned trial Judge found no merit in the appellants’ case and instead found for the 6th respondent granting his counter-claim.
Dissatisfied, the appellants invoked the appellate jurisdiction of this Court via a notice of appeal which was subsequently amended. The amended notice of appeal was filed on 4th June, 2014 containing 10 grounds.
The appeal was contested by only the appellants and the 6th respondents.
At the hearing thereof, Mr. Fashanu, SAN, the learned senior counsel for the appellants adopted the appellants’ brief filed on the 18th September, 2014 but deemed properly filed and served on the 4th November, 2015 as well as the appellants’ reply brief filed on the 18th November, 2015 as the arguments of the appellants in furtherance of this appeal. He urged the Court to allow the appeal.
?Therein, the learned senior
6
counsel distilled 4 issues for determination as follows:
1. Whether the learned trial Judge was not wrong to assume jurisdiction in the instant case without a valid writ of summons. (Ground 1).
In the alternative
2. Whether the learned trial Judge was not wrong in basing her judgment on an alleged deed of legal mortgage for which there was no evidence that it was registered in accordance with the law. (Ground 2).
3. Whether the learned trial Judge was not wrong in giving judgment for the 6th defendant despite her finding that the alleged deed of assignment for the 6th defendant was done on 25th May, 1995 after the suit had commenced on 24th February, 1995, and despite the 6th defendant not being a party in the case. (Grounds 4, 5, 6 and 8).
4. Whether the learned trial Judge was not wrong when she omitted to consider in her judgment relevant and material issues and evidence such as the purpose and effect of Exhibit 14 which was tendered admitted during the trial; the issue of the invalidity of the auctioneer?s public notice; exact amount of appellants’ indebtedness. (Ground 7, 9 and 10).
?For the 6th respondent, his lead
7
counsel, Mr. Agi, SAN adopted the 6th respondent’s brief of argument filed on the 11th September, 2015 but deemed properly filed and served on the 4th November, 2015. Therein, the learned senior counsel while retaining the respective substances, reformulated the issues for determination as follows:
1. Whether in the circumstances of this appeal and from the originating processes filed in the Court below by the appellants and 6th respondent, the learned trial Judge rightly assumed jurisdiction to hear and determine the suit as constituted.
2. Whether the learned trial Court was on right footing not to have considered the issue of non-registration of the legal mortgage as a charge on the company’s asset of the company registry, when same was not raised by the parties in the Court below and no evidence was adduced thereat and on record in that regard.
3. Whether the doctrine of lispendis operate to vitiate a valid contract of sale of land made before the res become sub judice and nullify the subsequent registration of same.
4. Whether the learned trial Judge was right to have given a comprehensive consideration of the relevant issues raised by
8
parties and adequately elaborating the consideration of one issue to include others.
Having earlier noted that the issues formulated by the two sides are in substance the same, I shall adopt the issues as formulated by the appellants if only for the simple fact that they originated the appeal.
That having been said, the first issue to be resolved is issue 1 which has to do with jurisdiction and which has fundamental implications for the entire appeal no matter in whose favour it is resolved. The said issue is;
Whether the learned trial Judge was not wrong to assume jurisdiction in the instant case without a valid writ of summons.
?Arguing the said issue, the learned lead counsel for the appellants, Mr. Fashanu, SAN submitted that the 1st appellant being an artificial person must of necessity be represented by a legal practitioner in commencing the writ originating the entire case, and that in accordance with the then prevailing Rules of the Cross River State High Court (Civil Procedure) Rules, the said writ ought to have been signed by a legal practitioner but that the writ taken out by the appellants as plaintiffs was not signed by a legal
9
practitioner thereby rendering it void. He referred to Order 5 (8) of the Cross River State High Court (Civil Procedure) Edict, 1987, Sections 2 (1) and 24 of the Legal Practitioners Act, 1990, REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA V. RAHMAN AKINDE (1967) NMLR 263, MORAKINYO V. GOV. OYO STATE (2013) 51 WRN 106 at 121-122, SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (pt. 1252) 317 and OKAFOR V. NWEKE (2007) 19 WRN 1.
The learned senior counsel submitted that the failure to commence a suit with a valid writ goes to the root of the action and vitiates the jurisdiction of the Court to adjudicate thereon. He referred to MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and MOHAMMED MARI KIDA V. A.D. OGUNMOLA (2006) 6 SC 147.
He further submitted that the consent of parties cannot confer jurisdiction on a Court where such is lacking and referred to ADESOIA V. ABIDOYE (2001) 2 WRN 39 and JADESINMI V. OKOTIE-EBOH (2001) 2 WRN 126.
Mr. Fashanu, SAN further submitted that since the writ which initiated the entire action was invalid, the orders made by the trial Court joining the 2nd to the 6th respondents as defendants to the suit was fatally affected
10
and ditto for subsequent steps taken by the said respondents including pleadings filed by them and orders made by the trial Court even where the defect was raised on appeal for the first time. He referred to APGA V. ANYANWU (2014 14 WRN 1 at 21-22.
He submitted that it was mandatory for the plaintiff to amend the writ once fresh parties were joined and that failure to do so further robbed the Court of jurisdiction. He referred to Order 11 (13) of the said 1987 Rules.
He considered the implications of the appellants seeking to benefit from their own errors and submitted that the issue goes beyond that as the law must naturally take its course as the issue could even be raised suo motu by the Court.
He urged the Court to resolve the issue in favour of the appellants.
?
For the 6th respondent, his lead counsel, Mr. Agi, SAN submitted that the authorities relied upon by the appellants relate to the specific requirements for the signature of a legal practitioner whereas pursuant to the provisions of the High Court of Cross River State (civil procedure) Rules, 1987 under which the writ in issue was filed, the signature of a legal practitioner was
11
unnecessary as the writ only required the signature of the Registrar for its issuance and validity.
The learned senior counsel argued most strenuously that the requirement for signature of a legal practitioner only applied to pleadings under the said Rules and that the pleadings were filed separately and duly signed by counsel. He pointed out differences between the then provisions and subsequent provisions in the new Rules now applicable in that jurisdiction.
Mr. Agi, SAN submitted that the appellants could not profit from their own wrong doing and that having failed to timeously take steps in respect of the alleged irregularities, they would be deemed to have waived it and would no longer be permitted to complain. He highlighted distinguishing factors between this case and the cases referred to by Mr. Fashanu, SAN and referred to AYANWOTO v. OKOYE (2010) 5 NWLR (pt. 1188) 497 at 512.
He urged the Court to invoke the doctrine of impari delicto against the appellants and referred to UMARU v. TUNGA (2012) ALL FWLR (PT. 607) 726 at 745 and SYKES v. BEACHOS (1879) LR 11 CH D 170.
?On the contention of the appellants that their failure to amend
12
the writ of summons subsequent to the orders of joinder further deprived the Court of jurisdiction, the learned senior counsel retorted that this was a mere irregularity pursuant to Order 2 (i) and (ii) of the said 1987 Rules.
He finally submitted that the defects in the writ of the plaintiffs did not affect the counter-claim which constituted a separate action and was accordingly properly adjudicated upon by the learned trial Court. He referred to USMAN v. GARKE (2003) 14 NWLR (pt 840) 261 and OGBONNA v. A.G. IMO STATE (1992) 1 NWLR (pt. 220) 647 at 675.
He urged the Court to hold that the trial Court had jurisdiction.
Making his response via his reply brief, Mr. Fashanu, SAN, submitted that the complaint about the validity of the writ was not a mere irregularity as per the Rules but was about non-compliance with the Legal Practitioners Act which rendered the writ invalid.
He insisted that the signature of a legal practitioner on the writ was necessary pursuant to the 1987 Rules and failure to do this invalidated the said writ notwithstanding the signing of same by the Registrar. He referred to SLB CONSORTIUM LTD v. NNPC (supra) ODEJAYI v.
13
HENLEY INDUSTRIES LTD (2013) LPELR-20368(CA).
He reiterated his earlier submission that while the counter-claim was a separate action, it could only be brought by a defendant properly named in the writ or validly joined to the action, neither of which applied to the 6th respondent thereby rendering his counter-claim a nullity.
He urged the Court to find for the appellants.
This issue although not raising a recondite point of law however presents an incongruity emanating as it does from the appellants who were plaintiffs in the trial Court who initiated the action.
Having lost before the trial Court, they came to an epiphany and attacked the validity of their own originating process clearly indicating some desperation which could in a sense be appropriately described as forensic rascality.
However, the point has been raised and must be resolved. The huge elephant has been placed in the middle of the room and cannot be ignored.
?
The writ of summons here was issued and signed by the Registrar on the 246 February, 1995 and is contained on 1-2 of the record of appeal. On page 2 thereof is the claim of the plaintiff against the defendant
14
(1st respondent herein) and underneath is as follows without signature of specific name of legal practitioner;
This WRIT was issued by G.A. Udousoro & Co. 77B Goldie Street, Calabar, Cross River State of Nigeria.
The two senior counsel were unable to agree on what constituted valid issuance of a writ under the High Court of Cross River State (Civil Procedure) Edict, 1987, Cross River State Edict No. 7 of 1987 which was in operation at the material time herein after referred to simply as 1987 Rules of the High Court of Cross River State.
Order 5 thereof specifically applied to writ of summons. Rule 1 provides thus:
1. A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiff?s solicitor by completing Form 1 in the appendix to these rules; but the Registrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of on oral application made and on that record
15
a writ of summons may be prepared, signed and issued.
Rule 12 deals with endorsement as to legal practitioner and address and it provides thus:
12 (1) where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff’s address and the legal practitioner’s name or firm and a business address of his within the jurisdiction and also, if the legal practitioner is the agent of another, the name or firm and business address of his principal.
Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK v. MAIWADA (2012) 51 NSCQR 155 at 172.
The words used in the 1987 Rules of the High Court of Cross River State are totally clear and unambiguous. They expect a writ to be commenced in person by the litigant or by his legal practitioner. Where he acts through a legal practitioner, the said legal practitioner must be disclosed.
?The appellants in this case did not act personally and with the 1st appellant being an artificial person, they were
16
naturally expected to have acted through a legal practitioner.
Sections 2 (1) and 24 of the Legal Practitioners Act, 1975 provide as follows:
2. Entitlement to practice
(1) Subject to the provisions of this Act, a person shall be entitled to practice as a
Barrister and solicitor if, and only if, his name is on the roll.
Section 24:
“legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings;
The writ of summons here was not signed by anyone and no legal practitioner was indicated as having prepared it or taken it out on behalf of the plaintiffs.
The question here is not novel and had attracted the attention of the highest court in the land as far back as 1967 in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMANAKINDE (1962) NMLR 263 and the position taken was that such document was a nullity as only a legal practitioner properly so called within the con of the Legal Practitioners Act, duly enrolled at the bar had the capacity to sign or
17
initiate a process and any defect in this regard vitiates the entire process.
The said issue was extensively considered by the Supreme Court more recently in the notorious case of OKAFOR V. NWEKE (2007) 10 NWLR (PT 1043) 521, (2007) 3 where the earlier position was reiterated and affirmed.
An unsuccessful attempt was made to move the Apex Court to depart from the position in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMAN AKINDE (supra) and OKAFOR VS NWEKE (supra) which necessitated the sitting of a full panel of the said Court at which eminent legal practitioners in the country were invited as amici curie. This was in FIRST BANK OF NIGERIA LTD & ANOR v. MAIWADA & ORS (2012) 51 NSCQR 155 and FRAPHINO PHARMACEUTICALS LTD & ANOR VS JAWA INTERNATIONAL LTD & ORS (2012) 51 NSCQR 269.
This position was further reiterated by the Apex Court in SLB CONSORTIUM LTD V. NNPC (2012) 52 NSCQR 269.
The writ here which initiated the appellant’s case was not signed or prepared by a legal practitioner known to law, the issue is not a mere irregularity pursuant to the1987 Rules of the High Court of Cross River State but an issue
18
of substantive law pursuant to the Legal Practitioners Act. See OKAFOR VS NWEKE (supra) at 534.
That much for the appellants’ case as enunciated by the appellants themselves.
The 6th respondent was joined to the action pursuant to an order of joinder made by the learned trial Judge on the 10th April, 2000. On being joined, the 6th respondent to avoid multiplicity of actions filed a counter-claim for which he was duly assessed and paid the necessary fees. The 6th respondent duly signed his counter-claim according to Law by a legal practitioner properly identified.
The arguments of Mr. Fashanu, SAN seeking to infect the counter-claim with the defects occasioned by the appellants on its case cannot stand the scrutiny of the demands of justice. It is an attempt to stretch technicality to the point of absurdity. The appellants initiated their case via the instrumentality of a writ of summons which necessitates a defendant with the intention of contesting it to file a statement of defence. The statement of defence is therefore tied to the writ of summons and statement of claim.
The counter-claim however stands on its own and is only out of
19
convenience tried with the original claim by justifiable judicial policy of discouraging multiplicity of actions. Agreeing with the postulations of Mr. Fashanu, SAN will indicate that every defendant is better off taking out a separate action to avoid falling into any defect in the case filed by the original plaintiff or claimant. This is certainly not in order and must not be permitted.
Mr. Fashanu, SAN indicated that the defect in the writ vitiated the order of joinder which brought the 6th respondent/defendant into the case and deprives him of a valid basis for initiating his counter-claim.
This argument is however defective in lumping the statement of defence with a counter-claim. The statement of defence of the 6th respondent/defendant arose from his being a defendant to the Appellants/plaintiffs case but his standing to initiate his counter-claim was derived from his cause of action contained in his counter-claim.
?
When the 6th respondent/defendant took out his counter-claim, he was assessed for payment of filing fees and duly paid as shown on page 169 of the record of appeal. In fact, while the appellants/plaintiffs paid the total fees of
20
N366.00 as filing fees for the now defective writ on 24th February, 1995 as evident on page 2 of the record of appeal while the 6th respondent/defendant paid N390.00 as filing fees for his counter-claim on 19th April, 2005, indicated on page 169 as earlier mentioned.
The 6th respondent/defendant like any other counter-claimant did not stand on the fees paid by the appellants/plaintiffs. He was at liberty to name defendants not already party to the case of the initial plaintiffs. Like in any counter-claim if the plaintiff or claimant fails to file a defence to the counter-claim, the counter claim is deemed admitted. See USMAN V. GARKE (2003) 15 NSCQR 24 at 42.
By all intendments of the law, the counter-claimant is a plaintiff or claimant in his own right with respect to his counter-claim. It cannot be overemphasized that the counter-claim is a separate, distinct and independent action. See JERICNIGERIA LTD V. UNION BANK OF NIGERIA (2000) 4 NSCQLR 254 at 272, OGBONNA v. A.G. IMO STATE (1992) 1 NWLR (PT 220) 647 and OYOM AGBOR & ORS V. CHARLES ADOMI OBIA (2013) ELC (1116) I.
As rightfully submitted by Mr. Fashanu, SAN, the defect in the
21
appellants’ case is as regards violation of the Legal Practitioners Act in the sense that it was not shown to have been presented by a legal practitioner but the counter-claim was duly signed by a legal practitioner and suffers no such defect.
The 6th respondent/defendant duly paid all necessary fees and served his counter-claim. The appellants as defendants on being served joined issues with him as required by the Rules of Court thereby waiving any possible irregularity in the said Rules concerning the said 6th respondent and his counter-claim. The 6th respondent in common parlance duly fulfilled all righteousness and cannot be punished for the admitted infractions of the appellants/plaintiffs.
The valid exercise of jurisdiction by a Court is based on certain conditions precedent carefully laid out by the Supreme Court. A Court is accordingly competent when:
1. It is properly constituted as regards the number and qualifications of its members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court
22
from exercising its jurisdiction; and
3. The case coming up before the Court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374 at 379 – 380.
While by the express admission and copious submission of their counsel, the trial Court wrongfully assumed and exercised jurisdiction in respect of the claims of appellants as plaintiffs, the exercise of jurisdiction by the trial Court on the counter-claim of the 6th respondent/defendant was valid.
I therefore hold that the counter-claim of the 6th respondent is unaffected by the lapses of the appellants in improperly invoking the jurisdiction of the Court.
I accordingly resolve this issue against the appellants and in favour of the 6th respondent.
The next issue to be resolved is:
Whether the learned trial Court was on right footing not to have considered the issue of non-registration of the legal mortgage as a charge on the company’s asset at the company registry, when same was not raised by the parties in the Court below and no evidence was adduced thereat and on record in that
23
regard.
Arguing this issue, Mr. Fashanu submitted that the mortgage created on the property of the 1st appellant used as collateral for the loan granted by the 1st respondent to the 1st appellant was a charge on the assets of the 1st appellant and ought to have been registered with the Registrar of Companies pursuant to Section 94 of the Companies Act, 1968 otherwise it would be void against the liquidator or any creditor of the 1st appellant. He referred to CAPITAL FINANCE COMPANY C. LTD v. STOKES (1969) 1 CH. 261 and ONASHILE v. IDOWU (1969) ALL NLR (pt. 2) 313.
He submitted that evidence was not presented at trial that the said charge was registered and urged the Court to resolve the said issue in favor of the appellants.
In response, Mr. Agi, SAN submitted that this issue was not in the pleadings of parties and was consequently not canvassed before the trial Court in order to attract the pronouncement of the said Court and that onus rests on the appellants alleging non-registration to establish same. He referred to IGWEOCU v. EZEUGU (1992) 6 NWLR (pt. 249) 561 and NWOKE V. OKERE (1994) 5 NWLR (PT. 343) 159.
?The learned Silk further
24
submitted that Section 94 of the 1968 Companies Act read along Section 95 thereof places the duty of registration on the 1st appellant thereby precluding the appellants from taking advantage of their a wrong doing. He referred to TERIBA v. ADEYEMO (2010) 11 NWLR (PT 1211) 242 at 263.
He urged the Court to consider that the 6th respondent was a bona fide purchaser for value without notice of any default and resolve this issue in favor of the 6th respondent.
In the Reply brief, Mr. Fashanu, SAN submitted that burden of proof was on the party who will lose if no evidence was adduced on the issue once issues are joined and that equity will not prevent the law from taking its course in the absence of evidence that the said charge was registered as required by law. He referred to Section 131 of the Evidence Act, 2011, REYNOLDS CONSTRUCTION V. OKWEJIMINOR (2001) 15 NWLR (PT 735) 87 at 98 and IGBEKE v. EMORDI (2010) 27 WRN 76 at 119.
?It is not in contention that the issue here was not canvassed before the trial Court in any form or manner. The pleadings of the parties did not make any reference to it and it did not form part of the legal arguments of
25
counsel.
It is also common grounds between the counsel that this issue necessitates the presentation of evidence before it could be appropriately resolved. It is therefore not an issue of law to be resolved without evidence being adduced by the parties.
That being so, it is inappropriate for this Court to resolve this issue in its appellate capacity in the absence of necessary evidence. See A.I.C. LTD v. NNPC (2005) 22 NSCQR 903 at 920 and OBIEZE v. A.G. RIVERS STATE (2001) 8 NSCQLR 532 at 564-565.
I therefore agree with Mr. Agi, SAN that this issue cannot be validly entertained and resolved at this appellate stage.
I now proceed to the third and fourth issues which are;
Whether the learned trial Judge was not wrong in giving judgment for the 6th defendant despite her finding that the alleged deed of assignment for the 6th defendant was done on 25th May, 1995 after the suit had commenced on 24th February, 1995, and despite the 6th defendant not being a party in the case. And
Whether the learned trial Judge was not wrong when she omitted to consider in her judgment relevant and material issues and evidence such as the purpose
26
and effect of Exhibit 14 which was tendered admitted during the trial; the issue of the invalidity of the auctioneer’s public notice: exact amount of appellants’ indebtedness.
These issues were predicated on the claim of the appellants earlier stated by the appellants themselves and found in this judgment to be based on defective invocation of the jurisdiction of the Court.
These issues are therefore fatally affected as they have been deprived of necessary essence and foundation.
In totality therefore, this appeal lacks merit and it is accordingly dismissed.
The judgment of the learned trial Judge delivered on the 5th of April, 2012 granting the counter-claim of the 6th respondent is hereby affirmed.
Cost of N50, 000.00 is hereby awarded against the appellants in favour of the 6th respondent.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity of reading in advance a copy of the Judgment delivered by my learned Brother, J.O.K Oyewole, J.C.A. in draft form, dismissing this appeal.
The issues raised in this appeal have been comprehensively addressed. I am in agreement with his reasoning and
27
conclusion, which I adopt as mine. I also dismiss the appeal and affirm the judgment of the learned trial Judge granting the counter-claim of the 6th Respondent.
I abide by the order as to costs.
PAUL OBI ELECHI, J.C.A.: I have read in draft the judgment just delivered by my learned brother Joseph Olubunmi Kayode Oyewole, J.C.A.
I entirely agree with the reasoning and conclusion arrived at in dismissing the appeal which I adopt as mine also.
I also abide with the consequential Orders as to cost. Appeal Dismissed.
28
Appearances
MR. A. FASHANU, SAN WITH HIM,
MR. A. O. OLABODE, ESQ.
MR. P. OGAR, ESQ.For Appellant
AND
MRS. A. OBI, ESQ. WITH MR. W. OKE ESQ. FOR 2ND – 4TH RESPONDENTS
MR. J. AGI, SAN WITH HIM,
MR. M. SHANIBU ESQ.
MR. N. ONWUGARAN ESQ. FOR 6TH RESPONDENTFor Respondent
