CHIEF IBOK ESHIET v. ELDER PETER OKON EFFIONG & ORS
(2018)LCN/12495(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of July, 2018
CA/C/160/2013
RATIO
COURT AND PROCEDURE: THAT RULES OF COURT SHOULD BE OBEYED
“In the same vein, Tobi, JSC in OFORKIRE VS. MADUIKE ORS. (2003) LPELR 2269 (SC) held that:
‘It is elementary law that rules of Court must be obeyed or complied with, as they are not made for fun. In SOLANKE VS. SOMEFUN (1974) 1 SC 141, Sowemimo, JSC (as he then was) opined: ‘Rules of Court are meant to be complied with, Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker administration of justice’. See also IBODO VS. ENAROFIA (1980) 5 – 7 SC 42; ANIA VS. OBABIOLORUN-KOSI (1986) 2 NWLR (PT. 22) 316; OLUSESI VS. OYELUSI (1986) 3 NWLR (PT. 31) 634; JOHN VS. BLAKK (1988) 1 NWLR (PT. 72) 648; GOVERNMENT OF IMO STATE VS. GREECO CONSTRUCTION & ENGINEERING ASSOCIATES LTD. (1985) 3 NWLR (PT. 11) 71; DAMBAM VS. LELE (2000) 11 NWLR (PT. 678) 413′.” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
CHIEF IBOK ESHIET Appellant(s)
AND
1. ELDER PETER OKON EFFIONG
2. NSIT ATAI TRADITIONAL RULERS COUNCIL
3. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
4. ATTORNEY GENERAL, AKWA IBOM STATE
5. GOVERNOR OF AKWA IBOM STATE Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Akwa Ibom State in Suit No. HU/317/2012 delivered on 21st day of January, 2013 by P. P. Idiong, J. The Appellant was the Claimant at the Court below while the Respondents were the Defendants.
The Appellant took out a writ of summons of the Court below against the Respondents on 24th day of May, 2012. The reliefs claimed by the Appellant as shown in the endorsement on the writ and the statement of claim are as follows:
i. A DECLARATION that the Plaintiff is the authentic Village Head elect of Ikot Obong Village in Nsit Atai Local Government Area of Akwa Ibom State having been formally elected on Monday, 9th day of January, 2012 in conformity with their custom and traditions with the active participation and in the presence of all indigenes of Ikot Obong Village in Nsit Atai Local Government Area.
ii. A DECLARATION that the Plaintiff is the person entitled to be issued with the Certificate of Recognition as the authentic Village Head of Ikot Obong Village in Nsit Atai Local Government Area.
iii. AN ORDER directing the 5th Defendant to issue to the Plaintiff a Certificate of Recognition as the Village Head of Ikot Obong Village in Nsit Atai Local Government Area of Akwa Ibom State having been formally elected on Monday, 9th day of January, 2012 in conformity with their customs and traditions with the active participation and in the presence of all indigenes of Ikot Obong Village Area.
iv. AN ORDER restraining the 2nd to 4th Defendants from recognizing, dealing with and or presenting the 1st Defendant and or any other person except the Plaintiff to the 5th Defendant as the Village Head elect of Ikot Obong Village for the issuance of Certificate of Recognition.
v. AN ORDER of perpetual injunction restraining the 1st Defendant and or any other person from parading himself as the Village Head of Ikot Obong Village in Nsit Atai Local Government Area.
In addition to the writ of summons and other processes, the Appellant filed a motion on notice for interlocutory injunction. These processes were served on the Respondents. The 3rd to 5th Respondents? Counsel entered an appearance on their behalf and filed a counter affidavit to oppose the motion for interlocutory injunction.
The 1st Respondent in response filed a motion on notice to challenge the competence of the suit and the jurisdiction of the Court to entertain it.
The Court below heard that motion and upheld the grounds of the objection raised by the 1st Respondent and struck out the case of the Appellant. The Appellant, dissatisfied with this Ruling of the Court below filed a notice of appeal on 25th day of January, 2013 on three grounds. The record of appeal was transmitted on 10th day of June, 2013. The Appellant filed his brief on 25th day of July, 2013. The 1st Respondent filed his own brief of argument on 30th day of May, 2014. Then the 3rd to 5th Respondents filed their own brief on 8th day of June, 2015. The 2nd Respondent did not file any brief in this appeal.
The Appellant proposed three (3) issues for determination. These issues are couched as follows:
1. Whether the 1st Defendant/Respondent’s motion on notice dated 26th day of June, 2012 was competent process before the Court below.
2. Whether the lower Court was right to have struck out the Plaintiff/Appellant’s suit on the ground of the purported failure to meet condition precedent before filing the suit.
3. Whether the mere writing that the ?Writ is to be served within twelve (12) Calendar months… or if renewed, within six (6) Calendar months’ instead of the 6 months and 3 months for service and renewal respectively as written in the Rules constitutes enough ground to strike out the Plaintiff/Appellant’s Writ of Summons.
The 1st Respondent distilled also three (3) issues namely:
ISSUE NO. 1
Whether the Court below was right in holding that the suit was not commenced by due process of law.
ISSUE NO. 2:
Whether the suit was commenced upon fulfillment of conditions precedent to its commencement.
ISSUE NO. 3:
Whether there is a specific format for raising issue of jurisdiction in the High Court of Akwa Ibom State.
The 3rd to 5th Respondents in their brief adopted the three (3) issues raised by the Appellant and argued them.
From the grounds of appeal, the three (3) issues distilled by the Appellant cover appropriately the complaint of the Appellant in this appeal.
The said three (3) issues do equally accommodate the issues raised by the 1st Respondent. The three (3) issues as framed by the Appellant are therefore set down for consideration. I now start with the first issue.
ISSUE ONE
This issue is whether the 1st Respondent’s motion on notice dated 26th day of June, 2012 was a competent process before the Court.
The learned Counsel for the Appellant submitted that the motion of the 1st Respondent dated 26th day of June, 2012 was an incompetent process. He contended that the motion did not align with the Rules of the Court under which it was brought and that the motion was filed to oppose the motion for interlocutory injunction filed by the Appellant. That the Court below was in error for hearing the said motion when the 1st Respondent did not enter appearance as required. He relied on the decision of this Court in the case of MANSON VS. HALLIBURTON ENERGY SERVICES NIG. LTD. (2007) ALL FWLR (PT. 358) 1067, 1079 and the cases of AKINDELE VS. ABIODUN (2009) 11 NWLR (PT. 1152) 356, and INAKOJU VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423.
He urged the Court to hold that the condition precedent for the hearing of the motion was not met and that the appeal should be allowed.
The 1st Respondent in his own submission canvassed that the writ of summons did not comply with Order 6 Rule 6(1) of the High Court (Civil Procedure) Rules of the Akwa Ibom State High Court 2009.
The complaint is that the life span of the writ of summons issued by the Appellant was said to be for twelve (12) Calendar months instead of the 6 months prescribed by Order 6 Rule 6(1) of the Rules of Court.
The 3rd to 5th Respondents in their brief canvassed that the motion of the 1st Respondent was proper before the Court. The learned Counsel for the Respondents said that the Appellant had filed an application for interlocutory injunction to restrain the 1st Defendant, now 1st Respondent, from parading himself as the Village Head of Ikot Obong Village in Nsit Atai Local Government Area pending the determination of the substantive suit. That the 1st Respondent instead of reacting to the said application filed the motion on notice of 26th day of June, 2012 to challenge the jurisdiction of the Court to hear the suit.
He submitted also that jurisdiction is so fundamental that once the jurisdiction of a Court to hear a matter is challenged, it must be dealt with, and resolved before any other step in the proceedings. This he said is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings. He cited the case of AJAYI VS. ADEBIYI (2012) 11 NWLR (PT. 1310) PAGE 151, where the Supreme Court held as follows:
‘Objection to jurisdiction can be taken at any time depending on what materials are available. It would be taken in the following situations:
a. On the basis of the statement of claim;
b. On the basis of evidence received; or
c. By a motion supported by affidavit giving full facts upon which reliance is placed; or
d. On the face of the writ of summons, where appropriate, as to the capacity in which an action is brought or against whom action is brought’.
The learned Counsel further canvassed that the method of raising issue of jurisdiction is irrelevant. That once it is raised, the Court must decide the issue timeously. He relied on the cases of MUSA VS. MADWETTE (2008) ALL FWLR (PT. 421) @ 947 and ONYEJIKE VS. IBENEME ANYASOR (1992) 1 NWLR (PT.218) 437 B – D.
He urged the Court to hold that the motion filed in the lower Court on 26th day of June, 2012 was competent. That the lower Court was right in striking out the suit. That the writ was defective because it violated Order 3 Rule 3 and Order 6 Rule 6(1) and (2) of the Akwa Ibom State High Court Rules 2009.
I must quickly point out the fact that of all the parties, the 2nd Respondent did not file any brief of argument. The implication of this is that if he was in Court during the hearing of the appeal, he would not be entertained because he did not file brief. But that notwithstanding, it must be borne in mind that an Appellant does not need the support of the Respondent to win his own appeal. He must succeed or fail, on the strength of his own brief and his own case. In the case of SKYE BANK PLC & ANOR. VS. AKINPELU (2010) 9 NWLR (PT. 1198) 179, Ogbuagu, JSC held:
But I must add quickly, that this is firmly established, that failure to file a Respondent’s Brief is immaterial as an Appellant must succeed or fail on the strength of his own Brief or case. See the cases of MANAGEMENT ENT. LTD. & ANOR. VS. OTUSANYA (1987) 4 SCNJ, 110; JOHN HOLT VENTURES LTD. VS. OPUTA (1996) 9 NWLR 9 (PT. 470) 101, 112 and ONYEJEKWE VS. THE NIGERIA POLICE COUNCIL & ANOR. (1996) 7 NWLR (PT. 463) 704, 710 just to mention but a few.
In the instant appeal, what is paramount therefore is to look into the brief of the Appellant and that of the 3rd to 5th Respondents filed in this case and consider the Appellant’s appeal.
The ruling of the Court below which is the subject of this appeal was sequel to the motion on notice filed on the 26th day of June, 2012. This motion on notice is at pages 66 to 67 of the record. The motion sought for an order striking out the suit on six grounds. These grounds are couched as follows:
1. That this matter is a chieftaincy matter and is regulated by the Traditional Rulers Law, Cap. 134, Vol. 6 Laws of Akwa Ibom State which provides in Sections 9, 10, 11 and 12 thereof as to the steps that shall be taken upon information by the Village/Clan in writing to the Council that the selection of the Village Head/Clan Head is disputed but those conditions have not been fulfilled before the Plaintiff brought this suit.
2. That until the remedies in the domestic forum are exhausted the Plaintiff cannot bring this case in this Honourable Court.
3. That the Plaintiff did not make any attempt to exhaust the remedies open to him before filing this suit in the High Court. The Traditional Rulers Council is in the instant case the prescribed authority to first determine the dispute where such has been declared in writing by the village to the Council within the stipulated period.
4. That no member of the 1st Defendant’s Village has informed the 2nd Defendant in writing of any dispute in the selection of the 1st Defendant as a Village Head.
5. That the writ of summons used for the commencement of this suit is incompetent and defective.
6. That this Honourable Court has no jurisdiction to entertain this action since the Plaintiff has not exhausted the internal remedies provided by the statute of the Traditional Rulers Council to first determine the dispute.
The learned trial Judge in his ruling considered the motion filed by the 1st Respondent. The learned trial Judge in the opening paragraph of his ruling said as follows:
The Plaintiff commenced this action on 24th day of May, 2012 and claim declaratory directory and injunctive reliefs against the Defendants. As required under the Rules of procedure, the writ of summons initiating this suit is accompanied by the Plaintiff?s statement of claim, list of his witnesses, his witnesses’ statements on oath as well as the list and copies of documents the Plaintiff intends to rely on in this case. On the same date also the Plaintiff filed a motion on notice for an interlocutory injunction. The said processes were duly served on the Defendants whereby Iboroakam Akpan (Mrs.) of Counsel for the 3rd, 4th and 5th Defendants on 7th day of June, 2012 entered an appearance for her said clients. Obong Obot E. Obot of Counsel for the 1st Defendant did not enter appearance. Rather on 26th day of June, 2012, learned Counsel approached the registry of this Court and filed a motion on notice to challenge the competence of this suit and the jurisdiction of the Court to entertain it. (Underlining mine for emphasis).
The ruling bears confirmation of the facts that:
1. The originating processes were served on the Respondents.
2. The 1st Respondent did not enter any appearance.
3. The 1st Respondent without entering any appearance filed the motion heard by the Court below from where this appeal emanates.
The primary issue raised by the Appellant is that the 1st Respondent who failed to file a memorandum of appearance had no right of audience before the lower Court and that the motion filed by him in that circumstance is incompetent and ought to have been struck out by the Court. The initiation of proceeding at the Court below is governed by the High Court of Akwa Ibom (Civil Procedure) Rules 2009. Order 6 thereof deals with the issuance of originating process. Order 9(1) prescribes for the filing of a memorandum of appearance as follows:
(1) A Defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the Registry the original and copy of a duly completed and signed memorandum of appearance as in Form 11 with such modifications or variations as circumstances may require.
The word ‘shall’ used here is a word of command. A peremptory command that must be carried out. It follows that the requirement of the law is for a Respondent served with originating processes to file a memorandum of appearance.
In the case of INAKOJU & ORS VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423, Ogbuagu, JSC, held that:
‘Entry of an appearance is said to be a formal step taken by a Defendant to an action after he has been served. See ADEGOKE MOTORS LTD. VS. D.J. ADESANYA & ANOR. (1989) 3 NWLR (PT. 109) 250 @ 292, 296 (1989) 5 SCNJ 80 @ 90 where it was held that entering of an appearance, is a technical expression and a formal step taken by a Defendant in civil proceedings. Therefore, a Defendant, shall before he is heard enter appearance and if he fails to do so, he is not entitled to be heard by the Court’.
On the authority of Order 9 Rule 1 and the decision of Ogbuagu, JSC in INAKOJU VS. ADELEKE (supra) filing of a memorandum of appearance or memorandum of conditional appearance is a sine qua non to the hearing of the Respondent’s motion in the instant case. The Court is the home of due process and justice is not justice if it is not justice according to law. Rules of Court being the syntax of adjudication must in that regard be respected and obeyed. Fabiyi, JSC in MC INVESTMENT & ANOR. VS. CORE INVESTMENTS AND CAPITAL MARKETS LTD. (2012) 12 NWLR (PT. 1313), held that Rules of Court are meant to be obeyed. Any party who fails to obey Court rules does so at his own peril. Such a party as the Appellants herein cannot be heard to complain. See AFOLABI VS. ADEKUNLE (1983) NSCC 398 @ 405; UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (PT. 1) 143.
In the same vein, Tobi, JSC in OFORKIRE VS. MADUIKE ORS. (2003) LPELR 2269 (SC) held that:
‘It is elementary law that rules of Court must be obeyed or complied with, as they are not made for fun. In SOLANKE VS. SOMEFUN (1974) 1 SC 141, Sowemimo, JSC (as he then was) opined: ‘Rules of Court are meant to be complied with, Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker administration of justice’. See also IBODO VS. ENAROFIA (1980) 5 – 7 SC 42; ANIA VS. OBABIOLORUN-KOSI (1986) 2 NWLR (PT. 22) 316; OLUSESI VS. OYELUSI (1986) 3 NWLR (PT. 31) 634; JOHN VS. BLAKK (1988) 1 NWLR (PT. 72) 648; GOVERNMENT OF IMO STATE VS. GREECO CONSTRUCTION & ENGINEERING ASSOCIATES LTD. (1985) 3 NWLR (PT. 11) 71; DAMBAM VS. LELE (2000) 11 NWLR (PT. 678) 413′.
From these decisions it is very much settled that Rules of Court must be followed to achieve justice. The 1st Respondent was served with the originating processes, if he is contending jurisdiction, the practice is for him to enter under protest which is what is known as conditional appearance before presenting his motion to challenge the action of the Appellant. It is therefore obvious that the Court below was in error for entertaining the motion of the 1st Respondent without the 1st Respondent entering an appearance in this case.
Since the 1st Respondent was not properly before the Court, the motion filed by him on 26th day of June, 2012 was not competent. This being the case Issue One is hereby resolved in favour of the Appellant. Since the motion was incompetent the ruling of the lower Court was given without jurisdiction and will be set aside.
With the resolution of the first issue in favour of the appellant, issues two and three touching on the merit of the decision of the Court below have now become academic. They are hereby discountenanced. This appeal therefore succeeds. The motion filed on 26 day of June, 2012 is ordered struck out and the ruling of the Court below is set aside. This case is remitted back to the lower Court to be heard de novo before another Judge of the Court.
The Respondents are to pay a cost of N 100,000.00 to the Appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree that the instant appeal succeeds and it?s hereby allowed by me. I abide by the consequential order setting aside the ruling of the Akwa Ibom State High Court delivered on January 21, 2013 in suit No. HU/317/2012 by P. P. Idiong, J; and remitting the case to the Court below for trial de novo before a different judge.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
A party who is not competently before the Court is incapable of filing applications. The incompetence of the application fatally affected the ruling of the trial Court appealed against.
I equally allow that this appeal and I adopt the consequential orders in the lead judgment as mine.
Appearances:
For Appellant(s)
Mfonobong Udo-Inyang, Esq. for the 3rd-5th RespondentsFor Respondent(s)
