APREKUMA v. KALU & ANOR (2022)

APREKUMA v. KALU & ANOR

(2022)LCN/16246(CA)

In the Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Friday, April 01, 2022

CA/PH/61/2019

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Between

MR. INGO APREKUMA APPELANT(S)

And

1. MARK O. KALU (Proprietor of Tender Dreams Academy) 2. LAWRENCE FUBARA ANGA (For Himself and On Behalf of The Administrators of The Estate of Late Lawrence Kenneth Anga) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON RULES OF COURT

Rules of Court are meant to be obeyed as they have the force of law where as in the instant case, the Rules provided for filing a Notice of Appeal at the Court below and the appellant chose as desired to file in the Court of Appeal Registry, the Court will not allow that. This is because strict compliance with the rules of Court make administration of justice quicker. See Re: Abiola (2019) 12 NWLR (Pt.1685) 27 and FBN Vs Abraham (2008) 18 NWLR (Pt. 1118) 172.
Rules of Court are meant to be obeyed and that is why they are made. That does not justify that one or the Court becomes slavish to its obedience to the extent that justice is destroyed, jettisoned or thrown overboard. See INEC Vs Yusuf (2020) 4 NWLR (Pt.1714) 374. The Rules are not mere rules but partake the nature of subsidiary legislation by virtue of Section 18(1) of the Interpretation Act and therefore has the force of law. See Mustapha Vs Bulkachuwa (2020) 12 NWLR (Pt. 1739) 391 at 408 and Owner of the MV Arabella Vs Nig. Agricultural Insurance Corp. (2008) 11 NWLR (Pt. 1097) 182.
For there to be certainty in law, the Court must be able to place reliance on and apply the law as it is. There is therefore every reason for counsel to place total reliance on any provision of the laws or rules of Court as having the force of law since it is the Court below that compiles and transmits record to the Court of Appeal. Common sense dictates that the Notice of Appeal should be filed at the Court below, because it is in the record that the Notice of Appeal is incorporated.
In Okpe Vs Fan Milk PLC (2017) 2 NWLR (Pt. 1549) 282 at 285 the Supreme Court per I.T. Muhammad JSC (now CJN) held.
“An appeal is deemed to have been brought upon filing of the Notice of Appeal in Registry of the Court below or the Court from which the appeal emanated.”
See IBWA Vs Pavex International Co. (Nig.) Ltd (2000). PER HASSAN, J.C.A.

THE POSITION OF LAW ON WHERE ORIGINATING SUMMONS PROCEDURE IS TO BE INVOKED

The originating summons procedure is meant to be invoked where the parties are substantially ad idem on the facts and without the need for pleadings but merely for a directive of the Court on the point of law involved. Where there is likely to be substantial dispute of facts relevant to the issue in controversy, the originating summons procedure is not appropriate. See Mainstreet Bank Capital Ltd Vs Rig. RE (2018) 14 NWLR (Pt. 1640) 423 and Alfa Vs Attai (2018) 5 NWLR (Pt. 1611) 59.
The nature of originating summons is to make suits simpler for hearing. In that procedure, evidence is in the mean by way of documents and where there is no serious dispute as regards the transaction of the parties to the suit, and there must not be serious dispute as to facts. If there is serious dispute on facts, the appropriate procedure to adopt in commencing the suit is writ of summons procedure and not originating summons procedure. See Doherty Vs Doherty (1967) SCNLR 408 and Famfa Oil Ltd Vs A – G Federation (2003) 18 NWLR (Pt. 852) 453. PER HASSAN, J.C.A.

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Rivers State High Court, Port Harcourt delivered on the 12th day of October, 2018 in suit No. PHC/3759 by Honourable Justice C.D Green.

The appellant as claimant at the lower Court instituted an action by way of originating summons under Order 53 Rule 2 of the Rivers State High Court Civil Procedure Rules, 2010 on the 11th of December, 2017, against the respondents as defendants therein for:
An order to recover possession of the property known as plot 249 Oromenike layout, Port Harcourt Municipally known as No. 8 Okoroji Street, D/Line, Port Harcourt, Rivers State on the ground that the persons in occupation are in occupation without his license or consent.

The originating summons is supported by seventeen paragraphs affidavit with three annextures marked as exhibits “A”, “B” and “C” and a written address attached.

The defendants/respondents filed a memorandum of appearance on the 5th of March, 2018 and a Motion dated 8th March, 2018 for dismissing the suit on grounds of serious questions pertaining to the title of the property in dispute and that originating summons is not the proper procedure for instituting this action for recovery of possession. The claimant/appellant filed a counter affidavit on the 16th of April, 2018 in opposition.

The 2nd defendant/respondent filed a counter affidavit to the originating summons on 5th of March, 2018. The claimant/Appellant filed a further affidavit in reply to the 2nd defendant’s/respondent’s counter affidavit on the 16th of April, 2018.
The trial Court in a considered judgment delivered on the 12th of October, 2018 struck out the suit.

The Appellant who is aggrieved with the judgment filed a Notice of Appeal on the 9th of January, 2019. The Notice of Appeal contained four grounds of appeal with their particulars and reliefs sought.

The appellant’s brief was dated and filed on the 22nd of March, 2019. The brief settled by B.C. Ugwu Esq. has a sole issue distilled for determination of the appeal. The issue reads:
“Whether the trial Court was right when it held that the processes filed in the suit disclosed dispute in title and therefore the suit was not properly commenced under Order 53 of the Rivers State High Court Rules of 2010.”

The appellant’s reply brief was filed on the 6th of July, 2021. Learned counsel for the appellant adopted both briefs and urged the Court to allow the appeal.
The respondent’s brief dated the 3rd of July, 2020 was filed on 6th July, 2020 but deemed properly filed on the 22nd of June, 2021.

The respondent’s counsel Rafiq Anammah also identified a sole issue which reads:
“Whether the trial Court was right in striking out the appellant’s suit on the ground that the suit was improperly commenced under Order 53 of the Rules because there are disputes between the parties in respect of the property as disclosed in the processes filed by the parties.”

Counsel adopted the brief and urged the Court to dismiss the appeal.

It is important to point out at this stage that the Notice of Appeal was filed at the Court of Appeal Registry instead of the High Court Registry, Port Harcourt as provided by Order 7 Rule 2 (1) which reads:
“2. –(1) All appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on such parties.”
Order 6 Rule 12 of the Court of Appeal Rules reads:
“An Appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.”
Order 6 Rule 12 of this Court emphasing this point are not made for fun but for the intended purpose, which is that by the use of the word “shall” connotes an obligatory discharge of duty and when so used as in the particular rule of Court, the requirement must be complied with and any contravention or non compliance is fatal to the offending notice of appeal- Adeniran vs Olusokun II (2019) 8 NWLR (Pt. 1673) 98 at 102. See also Shettima Vs Goni (2011) 18 NWLR (Pt.1279) 413; and Nwora Vs Nwabueze (2019) 7 NWLR (Pt. 1670) 1.
Rules of Court are meant to be obeyed as they have the force of law where as in the instant case, the Rules provided for filing a Notice of Appeal at the Court below and the appellant chose as desired to file in the Court of Appeal Registry, the Court will not allow that. This is because strict compliance with the rules of Court make administration of justice quicker. See Re: Abiola (2019) 12 NWLR (Pt.1685) 27 and FBN Vs Abraham (2008) 18 NWLR (Pt. 1118) 172.
Rules of Court are meant to be obeyed and that is why they are made. That does not justify that one or the Court becomes slavish to its obedience to the extent that justice is destroyed, jettisoned or thrown overboard. See INEC Vs Yusuf (2020) 4 NWLR (Pt.1714) 374. The Rules are not mere rules but partake the nature of subsidiary legislation by virtue of Section 18(1) of the Interpretation Act and therefore has the force of law. See Mustapha Vs Bulkachuwa (2020) 12 NWLR (Pt. 1739) 391 at 408 and Owner of the MV Arabella Vs Nig. Agricultural Insurance Corp. (2008) 11 NWLR (Pt. 1097) 182.
For there to be certainty in law, the Court must be able to place reliance on and apply the law as it is. There is therefore every reason for counsel to place total reliance on any provision of the laws or rules of Court as having the force of law since it is the Court below that compiles and transmits record to the Court of Appeal. Common sense dictates that the Notice of Appeal should be filed at the Court below, because it is in the record that the Notice of Appeal is incorporated.
In Okpe Vs Fan Milk PLC (2017) 2 NWLR (Pt. 1549) 282 at 285 the Supreme Court per I.T. Muhammad JSC (now CJN) held.
“An appeal is deemed to have been brought upon filing of the Notice of Appeal in Registry of the Court below or the Court from which the appeal emanated.”
See IBWA Vs Pavex International Co. (Nig.) Ltd (2000)7 NWLR, (Pt. 663) 105 and N.B.C. PLC Vs Suleiman (2019) 18 NWLR (Pt. 1703) 80 were referred.
Also the Supreme Court in SPDCN Ltd Vs Agbara (2016) 2 NWLR (1496) 353 held that the Notice of Appeal is filed in the Registry of the Court below and not in that of the appellate Court. See also Okotie Vs Olughur (1995) 5 SCNJ 217 and Harriman Vs Harriman (1987) 3 NWLR (Pt. 60) 224 referred to. Not only the Courts but legal practitioners also owe a duty to obey the rules.
In line with the above decisions, the appeal is struck out for being incompetent.

However, even if this appeal is to be determined on its merit, it will not see the light of the day. This is because the procedure adopted by the appellant in instituting the action by way of originating summons is not suitable for determination.

The originating summons procedure is meant to be invoked where the parties are substantially ad idem on the facts and without the need for pleadings but merely for a directive of the Court on the point of law involved. Where there is likely to be substantial dispute of facts relevant to the issue in controversy, the originating summons procedure is not appropriate. See Mainstreet Bank Capital Ltd Vs Rig. RE (2018) 14 NWLR (Pt. 1640) 423 and Alfa Vs Attai (2018) 5 NWLR (Pt. 1611) 59.
The nature of originating summons is to make suits simpler for hearing. In that procedure, evidence is in the mean by way of documents and where there is no serious dispute as regards the transaction of the parties to the suit, and there must not be serious dispute as to facts. If there is serious dispute on facts, the appropriate procedure to adopt in commencing the suit is writ of summons procedure and not originating summons procedure. See Doherty Vs Doherty (1967) SCNLR 408 and Famfa Oil Ltd Vs A – G Federation (2003) 18 NWLR (Pt. 852) 453.
In the instant case, the proceedings before the trial Court was contentious and not suitable for determination upon originating summons. See Ezeigwe Vs Nwawulu (2010) 4 NWLR (Pt. 1183) 159; N.B.N. Ltd Vs Alakija (1978) 9 – 10 SC 449 -450 paragraphs H – B and Mainstreet Bank Capital Ltd Vs Nig. Re (Supra).

Therefore Order 53 Rule 2 of the Rivers State High Court Civil Procedure Rules 2010 pursuant to which the appellant instituted the action by way of originating summons, which allows for summary proceedings for possession of landed property occupied by squatters without consent is inapplicable to this case. Although the Constitution of Nigeria 1999 (as amended) provided for right of appeal, but due process must be followed in exercising that right.

As earlier stated in the judgment, the appeal is struck out for failure to comply with the mandatory rules of Orders 7 and 6 of the Court of Appeal Rules.
Accordingly the appeal is struck out.

PAUL OBI ELECHI, J.C.A.: I have had the privilege to read in draft the judgment just delivered by my learned brother Tani Yusuf Hassan, JCA.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal failed because it failed to comply with the mandatory rules of Court in Order 7 and 6 of the Court of Appeal Rules. As a result, I too strike-out the appeal on same reason.
Appeal struck-out.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading before now, a draft copy of the lead judgment delivered by my noble lord, TANI YUSUF HASSAN, JCA, in this appeal. My lord has sufficiently dealt with the issue of incompetence of the appeal.
I also strike out the appeal for being incompetent.