BARRISTER M. A. LAWAN & ORS v. THE INCORPORATED TRUSTEES OF YANBAHEED ASSOCIATION
(2014)LCN/7268(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of June, 2014
CA/K/296/2013
RATIO
WHETHER AN APPEAL CAN BE BROUGHT AGAINST AN INTERLOCUTORY RULING OF A TRIAL COURT.
We have always cautioned Appellants against rushing to Appeal Court over every or any interlocutory ruling of a trial court, where such would frustrate the hearing of the substantive case, and amount to waste of time and resources pursuing a farce, whereas a little patience and legal prudence/tact on the part of the Appellant and his Counsel, would suggest pursuing the main cause to conclusion, and then taking up appeal on the ruling, together with the final appeal, if that still becomes necessary, at the end of the trial, and where waiting to the end of trial will not defeat the interlocutory appeal. See the case of NWANA V. UBN PLC (2013) LPELR – 21823 (CA) PAGE 13 – 14; UNITED FOAM PRODUCTS NIGERIA LTD VS. OPOBIYI (2012) 6 NWLR (PT.1297) 429. 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
1. BARRISTER M. A. LAWAN
2. ALHAJI BASHIR KOTE (FOR & ON BEHALF OF FAMILY OF LATE ALHAJI AUDU KOTE)
3. ENGR. HAMISU IDRIS
4. SALE MUHAMMADU MAKANEZAAppellant(s)
AND
THE INCORPORATED TRUSTEES OF YANBAHEED ASSOCIATIONRespondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Kano State High Court in Suit No. K/280/2010, delivered on 5/6/13 by Lawan Wada Maumoud J. by an amended writ of summons, the Respondents (as Plaintiff at the trial court) claimed against the Defendants (now Appellants) as follows:
(1) A declaration that the parcel of land lying and situate at Fagge Local Government, Kano State covered by Certificate of Occupancy
NO.LKN/CON/COM/2003/005, solely belongs to the Plaintiff.
(2) A declaration that the act of the 1st Respondent handing over the title documents of the parcel of land lying, being and situate at Fegge Local Government, Kano covered by Certificate of Occupancy NO:LKN/CON/COM/2003/005 to any person(s) or body or bodies, association other than the bonafide leadership of the plaintiff is illegal, and null and void and of no effect whatsoever.
(3) An order of this Honourable Court directing the Defendants to hand over parcel of land and all the title documents in respect of the parcel of land lying, being and situate at Fagge Local Government Kano, covered by Certificate of Occupancy NO.LKN/CON/COM/2003/005 to the bonafide leadership of the Plaintiff
(4) An order of this Honourable Court reaffirming and authenticating the Leadership, of Shehu Ya’u and the remaining members of the executive as bonafide Leadership of the Plaintiff
(5) A declaration that, the Plaintiff is an association solely of driver (sic) and no any other profession, person(s) or body or bodies.
(6) An order of his (sic) Honorable Court restraining the 5th Defendant from parading himself, dealing, answering or doing anything in whatever manner that will signify him as the Chairman of the executive or Chairman of Elders of the Plaintiff
(7) An order of perpetual injunction restraining the Defendant (sic) either by themselves or through their agents, servants, privies and assigns whomsoever and whatsoever known, called and/or described from building on the parcel of land, alienating, leasing, mortgaging, or dealing with the parcel (sic) land lying, being and situate of (sic) Fagge Local Government, Kano covered by Certificate of Occupancy NO.LKN/CON/COM/2003/005 in whatsoever manner prejudicial to the interest of the Plaintiff.
(8) The Cost of filling (sic) and prosecution of this action as well as legal cost.”
Upon being served with the Amended Writ and the Statement of claim and all the accompaniments, Appellants filed Memorandum of Conditional appearance and a notice of preliminary objection, challenging the jurisdiction of the trial court to entertain the suit, on the ground that the purported Plaintiff was not a juristic person. The motion (preliminary objection) was heard and the trial court dismissed it, holding that the none filing of the statement of defence did not help matters as it put the court in a shadow of doubt, and that since the current trend in court was to ensure substantial Justice was done, as against technical Justice, it was safe to believe the counter affidavit that Plaintiff was a registered association under the Companies and Allied Matters Act Cap 20 LFN 2004 and as such had power to sue and be sued.
That was on 5/6/2013. (See page 38 of the Record). And that is the Ruling Appellants appealed against in this appeal, as per Notice of Appeal filed on 10/6/2013, disclosing five (5) grounds of appeal. See pages 121 to 124 of the Records.
Appellants filed their brief on 12/8/13 and distilled two (2) issues for determination, namely:
“(1) Whether from the facts and circumstances of this case the Plaintiff/Respondent is a Registered Association Under Companies and Allied Matters Act and as such can sue and be sued. (Grounds 1 and 2)
(2) Whether the Defendants/Appellants must file a statement of defence before they can challenge the competence of the Plaintiff/Respondent to institute the present action. (Grounds 3, 4 and 5).”
The Respondent filed a Notice of Preliminary objection against the issue 2 for determination, saying the same did not distill from grounds 3 and 4 of the appeal as claimed by Appellants and that particulars (iii) did not correlate and, or have bearing with Ground 5 as such contaminated the remaining particulars (i) and (ii) to the extent of injecting a killer virus to Ground 5, The Respondent, however, filed a brief on 10/1/14, which was deemed duly filed on 13/1/14, and distilled alone issue for determination, as follows:
“Whether the trial court was right to have held that the Plaintiff/Respondent was a proper party that can sue and be sued and that before its locus can be challenged the Defendants must first of all file statement of defence through which the trial court will be assisted in ascertaining the capacity and or locus of the Plaintiff/Respondent in filing suit NO K/280/2010 (Grounds 1, 2, 3, 4 AND 5).”
The Appellant filed a Reply Brief on 20/1/14 to contest the preliminary objection etc.
When the appeal came up for hearing on 26/3/14, the parties adopted, their briefs, starting with the Respondent’s preliminary objection, and they moved us, accordingly.
Respondent’s preliminary objection was targeted at Issue 2 by Appellants, that it was not distilled from grounds 2 and 3 or from any other ground of the appeal.
I have already reproduced the Issue 2 in this judgment and how the Appellants related the same to their grounds of appeal. I think the Respondent is in error to allege that Appellants distilled their Issue 2 from grounds 2 and 3 of the Appeal (See the Notice of preliminary objection, filed on 10/1/14). In their Brief, the Respondent changed position and alleged that the issue did not derive from grounds 3, 4 and 5 of the Appeal. Appellants, in fact, related their Issue 2 to grounds 3, 4 and 5 as shown on paragraph 3.01 (page 2) of the Appellants’ Brief. It therefore means all the arguments of the Respondent on the said preliminary objection are founded on erroneous belief, that the issue distilled from grounds 2 and 3, and should be discarded. But the Respondent also alleged that the Issue 2 did not flow “from any other grounds of the appeal contained in the Notice of Appeal dated 6th day of June, 2013 and filed on 10th day of July 2010”. Appellants’ grounds of appeal were as follows (without particulars) – pages 121 to 124 of the Records:
“(1) The Learned Trial Judge erred in law when he held that the Plaintiff/Respondent is an incorporated and/or registered person under the Companies and Allied Matters Act.
(2) The Learned Trial Judge erred in law in holding that the Plaintiff/Respondent is corporate body established under the law capable of suing and being sued, even when the Plaintiff/Respondent failed to produce her evidence of certificate of incorporation under the Companies and Allied Matters Act, which she alleged she registered with, thereby occasioning miscarriage of Justice against Appellants.
(3) The Learned Trial Judge erred in law in failing to be bound by the decisions of this Honourable court in House of Reps. Vs. S.D.C.N (2010) 11 NWLR (Pt 1205) 213 and M.F.C.T. us, S.P.R.O. (2010) ALL FWLR (Pt 505) 1706, where it is decided that a court can only be said to have jurisdiction to entertain a matter when the proper parties are present, among others, thereby occasioning miscarriage of Justice against the Appellants.
(4) The Learned Trial Judge erred in law when he failed to apply the decision of the Supreme Courts in Maersk Link vs. Addide Investment Ltd (2002) ALL FWLR (Pt.267) 1367; G.T. Investment Ltd vs. Witt & Bush Ltd (2011) 8 NWLR (Pt.1250) 500, cited to him, where it was held that it is not competent for court to assume jurisdiction to hear a matter, where the Plaintiff/Respondent, as in the present case, did not or does not exist in the eye of the law, thereby occasioning miscarriage of Justice against the Appellants.
(5) That Learned Trial Judge erred in law when he held that the capacity of the Plaintiff/Respondent to sue and be sued, which is challenged by the defendants/Appellants can only be determined after the Defendants/Respondents have filed their statement of defence.”
Even a casual glance at the ground five of the appeal can show a link between it and the 2nd Issue for determination, wherein the Appellants queried whether the Defendants must file statement of defence before they can challenge the competence of the suit!
The Respondent was therefore wrong to submit that the Issue 2 was not distillable from any of the grounds of the appeal. The issue, in my opinion, is therefore competent for the determination of the appeal, as it is accommodated by ground 5 of the appeal. The preliminary objection is, therefore, dismissed.
I shall therefore consider this appeal on that issue 2, as I think the issue 1 and the other grounds of appeal are not available for Appellants to invoke. The reason for this is obvious, considering the fact that the case is yet to be heard by the trial court.
I think what should have rather bothered the Respondent about the grounds of the appeal by the Appellants, particularly grounds 1 to 4 and their issue one, should have been the applicability or availability of and/or relevance of those grounds to this appeal, that is to say, whether the grounds and issue one are available for determination by this court, on appeal, considering the fact that the issue(s) therein seem to touch on the substance of the case before the lower Court, which is yet to be heard or tried, and the evidence of which the Appellants have blocked since the case commenced, as the evidence could not be adduced, because of the Appellants stance in this case, bringing application to question the legal capacity of thee Plaintiff, by the back door.
One would have expected the issue of the legal capacity of the Respondent, whether it is a juristic person, to form the basis of the defence of the Appellants at the trial court! And that made the filing of the statement of defence, indispensable, to put the Respondent to the strictest proof of its claim of it being a juristic person to bring the action. After the Plaintiff had pleaded, in paragraph 1 of the Amended Statement of Claim (page 5 of the Records), that:
“The Plaintiff is an association established, duly registered and has its registered office at Yan Baheed in Fagge Local Government Area of Kano State within the jurisdiction of this Honourable Court;” the Defendants (Appellants herein) had a duty to join issue with that by filing a defence, contesting that fact and enjoining the Plaintiff (Respondent) to proof their said due registration at the trial, and to get ready to lead evidence to debunk the claim of the Respondent.
By resorting to the preliminary objection, alleging that the trial court lacked competence, vires or jurisdiction to hear and entertain the suit, because the Plaintiff is not a juristic person; or has not proved that it is a registered or incorporated body known to law (without even filing their statement of defence to raise the issue), Appellants were simply telling the trial court not to hear the Respondent’s case until the Respondent could establish that it was a juristic person! But how would the Respondent establish its claim in paragraph 1 of the amended statement of claim, without leading evidence at the trial?
Appellants were simply jumping the gun and compromising the procedure. The law had anticipated such unguarded fits by a defendant and so specified the procedure for raising any point of law for determination (in lieu of demurrer) if a defendant was really convinced of having a point of law, to determine a suit, in limine. That is the essence of Order 24 Rules (1) and (2) of the Kano State High Court (Civil Procedure) Rules, 1988, which state:
“(1) No demurrer shall be allowed. Points of Law may be raised by Pleading.
(2) Any party shall be entitled to raise by his pleading any points of law, 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 either party, the same may be set down for hearing and disposed of at any time before the trial.”
In its ruling on the Appellants’ preliminary objection, the trial court had emphasized the legal requirement for Appellants to file their statement of defence, considering the fact that Respondent had asserted that it was a juristic person and that it documents of registration were even with the Appellants, hence its relief (b) for the said documents to be surrendered to the Respondent by Appellants, saying that the Appellant had not countered any of the averments; that if they, had filed their defence, it would have given the court additional clearer view of the Plaintiffs’ locus, as the same would have countered the claim of the Respondent on the issue. (See page 38 of the Records).
That made the trial court to accept the averments of the Respondent, which was repeated in its counter affidavit to the Appellants’ application, when it held:
“The non filing of thee statement of defence put me in a shadow of doubt and since the current trend in our courts is to ensure substantial Justice is done as against the highly misplaced technical Justice, so I have accepted the averments contained in the counter affidavit that the Plaintiff/Respondent is a Registered Association under Companies and Allied Matters Act, Cap 20 Laws of the Federation of Nigeria 2004 and as such they have the power to sue and be sued”.
Appellants had a duty to comply with that provisions to qualify to raise the preliminary objection. The Trial Court was therefore right to dismiss the objection. See MOYOSORE VS. GOVT. OF KWARA STATE (2012) 5 NWLR (PT.1293) 242, where this court held on the need to comply with the court’s rules, in the circumstances, as follows:
“That provision followed rule one of that Order which says:” No demurer 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 secures 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 demurer, 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.’
Understandably, the trial court went beyond determining the appropriateness of Appellants’ application at that stage of the case to pronouncing on the legal capacity of the Respondent, when it was obvious that was likely to be one of the issues to be established at the trial! But the fact that the Appellants never filed a defence to formally counter the claims of the Respondent on their legal status, may excuse the slip by the trial court, as the Appellant’s motion was, completely, misplaced. That slip is not enough, in my opinion, to defeat the ruling of the trial court, overruling and dismissing the application to abort the trial, as evidence to be adduced at the trial would reveal the truth about the legal status of the Respondent.
We have always cautioned Appellants against rushing to Appeal Court over every or any interlocutory ruling of a trial court, where such would frustrate the hearing of the substantive case, and amount to waste of time and resources pursuing a farce, whereas a little patience and legal prudence/tact on the part of the Appellant and his Counsel, would suggest pursuing the main cause to conclusion, and then taking up appeal on the ruling, together with the final appeal, if that still becomes necessary, at the end of the trial, and where waiting to the end of trial will not defeat the interlocutory appeal. See the case of NWANA V. UBN PLC (2013) LPELR – 21823 (CA) PAGE 13 – 14; UNITED FOAM PRODUCTS NIGERIA LTD VS. OPOBIYI (2012) 6 NWLR (PT.1297) 429.
Appellants can not therefore call on us to determine whether, in the circumstances of this case, the Plaintiff/Respondent is a Registered Association, under Companies And Allied Matters Act (CAMA), as that is what Appellants should raise at the court below for determination, if they have cause to contest paragraph 1 of Respondents’ Amended Statement of Claim, that it is “an Association established duly registered and had its registered office…”
Finally, I also have to comment on the attitude of the Appellants and their Counsel in this appeal, concerning the couching of the grounds of appeal.
I think it smacks of poor legal understanding or ill advice to pursue appeal against interlocutory ruling, which overrules an application seeking to re-introduce the demurrer procedure to stall trial of a suit, especially where the Applicant did not comply with Order 24 Rule 2 of the High Court (Civil Procedure) Rules, (by not filing his statement of defence, raising the point of law therein, before filing motion to set down the point of law for hearing). The error becomes compounded, where the Appellant seeks the Appellate court, to determine an issue or point of law, which needed evidence to have been adduced at the trial court, to determine it, and which could not be adduced, because the Appellant would not allow the case to be heard!
To me, it is a sad reflection on the slim practice experience and/or knowledge of the law and rules of practice by the lawyer who filed the processes and induced the Appellant to undertake, what I consider to be, a worthless costly legal trip to wasteland and confusion.
Order 6 Rule 2(3) of the Court of Appeal Rules, 2011, stipulates how, a valid ground of appeal should be couched – that it should be set forth concisely “the grounds upon which Appellant intends to rely… without arguments or narrative… ”
Order 6 Rule 3 says:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted”
Appellants’ grounds 3 and 4, and the particulars thereof, apart from touching on issue which needed evidence to be adduced at the court below to determine, were basically legal arguments and narratives, saying that the trial Court refused to be bound by judicial precedents, that is, stated decided cases of this court and of the Supreme Court, (which the trial court had distinguished from the case at hand); that that was an error by the trial Court.
That was a wrong stance by the Appellants’ Counsel and those grounds were defective grounds.
See the case of WAEC & ORS. VS. IKANG (2011) LPELR – 5098 (CA), and NNPC AMINU (2013) LPELR – 21396 (ca), where this court said:
“I have to also observe that the particulars which the Appellant formulated to support the ground of appeal were clearly in breach of the Rules of this Court (Order 6 Rule 2(3) of this Court’s Rules) which outlaws a ground of appeal that is argumentative and narrative. See also the case of OLUFEAGBU VS. ABDUL RAHEEM (2009) 18 NWLR (PT.1173) 384, where the Supreme Court said “A ground of appeal can only be competent, if the particulars and the nature of the alleged misdirection or error are clearly stated. The ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against the ratio decided in the decision, as apposed to obiter dictum. The particulars to the ground must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out. EGBE VS. ALHAJI (1990) 1 NWLR (PT.128) 546; AG OYO STATE VS. FAIRLAKE HOTEL (1988) 5 NWLR (PT.92) 1, Fairlake Hotel (1988) 5 NWLR (Pt.92) 1”
I therefore strike the grounds 1, 2, 3, 4 of the appeal for the defects highlighted above, as well as the Issue 1 (distilled from grounds 1 and 2).
I have already considered the issue 2 as flowing from ground 5 and have come to the conclusion that Appellant had a duty to comply with Order 24 Rules 1 and 2 of the High Court (Civil Procedure) Rules of Kano State 1988, to raise a valid point of objection to the trial, and that the trial Court was right to overrule Appellants’ preliminary objection. This appeal is therefore devoid of merit and is hereby dismissed.
Appellants shall pay the Cost of this Appeal, assessed at Fifty Thousand Naira only (N50,000.00) to the Respondent.
ABDU ABOKI, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother ITA G. MBABA, JCA, and I agree with his reasoning and conclusions therein. Accordingly, I hereby, dismiss the appeal and abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading 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 reasoning and abide the conclusions. I have nothing more to add.
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Appearances
Nassir Abdu Dangiri Esq.For Appellant
AND
Ibrahim Garba Waru Esq.For Respondent
