CHIEF BERTHRAND E. NNONYE v. D. N. ANYICHIE & ORS
(1999)LCN/0587(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of October, 1999
CA/E/30/96
JUSTICES:
NIKI TOBI Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
Between
CHIEF BERTHRAND E. NNONYE Appellant(s)
AND
- D. N. ANYICHIE
2. SUNDAY NDUBISI
3. LOUIS ODO Respondent(s)
TOBI, J.C.A. (Delivering the Leading Judgment): The plaintiff/appellant filed an action at the High Court, Awka for damages and return of money collected from the plaintiff. The respondent filed a motion praying the court for “an order striking out the suit for not being properly filed before the court.” The motion was argued and upheld by the learned trial Judge. He said:
“The affidavit in support of this motion has merit on the issue prayed for in the motion paper. There is no need for me in this application to go into the non-observance of sec. 87 of the Evidence Law because this application succeeds on the issue of jurisdiction. The case of the plaintiff is therefore struck out.”
Dissatisfied, the plaintiff filed an appeal. Briefs were filed and exchanged. Appellant filed six issues while respondents filed only one issue for determination. I do not intend to reproduce the issues here.
Taking Issues Nos. 1 and 2 together, learned counsel for the appellant, Dr. Felix Obi argued that where there is no patent defect on the face of a writ which indicated incompetence in Law, and particularly where pleadings have been filed and no facts were pleaded suggesting a challenge to jurisdiction or competence, a trial Judge should not dismiss a suit without hearing the evidence adduced before him by the parties.
He contended that a party who relies on statutory provision for his case should plead such statute, otherwise he cannot found his defence at the trial on the provision of the statute. Contending further that parties are bound by their pleadings, counsel cited Chief Ikeanyi v. A.C.B. Ltd. (1997) 2 SCNJ 93 at 94 – 95; (1997) 2 NWLR (Pt. 489) 509.
On Issues Nos. 2, 3, 4 and 5, which counsel argued together, it was submitted that the failure of the trial Judge to consider evidence and the pleadings before him judicially occasioned a miscarriage of justice. The trial Judge has a legal duty to consider judicially, the materials before him, in order to arrive at the conclusion as to whether or not he has jurisdiction to hear the suit. Especially as there was nothing patent on the face of the writ which would indicate that he lacked jurisdiction. learned counsel argued.
In a situation where affidavit evidence of the parties was in conflict, the Judge ought to call oral evidence to resolve the conflict before arriving at his decision, counsel further argued. His failure to do so in the case, occasioned a miscarriage of justice, he submitted. Counsel cited Onuoha v. The State (1988) 7 SCNJ (Pt. 1) 20: (1988) 3 NWLR (Pt. 83) 460: Egbunike v. ACB Ltd. (1995) 2 SCNJ 58 al 62 and 78; (1995) 2 NWLR (Pt. 375) 34; Adeyemo v, Arokopo (1988) 6 SCNJ 1 at 6: (1988) 2 NWLR (Pt.79) 703 and Adkins Scientific Ltd. v. Adadetoyinbo (1995) 7 SCNJ 233 at 234 and 235: (1995) 7 NWLR (Pt. 409) 526.
On Issue No.6, learned counsel submitted that the learned trial Judge by clinging strictly to the exact word used in the Law failed to consider the meaning of the expression “demand” and the relevance and intendment of the act in respect of the provisions. The Judge therefore failed to understand and apply the meaning of the words, “change to produce” authority as being synonymous and with the same effect as “demand” for authority, counsel submitted.
Learned counsel also submitted that the Judge stuck to extreme technicality in his consideration of the motion, and was therefore wrong in Law and occasioned a miscarriage of justice. It is the Law and practice by courts of record that they should consider the substance of any case before it and not merely adhere to extreme technicality of interpretation and proceedings, he contended. He cited Dr. Okonjo v. Dr. Odje (1985) 10 SC 267, Counsel urged the court to allow the appeal, Learned counsel for the respondents, Mr. C. O. Anah, submitted that failure lo comply with Section 41(1) of the Sheriffs and Civil Process Law which is a condition precedent to the filing of the action, rendered the suit incompetent and the court lacked jurisdiction to entertain it. He cited Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 595; (1962) 2 SCNLR 341.
Counsel urged the court to dismiss the appeal.
Learned counsel for the appellant formulated six issues in this appeal.
Learned counsel for the respondents formulated one issue. In my humble view,
Learned counsel for the respondents rightly formulated only one issue because the appeal in reality involves one issue and it is the issue of condition precedent to the filing of an action.
Learned counsel for the appellant filed five grounds of appeal, and so he had one issue in excess of the grounds of appeal. The arrangement at pages 1 and 2 of the brief shows that Issue No. 1 covers grounds 1 and 2; issue 2, covers grounds 3 and 4; issue 4 covers grounds 2, 3 and 4; issue 4 covers the same grounds 2, 3 and 4 finally issue 6 covers grounds 4 and 5.
This is an unfortunate position. It clearly offends the rules of brief writing. The Supreme Court and this court have said times without number that on no account should issues formulated in a brief exceed the grounds of appeal in the Notice of Appeal. While the courts may tolerate equal number of grounds and issues, they cannot tolerate a situation where there are less grounds of appeal than issues formulated for determination of an appeal. The reason is obvious. Grounds of appeal complain on specific aspects in the judgment of the court but issues deal with a number or agglomeration of grounds.
In Agu v. Ikembe (1991) 3 NWLR (Pt. 180) 385 Karibi- Whyte, JSC, said at page 401:
‘The Court has counselled counsel formulating issues on several occasions to ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds relied upon, but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. This is because whereas an issue to be determined can take into consideration a number of grounds of appeal, it is not desirable to split a ground of appeal into a number of issues.
See A. – G. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe and Another (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137.”
In Ugo v. Obiekwe and Another (1989) 1 NWLR (Pt. 99) 566, Nnaemeka Agu, JSC, said at page 580:
“Counsel appeared to have worked on the misapprehension that every possible slip raises an issue. The result is that he framed too many issues, nine for six grounds of appeal. This appears to be a reversal of the usual practice whereby one or two or more grounds raise an issue: one ground can never properly raise more than one issue.”
In Anie and others v. Chief Uzorka and others (1993) 8 NWLR (Pt. 309) 1, Onu, JSC, said at page 16:
“The appellants through their counsel have formulated seven tautologous issues, which in my view, are amorphous and in the apt words of the respondents in their brief of argument at page 2 thereof “are construed upon a misapprehension of the true reasoning and the judgment of the Court of Appeal.” … Hence, where as in the instant case, there are five grounds of appeal but learned Senior Advocate on appellants’ behalf has submitted seven issues for the determination of court, such a proliferation of issues can hardly be justified … In fact, it is now settled that such issues for determination must of necessity be limited by, circumscribed and fall within the scope of the grounds … The seven questions submitted on behalf of the appellants are therefore accordingly discountenanced for neither limited by, circumscribed nor falling within the scope of the grounds of appeal’.
In Adisa v. The State (1991) 1 NWLR (Pt. 168) 490, the Court of Appeal said at page 502:
“The issues formulated by learned counsel are rather prolix, verbose and unwieldy. It is not convenient to state them here verbatim and literatim. They are quite a number too many. They overlap. They also coalesce in some material particular. The Supreme Court and this court have times without number warned counsel to be precise in the formulation of issues for determination. They are Issues and should have the content and character of issues. They are not Grounds of Appeal.”
See also Anon Lodge Hotels and Another v. Mercantile Bank of Nigeria Ltd. (1993) 3 NWLR (Pt. 284) 721; Cankon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (Pt. 297) 55; Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt. 188) 664; Leedo Presidential Hotel Limited v. Bank of North Limited and Another (1993) 1 NWLR (Pt. 269) 334; Madagwa v. The State (1988) 5 NWLR (Pt. 92) 60.
I have carefully examined the six issues formulated by learned counsel for the appellant and quite a number of them go to no issue as they flirt in the brief not identified or identifiable to any ground or grounds of appeal. I do hope counsel will find the above decisions useful in future. I have intentionally moved that far to assist him.
Let me deal with the only issue properly formulated by counsel for the respondents. Section 41(1) of the Sheriffs and Civil Process Law is relevant and it states:
“No action shall be commenced against any bailiff for anything done in obedience to any process issued by a court unless
(a) a demand for inspection of the process and for a copy thereof is made or left at the office of the bailiff by the party intending to bring the action or his solicitor or agent, in writing signed by the person making the demand; and
(b) the bailiff refuses or neglects to comply with the demand within six days after it is made.”
It is common ground that the 2nd and 3rd respondents were bailiffs attached to the High Court, Awka at the material time. Therefore the applicable law as rightly cited by Learned counsel for the respondents is section 41(1) of the Sheriffs and Civil Process Law of Anambra State. The subsection provides for conditions precedent before an action can be commenced against a bailiff. There are two conditions. The first is that there must be a demand for inspection of the process and for a copy thereof made by the party intending to bring the action or his solicitor or agent. The demand must be in writing and duly signed by the person making the demand. The second is that the bailiff refuses or neglects to comply with the demand within six days after it is made.
The two conditions are conjunctive and must all be satisfied before an action can be commenced or instituted against the bailiff. In other words, both the demand and the subsequent refusal must be present before a valid action can be commenced or instituted against the bailiff. Of course, the bailiff has not the whole time in the world to play with the demand in terms of deciding whether to comply with it or not. The law restricts him to six days after the demand is made under section 41(1)(a) of the Law. That is the language of section 41(1)(b) of the Law.
It is the law that before a plaintiff commences an action which requires the fulfillment of a condition precedent or pre-condition to the commencement of the action, that condition must be fulfilled before the action can be validly commenced.
In Provisional Council, Ogun State University and Another v. Mrs. Makinde (1991) 2 NWLR (Pt. 175) 613: the Court of Appeal held that where there is a non-compliance with a stipulated pre-condition for setting the legal process in motion any suit instituted in contravention of the condition is incompetent and that court is equally incompetent to entertain the suit. The court further held that section 45(4) and (5) of the Ogun State University Edict, 1982, having provided a condition that an action cannot be commenced against the University unless three months written notice is given to the University before the University could be sued, the failure by the plaintiff to give such notice renders the action invalid and the court ought not to entertain it.
In Seaview Investments Limited v. Munis and others (1991) 6 NWLR (Pt.195) 67; the Court of Appeal also held that where the legality of a final action depends upon the performance of an action precedent to it or a collateral action, the failure to perform that action of the collateral action is prejudicial to the final action. See also Katsina Local Authority v. Makudawa (1971) 1 NMLR 100 at 105. Gambari v. Gambari (1990)5 (Pt. 152) 572: Abakaliki Local Government Council v. Abakaliki R. M. O. (1990) 6 NWLR (Pt. 155) 182.
In view of the fact that the appellant did not comply with the provision of section 41(1) of the Sheriffs and Civil Process Law before commencing the action against the respondents, the action is incompetent and the trial Judge rightly, in my view, held that he lacked jurisdiction to entertain the action. The appeal lacks merit and it is hereby dismissed. The judgment of the learned trial Judge is hereby upheld. I award N3000.00 costs in favour of the respondents.
OLAGUNJU, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother. Niki Tobi, JCA., and I agree with his conclusion that this appeal lacks merit and it should be dismissed.
The issue of brief writing which is prompted by the shoddy way in which the Appellant’s Brief of Argument was prepared has been dealt with fully in the leading judgment and I have nothing useful to add to the issue which has been treated exhaustively and which is fundamental to a smooth take-off of an appeal.
On the merit of the appeal, the profound misconception by learned counsel for the appellant about the duty placed On the court when a preliminary objection is taken to the constitution of an action calls for a few comments in aid of the leading judgment. The argument of the learned counsel would appear to be that there is a duty on the court to run the trial of an action full length even where it is apparent on the face of the suit that it is incompetent and nothing can be done by the plaintiff to save the action. That is a partisan posture that looks exclusively at the interest of the plaintiff but cannot spare a thought for either the opponent or the law.
Instances abound where it is permissible to raise a preliminary objection that can terminate a case at the threshold the commonest of which is where the competence of an action is called into question as in this case.
In a case where the competence of the action is in issue the court not only has the authority but also the duty to terminate the action in limine where lack of competence is established. This is because the competence of an action rubs on the jurisdiction of the court to hear it within the classification of the elements that make up jurisdiction as expounded in Madukolu v. Nkemdilim (1962) 1 All NLR. (Pt. IV) 587, 595; (1962) 2 SCNLR 341. The relevant element for the purpose in hand is the condition that the law enjoined to be satisfied before instituting an action.
It is against that background that the respondents as the defendants at the trial court challenged the constitution of the action that the appellant who sued the 2nd and 3rd respondents who were bailiffs of the Anambra State High Court did not take the necessary steps which the law enjoined him to take before instituting the action. This the respondents were entitled to do and the appellant had a duty to prove that he had taken the necessary step on the authority of Ajao v. Sonola, (1 973) 5 S.C. 119, 123.
Sub-section 41(1) of the Sheriffs and Civil Process Law of Anambra State laid down the step that must be taken by one desirous of instituting an action against a court bailiff which is two-fold. He must make a written demand on the bailiff for inspection of the process and for a copy of the process and he must prove that within 6 days from the date of the demand the bailiff refused or neglected to meet the demand.
The duty laid down under the Law is a condition precedent which the appellant qua plaintiff must satisfy before he instituted his action. Failure to do so carries far-reaching implications. viz., he cannot file an action against the bailiffs concerned and if he files one in disregard of the behest of sub-section 41(1) of the Sheriffs and Civil Process Law as he did the court is barred from entertaining the action because it is incompetent. See Dr. Esin v. Maltzen Tinim Nigeria Ltd., 1966) 1 All NLR. 233, 235; Ahmed v. Gusan Local Government (1980) FNR. 491; and Abakaliki L.G.C. v. Abalakili R.M.O. (1990) 6 NWLR (Pt. 155) 182, 190.
That in sum is the duty of the appellant as the plaintiff which he shirked. On the moaning of the appellant about his action not being heard on the merit by the trial court which he highlighted as a cloak we cover up his mistake, it will be enough to say that a trial court has an ample discretion on whether to entertain a preliminary objection for which guide is provided by Atugbue v. Chime (1963) 1 All NLR 208, 211 and Aina v. The Trustees of Nigeria Railway Corporation Pensions Fund (1970) 1 All NLR 281,287. A pointer to when a discretion can be exercised to ensure justice to all concerned including the court was given by the West African Court of Appeal in John Mills v. Awoonor-Renner, (1940) 6 WACA. 144, 145, where in a not too dissimilar situation from the case in hand the court opined that:
It would be manifestly absurd to suggest that a court was bound to proceed with the taking of lengthy evidence of the parties to a suit where it appeared that the whole suit could be decided upon the pleadings without any evidence being called.”
That is a situation where the court is deliberating on a potentially viable case. It is much more snappy in cases which are in embryo the survival of which depends on the competency of the action and where the court has a duty to examine and lay the action to rest without the benefit of enjoying a sunshine on the cause List. Such is the case where the court’s jurisdiction is called into question. In such a case the jurisdiction of the court is confined to ascertaining whether it can entertain the action. See Oloba v. Akereja, (1988) 3 NWLR (Pt. 84) 508, 520; and Okoye v. Nigerian Construction and Furniture Company Ltd. (1991) 6 NWLR (Pt. 199) 501,528 – 529. It follows as a corollary that if after he was given the opportunity to prove his compliance with sub-section 41(1) of the Sheriffs and Civil Process Law of Anambra State the appellant could not satisfy the court below that he had done so the whole complaint by the appellant in this appeal is a load of bunkum and an eye-wash.
For these reasons but more for the fuller reasons given in the leading judgment I also dismiss this appeal as totally without merit. I abide by the order of costs.
FABIYI, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother Tobi, JCA. I completely agree with his reasoning and conclusion which I adopt as mine.
The appeal lacks merit and it is also dismissed by me. I endorse the order relating to costs in the lead judgment.
Appeal Dismissed.
Appearances
Dr. Felix Obi For Appellant
AND
- O. Anah, Esq. For Respondent
