CHIEF WILFRED CHIBUZOR ONYEKWERE v. CHIEF MARTINS OGBUEBI & ORS
(2019)LCN/12616(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/OW/414/2014
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“But that discretion must be exercised judicially and judiciously. This is because the Court must take into consideration some facts inherent in the case. In the present case, the parties participated in the pre-trial conference factors on the 16th of June 2010. By virtue of the Provisions of Order 4 Rule 3 of the Court of Appeal Rules 2016. It says that: ‘The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made and to make such further or other orders, as the case may require including any order as to costs.'” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIEF WILFRED CHIBUZOR ONYEKWERE
(Suing by his Attorney Mr. Onyema Onyekwere) Appellant(s)
AND
1. CHIEF MARTINS OGBUEBI
2. CELESTINE NWOKEAGBARA
3. GOODLUCK OGBONNA
4. NGOZI EKPO
5. HILLARY AMAJIRI
6. CHIBUIKE JUMBO
7. OJUKWU OGBUJI
8. DESMOND ROBERT
9. OKWUDIWA AMAJIRI Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Abia State, Ukwa judicial Division, delivered on the 14th day of May 2014 in suit No. HUK/35/2013, in which the Court below dismissed the suit.
FACTS OF THE CASE
The suit, the subject matter of this appeal was instituted by writ of summons dated 8th March, 2013 in which the Appellant claimed against the Respondents certain reliefs which included a declaration that the Plaintiff/ Claimant/Appellant is entitled to Statutory Right of Occupancy over and in respect of all that piece or parcel of land lying, situate at ‘ODOABOSI EGBELU OKOMIRI LAND’ Obehie Asa, Ukwa Local Government Area of Abia State; the sum of One Million Naira as damages for trespass, and an order of perpetual injunction (Pages 2-3 of the Record of Appeal.)
It is the story of the Appellant that the Respondents (Defendants at the Court below) were served with both the claim and statement of claim on the 12th of March, 2013. They were further served a motion on notice for interlocutory injunction dated and filed 2/10/2013
The Respondents did not file a statement of defence, neither did they file a counter affidavit in opposition to the motion for interlocutory injunction.
Vide document dated, 29th of October, 2013 and filed 6th of November 2013, titled ?CLAIMANT?S TERMS OF SETTLEMENT WITH 3rd, 7th, 8th and 9th DEFENDANTS? the Appellant and the 3rd, 7th, 8th and 9th Respondents settled the suit amongst themselves with the said Respondents accepting that the Appellant is the owner of the land in dispute, and undertaking not to interfere with the claimant?s possession and dispute and or ownership.
By a motion filed on the 7th of November 2013, the Respondents prayed the Court below for an order dismissing the claimants’ suit No HUK/35/2010 on the Grounds that:-
(a) The suit was an abuse of Court process, the same having been previously dismissed by the Court on the 27th of July 2010.
(b) The suit is not maintainable by the claimant being an Attorney of a known principal.
On the 4th of December 2013, the 3rd, 7th, 8th and 9th Respondents filed DISCLAIMER TO THE MOTION ON NOTICE DATED 6/11/2013 BUT FILED ON 7/11/2013 AND PURPORTED REPRESENTATION OF C. U. NWANOSIKE ESQ IN THIS MATTER wherein they denounced the motion on notice filed on the 7th of November 2013, stating that they did not instruct C. U. Nwanosike Esq of counsel to file the said application, and that they do not consent to it.
The Appellant filed a counter affidavit and written argument in opposition.
The Respondents filed a further affidavit to on the 11th of December 2013.
The 3rd, 7th, 8th and 9th Respondents filed their respective counter affidavits and written argument in opposition to the motion on notice filed on the 7th of November 2013.
Both Appellant and the Respondents agree that Suit No. HUK/50/2005 was dismissed on the 27th of July 2010, when the matter came up for trial for the first time owing to the absence of both the Claimant and his counsel. That hearing was yet to commence, and the Defendants in the matter filed no counter claim.
The Appellant is dissatisfied with the Ruling of the Court below dismissing the Suit and has appealed it.
The Appellant filed an Original Notice of Appeal on the 13th of June 2014 which was amended in an amended Notice of Appeal filed on the 2nd of November 2016, encapsulating three (3) Grounds of Appeal.
The Appellant filed his brief of Argument on the 2nd of November 2016, but same was deemed filed on the 11th of June 2018. It is settled by C. U. Mgbeahuru Esq.
The 1st, 2nd 4th, 5th and 6th Respondents filed their brief of argument on the 5th of December 2016. It is settled by C. U. Nwanosike Esq.
The 3rd, 7th, 8th and 9th Respondents filed their Brief of Argument on the 9th of February 2017. It is settled by Eze Obinna Onwuma Esq.
On the 8th of November 2018 the parties adopted their respective briefs of argument.
The Appellant proffered three (3) issues for determination in his brief of argument. They are:
(a) WHETHER THE MOTION ON NOTICE DATED 6/11/2013 BUT FILED 7/11/2013 IS COMPETENT?
(b) WHETHER THE ORDER OF ?DISMISSAL? OF HUK/50/2005 MADE ON 27/7/2010 WAS AN ORDER MADE ON MERIT AND BARS THE MAINTENANCE OF SUIT NO HUK/35/2013?
(c) WHETHER SUIT NO. HUK/35/2013 IS IMPROPERLY CONSTITUTED AND THEREFORE NOT MAINTAINABLE
The 1st, 2nd, 4th, 5th and 6th Respondents distilled two (2) issues for determination in their brief of argument. They are:
(a) WHETHER THE COURT BELOW WAS WRONG IN LAW TO HAVE HEARD THE APPLICATION OF THE DEFENDANTS IN SUIT NO HUK/35/2013 CHALLENGING THE JURISDICTION OF THE COURT.
(b) HAVING REGARD TO THE FACTS BEFORE THE COURT BELOW, WHETHER THE RULING OF 14TH MAY 2014 WAS WRONG IN LAW.
The 3rd, 7th, 8th and 9th Respondents distilled one issue for determination in their brief of argument. It is:
WHETHER THE COURT BELOW HAD JURISDICTION TO HEAR AND DETERMINE THE MOTION DATED 6/11/2013 AND FILED 7/11/2013 ON 14TH MAY 2014
From the issues distilled by the respective parties, it seems to me that the issues for determination in this appeal can aptly be put thus:
1) WHETHER THE SUIT AT THE LOWER COURT NO. HUK/50/2005 WAS HEARD ON THE MERIT.
2) WHETHER SUIT NO. HUK/35/2013 IS MAINTAINABLE.?
I shall determine this appeal based on these two issues.
ISSUE NO 1.
From records Suit No. HUK/35/2013 is what gave rise to this Appeal, as reflected in the Endorsement by the Registrar filed on the 8th of March 2013, and Claim,Pages 1-4 of the Record of Appeal.
The Statement of Claim, in its paragraph 23, reflects the Claim of the Plaintiff against the Defendants in the Court below, Pages 8-9 of the Record of Appeal.
From records, on the 27th day of July 2010, in a suit No. HUK/50/2005 between the parties in suit No. HUK/35/2005, the Court recorded thus:-
The Claimant is absent. The 4th and 6th Defendants are present. Others are absent.
Chief T. E. Nwanosike Esq. for the Defendants.
No counsel is in Court for the Claimant, and there is no letter to the Court from any such counsel.
This matter was adjourned to 26/7/2010 for hearing after the Pre-trial conference on 16/6/2010. The Court was indisposed and did not sit yesterday and the Court is informed by Chief T. E. Nwanosike of learned counsel for the Defendants, and the Clerk of Court that the Claimant and his counsel were not in Court.
Today was the outstanding date of adjournment also taken by parties and their counsel on 16/6/2010.
The Court is further informed by Chief Nwanosike that the Claimant has never appeared in Court for this suit, and learned counsel has under Order 16 Rule 3 of the High Court Rules applied for a dismissal of this suit, and there being no reason or excuse before the Court to explain the absence of both the Claimant and his counsel, and in further consideration of the fact that the Defendants were here yesterday with their counsel and in Court again today, and the said dates having been agreed on by both learned counsel for the parties on 16/6/2010, this case will not be allowed to linger aimlessly beyond the vacation period as the Claimant must show diligence in pursuing an action instituted by him.
In the event therefore that this suit cannot be heard due to the absence of both the Claimant and his counsel without any reason before this Court, and the Defendants who have no counter claim are hereby adjudged to be entitled to judgment in the circumstances under Order 16 Rule 3 of the Abia State High Court (Civil Procedure) Rules 2009, and this suit is accordingly dismissed.
The Defendants are hereby awarded costs of 5,000.00 against the Claimant?.
Noteworthy, is that suit No. HUK/50/2005 was dismissed and not struck out on the 27th of July 2010.
Features to be noted in the Ruling of the Court on the 27th of July 2010 in respect of Suit No. HUK/50/2005, are as follows:-
(a) On the day the matter came up on the 27th of July 2010, the Claimant was absent. The 4th and 6th Defendants were present. The other Defendants were absent.
Chief T. E. Nwanosike appeared for the Defendants Claimant was unrepresented and there was no letter to Court explaining his absence or his Counsel’s absence
(b)The 27th of July 2010 was the adjourned date taken by the respective parties on the 16th of June 2010.
(c)The Court was informed by Chief Nwanosike that the Claimant had never appeared in Court.
(d)It is Chief Nwanosike of counsel for the 4th and 6th Defendants, that sought an order for dismissal of the suit
(e)Consequent upon all these above the Court concluded thus:-
‘in the event therefore that this suit cannot be heard due to the absence of both the Claimant and his counsel without any reason before its Court, and the defendants who have no counter-claim are hereby adjudged to be entitled to judgment in the circumstances under Order 16 Rule 3 of the Abia State High Court (Civil Procedure) Rules 2009, and this suit is accordingly dismissed
The following is apparent. The judgment was given in default of appearance. There is nothing on record to show that the Claimant was served with a counter claim by the Defendants.
It is also apparent that pursuant to motion on notice filed on the 9th of August 2010, the Claimant/Appellant sought an Order of Court re-listing suit No. HUK/50/2005 which was dismissed on the 22nd day of July 2010. He should have brought an application to set the Order of Court aside and not for re-listing. pages 72-75 of the Record of Appeal.
It is also apparent that under the Provisions of Order 16 Rule 3 of the Abia State High Court (Civil procedure) Rules 2009, which makes provision for default of appearance by a Claimant, the trial Judge has a discretion to enter judgment in favour of the Defendant.
But that discretion must be exercised judicially and judiciously. This is because the Court must take into consideration some facts inherent in the case. In the present case, the parties participated in the pre-trial conference factors on the 16th of June 2010.
By virtue of the Provisions of Order 4 Rule 3 of the Court of Appeal Rules 2016. It says that: ‘The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made and to make such further or other orders, as the case may require including any order as to costs.’
In the affidavit in support of the motion to re-list Suit No. HUK/50/2010, the Claimant/Appellant had in paragraphs 3 to 10 thereof, proffered reasons why he was not in Court, and why his counsel was absent on the 22nd of July 2010. The Court below should have taken into cognizance these facts and in the interest of fair hearing, afforded the Claimant the opportunity to be heard before dismissing the suit.
This Court has the power to set aside the judgment delivered on the 27th of July 2010 under the Provisions of Order 4 Rule 3 of the Court of Appeal Rules 2016.
ISSUE NO 2.
The simple answer to this issue is necessarily in the negative. This is because the judgment in HUk/50/2005, not being on the merits, it is one that should be set aside. Consequently, Suit No. HUK/35/2013 becomes maintainable. Issues 1 and 2 are therefore resolved in favour of the Appellant.
The Appeal succeeds. The judgment of the Court below in suit No. HUK/50/2005, delivered on the 27th of July 2010 is hereby set aside. Suit No. HUk/50/2010 shall be remitted to the Chief Judge of Abia State for reassignment to another Judge for hearing.
N50,000 costs in favour of the Appellant.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had read before now, the leading judgment just delivered by my learned brother Rita N. Pemu, JCA. I agree entirely with his opinion and reasoning. I also allow the appeal. The decision of the Court below is hereby set aside. I abide by the consequential order made as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
C. U. Mbeahuru, Esq.For Appellant(s)
C. U. Nwanosike, Esq. for 1st , 2nd, 4th, 5th and 6th Respondents.
Eze Obinna Onwuma, Esq. for 3rd, 7th, 8th and 9th RespondentsFor Respondent(s)
