DANIEL UZOCHUKWU ANAZONWU v. DR. E. C. ILOEGBU & ORS
(2013)LCN/6420(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of July, 2013
CA/E/385/2009
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
DANIEL UZOCHUKWU ANAZONWU
(for himself and on behalf of Obi Anazonwu family of Ogbe Ozalla Village Onitsha) Appellant(s)
AND
1. DR. E. C. ILOEGBU
2. VINCENT SUNDAY ONONYE
3. BEN OBANYE Respondent(s)
RATIO
THE DUTY OF THE COURT WHERE THERE ARE TWO APPLICATIONS BEFORE IT- ONE SEEKING TO REGULARIZE A DEFECT AND ONE TO DISMISS THE CASE ON GROUND OF DEFECT
In the consideration of the facts of this case and the relevant case law authorities well consulted, I hold that where there are two applications before the court – one to dismiss the case on ground of defect and the other seeking to regularize the defect, the application seeking to regularize should be heard and determined in priority over the one seeking to destroy the suit. This is based on the interest of justice and good sense. See A.G. Federation v. Fufunwa Onikoyi (2006) 18 NWLR (part 1010) page 51 at page 59 ratio 7; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 272) 652 paras B to C, BCE Consulting Eng. v. NNPC (2004) 3 NWLR (Pt. 859) 1 at page 72 and Ani v. Nra (1996) 4 NWLR (Pt. 440) page 101 at 120.
The Supreme Court of Nigeria, per NNAEMEKA-AGU on attitude of court to technicalities in the case of Consortium M.C v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 137 ratio 6 held inter alia:
“I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which charaderized some earlier decisions of courts on the matter. Instead, it now pursues the course of substantial justice”. PER ABDUL-KADIR, J.C.A.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the leading Judgment): This is an interlocutory appeal brought to this court, challenging the ruling of High Court of justice, Anamba State sitting at Onitsha Judicial Division on 23rd day of May, 2009 per Hon. Justice G. C. Anulude.
The brief literature review of the case is that the appellant who was the plaintiff at the lower court instituted the instant suit No. 0/121/96 against the defendants, now the respondents.
In his 18 paragraph original statement of claim dated 3/6/1996 the plaintiff/defendants/respondents as follows:
“(a) A declaration that the plaintiff is entitled under customary Law of Onitsha to the statutory right of occupancy of the piece or parcel of land known as No. 7B Obi Street, Onitsha shown in Survey Plan No. ALM/AN/D04/96 attached to this statement of claim.
(b) N50,000.00 (Fifty thousand Naira only) being damages for trespass to the said piece or parcel of land.
(c) Perpetual injunction restraining the Defendant by himself his servants, agents and/or workmen from further construction in the land or any interference with the plaintiff’s property right therein”
The plaintiff/appellant brought an amended statement of claim dated 25/7/1997 and filed on the same date, but his reliefs against the defendants/respondents did not change.
On 30/5/2000, the defendants/respondents filed their 36 paragraph statement of defence cum counter-claim dated the same day. The defendants/respondents claims are as follows:
“(a) A declaration that the ancestors of the Defendant settled at the Onitsha water-side before the ancestors of the plaintiffs arrived from Benin and settled at Onitsha Inland Town.
(b) A declaration that the 2nd and 3rd Defendants are the Superior/original Landlords of Ogbe Umu Onitsha land.
(c) A declaration that only the Defendants family are entitled to kola from the kola tenants in Ogbe Umu Onitsha
(d) An injunction restraining the plaintiffs from demanding kola from any of the occupiers of the said Ogbe Umu Onitsha.
It is on record at page 18 of the record of appeal that the 1st defendant/respondent filed 18 paragraph amended statement of defence dated 6/3/2002 and filed on the same date. The 2nd and 3rd defendants/respondents had filed their joint amended statement of defence and further amended statement of defence.
On 21/10/2008, the appellant file a Motion on Notice dated 20/0/2008 seeking the following reliefs:
a) An order granting leave to the Plaintiff/Applicant herein to amend his statement of claim dated 2nd March, 2007 in line with the underlined portions of the Amended Statement of Claim, copy of which is hereto annexed as Exhibit “A” to the affidavit in support of this motion.
b) An order granting leave to the plaintiff/Applicant to amend his list of documents to be relied on during the trial in line with the underlined portions of the Amended list copy of which is hereto annexed and marked Exhibit “B” to the Affidavit in support of this motion.
c) An order deeming the above documents as properly filed and served the filing fees having been paid.
d) Any other Order(s) as the Honourable Court may deem fit to make in the circumstances”.
The said motion of the plaintiff/appellant was supported by 7 paragraph affidavit and a written submission of counsel.
On 13/3/2009, the 2nd and 3rd defendants/respondents through their counsel filed a Motion on Notice dated the same day, seeking for an “order” that the plaintiff’s case in this suit is null and void and should be struck out on the ground that the claim, statement of claim and other originating processes of this case along with all amendments to same were signed in the firm name of J. H. C. Okolo, SAN and Company not being a person whose name is on the roll of legal Practitioners in Nigeria and was not entitled to sign and issue the said processes the said Motion was supported by a 6 paragraph affidavit and written submission of counsel. On 23/5/2009 the lower court delivered a ruling setting down the defendant’s Motion of 13/3/09 for hearing against the contention of the learned counsel for the plaintiff that the plaintiff’s Motion of 21/10/2008 be heard first.
The appellant being dissatisfied by the ruling of the court brought an appeal to this court vide Notice of Appeal dated 4th August, 2009 and filed on 5/8/2009 praying the Court of Appeal to allow the appeal, set aside the Ruling of the lower court and make an order for the plaintiff’s Motion to be heard first.
In accordance with the rules of this court, the parties through their legal representatives filed and exchanged their Briefs of Argument in support of their contentions in the appeal. The appeal was taken on 14th May, 2013. The Appellant’s Brief of Argument dated 15th February, 2010 and filed on 17/2/2010 was settled by Chief Okwuchukwu Ugolo, SAN for the appellant. The 1st Respondent’s Brief of Argument dated 9/8/2010 and filed on the same date was settled by T. U. Oguji Esq. for the 1st respondent. The 2nd and 3rd respondents’ Brief of Argument dated 12/7/2010 and filed on the same date was settled by Rita Itukwe for the 2nd & 3rd respondents. The Appellant’s reply Brief to the 1st respondent’s brief and the 2nd & 3rd respondents’ Brief of Argument were respectively settled by Chief Okwuchukwu Ugolo, SAN for the appellant.
The learned senior counsel for the appellant formulated a sole issue for determination of this appeal. The appellant’s lone issue reads thus:
“Whether the learned trial judge was right in law when he shut his eyes to the submission of Plaintiff/Appellant and came to the conclusion that the Defendants/Respondents destructive application should be heard first before the Plaintiff’/Appellant’s curative application”.
The Learned Senior Counsel emphasized that it is trite law that where a motion or matter seeks to terminate or strike out a matter on account of an irregularity and another motion or application seeks to cure the defect, it is the duty of the court to hear the latter as justice and equity demand that he motion to save the substantive action should be heard first. He cited the following cases in aid of his submission.
1. Consortium M.C. v. N.E.P.A. (1992) 6 NWLR (Pt. 246) 132 at 146 paragraphs B to C, per Walli, J.S.C.
2. UBA PLC V. Ujor (2001) 10 NWLR (Pt. 722) 589 at page 607 paragraph H, per Opene, JCA
3. Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 paragraph B – C, per Karibi Whyte J.S.C.
4. NDDC v. Precision Asso. Ltd. (2006) 16 NWLR (Pt. 1006) 527 at 557 to 558 paragraphs E to A, per Omokri, JCA
The learned senior counsel pointed out that the positions of the above – listed authorities were cited to the learned trial judge, before his ruling of 23/5/2009, yet he failed to and or neglected to consider them one way or the other and curiously concluded his finding. He contended that the decision of the learned trial judge was perverse for having shut his eyes to the obvious case law authorities cited by the appellant. He supported his contention with the following cases:
1. Onu v. Idu (2006) 12 NWLR (Pt. 995) 657 at 686 paragraphs C to D per Ogbuagu, JSC.
2. Agbomeji v. Bakare (1998) 9 NWLR (Pt. 564) 1 at 8;
3, NEPA v. Ososanya (2004) 5 NWLR (Pt. 867) 601 at 624 paragraphs G to H
4. Egba v. Appah (2005) 10 NWLR (Pt. 934) 464 at 480 paragraph H, per Fabiyi J.C.A.
5. Yau v. State (2005) 5 NWLR (Pt. 917) 1.
6. Kuma v. Kuma (1936) 5 WACA 4.
7. Akinloye v. Eyiyola (1968) NMLR 92.
Relying on the strength of his submission, the learned Senior Counsel for the appellant urges the Court of Appeal to resolve the sole issue in favour of the appellant, allow the appeal and set aside the Ruling of the trial court and make an order for the Plaintiff’s/Appellant’s motion to be heard first.
The learned Counsel for the 1st Defendant/Respondent formulated a sole issue for determination of this appeal. The sole issue reads thus:
“Whether the learned trial court was not right when it held that the 2nd and 3rd respondents’ Motion challenging the competence of the suit nay the jurisdiction of the court to entertain the substantive suit should be heard and determined first before the appellant’s non curative motion for amendment of pleadings”.
It is the submission of the learned counsel for the 1st respondent that where there are multiple applications pending before a court as was the case in the court below, it is the duty of the court to find out the nature of the applications in its filed and to determine which of them should take priority over the other based on the established principles of law. He emphasized that the learned trial judge correctly discharged his duty when after looking at the nature of the two applications before the court, decided that the 2nd & 3rd respondents’ application which challenges the competence of the suit should be heard first.
The learned counsel contends that the authorities cited by the appellant are totally irrelevant and inapplicable as the Plaintiff/appellant’s application was not curative in nature. He stated that if the appellant had come up with a motion seeking to cure the fundamental defect in his originating process as raised by the 2nd & 3rd respondents, the trial court would have been guided by the rule as set out in the case of A.G. Federation v. Fufunwa Onikoyi (2006) 18 NWLR (Pt. 1010) 51 at 88-89 paras H-A. He further stated that where an action is not initiated by due process of law, the court will lack the competence to hear it. He cited the case of Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 347. He contends that the exception to the rule on the hearing of two contemporary motions as stated in the case of A.G. Fed. V. Fufunwa-Onikoyi is anchored on the legal principle set down in the case of Offia v. Ejem (2006) 11 NWLR (Pt. 992) 652 at 663 paras B-C. The learned counsel further stated that jurisdiction is a threshold issue. It is fundamental to the exercise by a court of the powers conferred on it by Section 6 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria. He cited the case of Macfoy v. U.A.C. (1962) A.C. 152. In the light of the above, the learned counsel submitted that the ruling of the lower court, the subject matter of this appeal, is well founded in law and that it has all the attributes or constituent parts of a good ruling. He urges the Court of Appeal to dismiss the appeal.
The learned counsel for the 2nd & 3rd respondents in his brief of argument formulated a sole issue for determination in this appeal. The sole issue reads thus:
“Was the learned trial Judge not right when she held that the 2nd & 3rd respondents’ motion on notice bothering on the competence of the suit nay jurisdiction of the court even though filed later in time should be heard and determined first before the appellant’s prior motion on notice seeking to amend the appellant’s pleadings”.
The learned counsel contends that it has been chorused like a mantra from time immemorial in our jurisprudence that once an issue of jurisdiction of a matter is placed before a court, it must take precedence over all other issues. He added that this judicial attitude is not a mere abstraction of the ingenuity of our law lords, but indeed the content upon which the importance of jurisdiction is anchored is unrivalled and unchallenged as it is, undeniably, the bedrock of our procedural corpus juris. He cited the following cases in aid of his contention.
1. Fagbola v. K.C.C.I.M.A. (2006) NWLR (Pt. 977) 433.
2. Gafar v. Govt. of Kwara State (2007) 4 NWLR (Pt. 1024) 403 paragraphs G-H.
3. Adeyemi v. Olakunri (1994) 2 NWLR (Pt. 327) 507 paragraphs D-F
4. Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
5. Lawal v. Oke (2001) 7 NWLR (Pt. 711) 116.
The learned counsel further contends that the act of the Plaintiff at the point of commencing the Suit leading to this appeal, that the plaintiff’s originating processes were signed in name of a law firm, J.H.C. Okolo and Company, which said name, most regrettably, is not on the roll of legal practitioners in Nigeria as required by law is not only contemptible but a breach of a condition precedent which renders the said processes wholly incompetent and consequently robs the court of jurisdiction to entertain this matter. He cited the following cases to support his contention:
1. Emmanuel Okafor & Ors. v. Augustine Nweke & Ors. (2007) 10 NWLR (Pt. 1043) 527 at 531-532.
2. New Nigeria Bank Plc v. Denclag Limited & Anor (2005) 4 NWLR (Pt. 916) 549 at page 582-583.
3, Nwankwo v. Ononeze-Madu (2000) 4 NWLR (Pt. 916) 470
4. Amechi v. INEC (2007) 9 NWLR (Pt. 1040) 504 at 525-526.
5. Macfoy v. UAC (1962) A.C. 152 at 160.
6. Odiase v. Agho (1972) 1 All NLR (Pt. 1) 170.
7. Skenconsult Nig. Ltd. & Anor v. Godwin Ukey (1981) 1, 2, 4, & 5 S.C.
8. O.A.U. Ile-Ife v. R. A. Oliyide & Sons Ltd. (2001) 7 NWLR (Pt. 712) 456.
It is the further submission of the learned counsel that the position of the law on a curative vis-a-vis a destructive application clearly pictures a situation of a technical error which can be corrected, and as such does not apply to the instant case. He cited the cases of Dalfam (Nig) Ltd v. Okaku Int’l Ltd 15 NWLR (Pt. 735) 203 at pages 249 to 251, Mobil Producing (Nig) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 434-435, State v. Onagoruwa (1992) 2 SCNJ (Pt. 1) 1 at 308 and Owners of the MV ‘Araba’ v. N.A.I.C (2008) 11 NWLR (Pt. 1097) 182 at 312. On this note he prays the Court of Appeal to resolve this issue in favour of the 2nd & 3rd respondents and dismiss the appeal in its entirety.
The learned Senior Counsel for the appellant in his reply to the 1st respondent’s brief of argument pointed out that the purport of the Appellant’s application is to cure and bring the Appellant properly before the trial court in order to ensure substantial justice. He contends that the appellant’s motion was not only curative, but was also first in time. He added that a grant of the appellant’s application will render useless and unnecessary the 2nd & 3rd respondent’s objection as the amended statement of claim attached to the Appellant’s application was properly signed by J.H.C. Okolo, SAN whose name is on the roll of legal practitioners. The learned Senior Counsel pointed out that the case of A.G. Fed. v. Fufunwa-Onikoyi as cited and relief upon by the 1st respondent is not on all fours with the fact of the instant case. He submitted that the issue in Fufunwa’s case was bothering on application for interlocutory injunction and a notice of Preliminary Objection. He added that an application for interlocutory injunction cannot be said to be a curative application. He also pointed out that it is false and misleading for the learned counsel for the 1st respondent to contend at page 10 of his brief that the court held in A.G. Fed. v. Fufunwa-Onikoyi that a destructive motion should precede a curative one. He stressed that the Supreme Court had deprecated such practice of misinterpreting the law. He cited the case of Omnia (Nig.) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt. 1058) 576 at 624 paragraphs B-C, per Muhammed, JSC.
The learned Senior Counsel further pointed out that the cases of Madukolu v. Nkemdilim, Offiah v. Ejem and Macfoy v. UAC cited by the 1st respondent’s counsel are totally irrelevant to the facts of the instant case. In conclusion, he urged the Court of Appeal to grant his prayers in the appellant’s brief.
In his reply to the 2nd & 3rd respondent’s brief of argument, the learned Senior Counsel for the appellant pointed out that the cases of Fagbola v. K.C.C.I.M.A; Gafar v. Govt. of Kwara State, Adeyemi v. Olakunri, Madukolu v. Nkemdilim, Lawal v. Oke, Okafor v. Nweke, NNB Plc v. Denclag Ltd. Nwankwo v. Ononeze-Madu, Amechi v. INEC, Macfoy v. UAC, Odiase v. Agno, Skenconsult Nig. Ltd. v. Ukey and O.A.U. Ile-Ife v. R. A. Olayide & Sons Ltd. do not share similar facts with the instant suit on appeal. He urges the Court of Appeal to discountenance the argument of the 2nd & 3rd respondents’ counsel in that regard.
He further contended that the argument of counsel for the 2nd & 3rd respondents with reference to the cases of Dalfam Nig. Ltd. v. Okaku Int’l Ltd., Mobil Producing Nig. Unltd v. Monokpo and Owner of the M.V. Arabella v. N.A.I.C. should be discountenanced a s their facts were misconceived. In conclusion, he submitted that the authorities cited by the 2nd & 3rd respondents having not been able to support their submission nor answer the Appellant’s arguments as canvassed in his brief of argument, should be discountenanced. He urges the Court of Appeal to grant the reliefs sought by the Appellant in the Appellant’s Brief of Argument.
I have painstakingly studied the record of appeal cum the processes filed by learned counsel for the parties in this appeal. I will now proceed to determine the appeal on the sole issue formulated by the Appellant in his brief of argument.
The Appellant’s sole issue had earlier been reproduced at page – of this judgment. It is therefore not necessary reproducing same. I have examined the arguments of learned counsel for the parties on this issue and their positions on the various judicial authorities they respectively relied upon.
The case before this court is the determination of the motion to be heard first out of the two motions pending before the lower court in Suit No. 0/121/96. The resolution of this court in this regard answers or settles the contending issue in this appeal.
It is on record that the parties duly filed and exchanged their pleadings at the lower court. The appellant’s original statement of claim was filed on 4/6/96 and later amended on 25/7/97. These processes were duly served on the respondents which enabled them (the respondents to also file their amended statement of defence and further amendments of statement of defence. The appellant later before the commencement of hearing filed and served the respondent his motion on notice dated 20/10/2008 and filed on 21/10/2008 seeking for leave of the lower court to amend his statement of claim. The respondents never reacted to the appellant’s motion until five months later when on 13/3/2009 the 2nd & 3rd respondents filed a motion on notice seeking for an Order….. (earlier reproduced in this judgment).
The purpose of having a court is to administer justice. The dream of every plaintiff who goes to court for redress is to meet justice. However it does not imply that whoever goes to court to seek relief over a cause of action must win the case.
I have considered the whole circumstances of this case. I am not unmindful of the desperate quest of the defendants’ counsel to strike out the appellant’s suit over a mere technical error or omission that has been discovered by the appellant which he (the appellant) timeously sought to regularize by his motion filed on 21/10/2008. The zeal of the defendants could have been seen with eagle jurisprudential eyes if they had, from the period when the appellant filed his statement of claim to the date of filing his motion on to regularize the defect, filed a notice of Preliminary Objection to the competence of the Suit based on their findings. If they had done that, the suit would have slept in natural death. It seems to me that the defendants only came to be aware of the defect on the appellant’s pleadings the moment they were served with the motion on notice to amend or regularize the defect.
Interlocutory applications and proceedings are but a handmaid and aid to enable the court to reach the ultimate goal of doing substantial justice between the parties in the issues in litigation between them. I cannot agree with the opinion of the learned trial judge that the proper way to do justice in the instant suit was to resolve to take the 2nd & 3rd respondent’s motion of 13/3/2009 seeking to strike out the suit first before taking the appellant’s motion of 21/10/2008 seeking to regularize a defect on the face of an originating process earlier filed in the court below. It would have ordinarily been fair in the course of justice, equity and positive reasoning to hear and determine the appellant’s motion of 21/10/2008 seeking to amend a defect before taking the 2nd & 3rd respondents’ motion 13/3/2009 which came five months later, seeking to strike out the Suit.
It would have been gentlemanly on the part of the defendants to have withdrawn their motion of 13/3/2009 in open court on 14/5/2009 pursuant to the appellant’s motion of 21/10/2008 as such regularization couldn’t have put an end to the instant litigation.
In the consideration of the facts of this case and the relevant case law authorities well consulted, I hold that where there are two applications before the court – one to dismiss the case on ground of defect and the other seeking to regularize the defect, the application seeking to regularize should be heard and determined in priority over the one seeking to destroy the suit. This is based on the interest of justice and good sense. See A.G. Federation v. Fufunwa Onikoyi (2006) 18 NWLR (part 1010) page 51 at page 59 ratio 7; Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 272) 652 paras B to C, BCE Consulting Eng. v. NNPC (2004) 3 NWLR (Pt. 859) 1 at page 72 and Ani v. Nra (1996) 4 NWLR (Pt. 440) page 101 at 120.
The Supreme Court of Nigeria, per NNAEMEKA-AGU on attitude of court to technicalities in the case of Consortium M.C v. NEPA (1992) 6 NWLR (Pt. 246) 132 at 137 ratio 6 held inter alia:
“I must reiterate the fact that our courts have deliberately shifted away from the narrow technical approach to justice which charaderized some earlier decisions of courts on the matter. Instead, it now pursues the course of substantial justice”.
The Supreme Court jurist went further to state at page 142 paras G-H:
“To hold that learned counsel for the appellant was right in his contention will tantamount to sanctioning injustice through the short arm of technicality. That is not our current aim in the administration of justice”.
In the light of the foregoing analysis, I find merit in this appeal. The appeal therefore succeeds and it is hereby allowed. The Ruling of the High Court of Justice, Anambra State sitting at Onitsha, delivered on 23rd July, 2009 by Anulude, J. in Suit No. 0/121/96 is hereby set aside. It is hereby ordered that the appellant’s Motion on Notice dated 20/10/2008 and filed on 21/10/2008 be heard and determined before further proceedings in Suit No. 0/121/96.
N30,000.00 costs to the appellant.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, ABUBAKAR JEGA ABDUL-KADIR, J.C.A. who prepared the lead judgment in this appeal and delivered same afforded me opportunity of reading the judgment before its delivery. I am convinced that the issues in the appeal have been well considered and I agree that the appeal has merit. I allow the appeal and abide by the consequential orders in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR, JCA. I agree with the reasoning and conclusions therein. I also hold that this appeal succeeds and is allowed. The ruling of the High court of Anambra State sitting at Onitsha in suit No. 0/121/96 delivered on 23rd May 2009 is hereby set aside. I make no order as to costs.
Appearances
Chief O. Ugolo, SAN, with Chief S. I. ObidinawaFor Appellant
AND
Mr. T. U. Oguji with Mr. C. C. Okeke – 1st Respondent
Mr. O. Araka with Miss R. Ilukwu – 2nd and 3rd RespondentsFor Respondent
