HYUNDAI HEAVY INDUSTRIES COMPANY NIGERIA LIMITED v. SAMPSON NNASIA & ORS
(2019)LCN/12619(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/PH/118/2013
RATIO
ACTION: WHERE AN ORIGINATING SUMMONS IS DEFECTIVE
“The window open to the claimants at that point was to go back to the registry of the lower Court and apply for a fresh writ of summons as opposed to seeking to amend a non-existent Writ of Summons as if something put on nothing can stand. A Writ of Summons being an originating process if found to be defective remains defective ab initio and for all purpose and therefore not subject to amendment.
At the end of the day and from all that I have said above, it is without doubt that raising and determining the issue of jurisdiction once detected, helps to save the precious time of the Court and that of the litigants. All the same it is better raised late than never.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
APPEAL: WHETHER THE GROUND OF APPEAL IS FACT OR LAW
“There are no hard and fast rules as to the order of hearing motions. It all depends on the nature of the applications. Where there are two applications one seeking to discharge, strike out and or dismiss a process and there is a second one seeking a remedial action that will sustain the process, the practice has always been for the Court to hear the latter application irrespective of the fact that it was not first in time. “In order to determine whether a ground of appeal is a ground of law or of fact, the particulars of appeal ought to be examined so as to decipher the nature of question the ground raised is complaining about. Thus, where the ground of appeal reveals a misunderstanding or a misapplication of the law by the trial Court to the proven or admitted facts, it would be a question of law. However, where it entails questioning or evaluation of facts before the application of the law, it would amount to a question of mixed law and fact. See also Ogbechie vs. Onochie (1986) 2 NWLR Pt. 23, pg. 484.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
HYUNDAI HEAVY INDUSTRIES CO. NIG. LTD Appellant(s)
AND
1. SAMPSON NNASIA
2. EMMANUEL DICK
3. KEN EDWARD Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal brought against the decision of the High Court of Rivers State (hereinafter the trial/lower Court), per Hon. Justice B. G. Diepiri, J., delivered on 31st January, 2013 in suit No. PHC/1875/2007 wherein the appellant’s Motion on Notice filed 3rd October, 2012 and its Notice of Preliminary Objection filed 1st December, 2011 were both dismissed by the Court, while the respondent?s Motion for Extension of time to file writ of summons, statement of claim and accompanying processes, was granted.
BRIEF STATEMENT OF FACTS
The respondents who were the claimants at the trial Court commenced the suit that gave rise to this appeal against the appellant and Shell Petroleum Development Company of Nigeria Limited (SPDC) as the 1st and 2nd defendants respectively, vide a writ of summons issued 26th November, 2007. Being no longer interested to proceed against SPDC, the respondents filed a Notice of Discontinuance on 27th May, 2007, consequent upon which the name Shell Petroleum Development Company Limited (SPDC) was struck out of the suit. It then became necessary for the respondents to amend their originating processes to reflect the names of the extant parties who are now the appellant and the respondents before us. In furtherance of this, the respondents filed their Amended Writ of Summons and Amended Statement of Claim which processes were signed by an undisclosed proxy on 14th December, 2009. Thereupon, the appellant brought a Notice of Preliminary Objection urging the lower Court to strike out the suit for want of jurisdiction.
The respondents in their reaction to the irregularity proceeded to file fresh Amended Writ of Summons and Statement of Claim on 20th March, 2012 which processes were accompanied by a Motion on Notice seeking an extension of time within which to file and serve their Amended Writ of Summons and an order deeming same and other ancillary processes as properly filed and served. (See pages 149 – 160 of the record of appeal). The learned trial Judge on 31st January, 2013 decided to hear both the preliminary objection of the defendant and the claimants’ motion wherein he was asking for extension of time. Consequent upon that, the learned counsel for the claimants applied to withdraw their irregular writ of summons and other related processes which were signed by proxy. With no opposition from the defendant’s counsel (S. M. Tsado, Esq.), the learned trial Judge struck out the irregular writ of summons dated and filed 14th December, 2009 as well as the accompanying statement of claim. (See pages 184 of the record of appeal).
After adoption of the written addresses by the respective counsel in respect of the Notice of Preliminary Objection dated 30th November, 2011 and filed 1st December, 2011 and the Motion dated and filed 3rd October, 2012 on the one hand, and the one filed 20th March, 2012 wherein the claimant was seeking extension of time; the learned trial Judge gave a bench ruling and dismissed the defendant/appellant’s Motion on Notice dated 3rd October, 2012 while the Notice of Preliminary Objection filed 1st December, 2012 was struck out. (See pages 185 – 187 of the record of appeal). The learned trial Judge proceeded at the same time to extend time for the claimants/respondents to file and also deemed their Amended Writ of Summons and the Amended Statement of Claim as properly filed and served on same 31st January, 2013 and which ruling is the genesis of this appeal.
Aggrieved by the ruling, the defendant/appellant vide their Notice of Appeal dated and filed 1st February, 2013.
Parties in compliance with the rules of this Court filed and served their respective briefs of argument. The appellant’s brief of argument dated and filed 18th April, 2013 and the appellant’s reply brief dated and filed 11th April, 2017 and deemed properly filed and served on 1st November, 2018 were both settled by Tonye Krukrubo, Esq. The respondent’s brief of argument dated and filed 16th March, 2017 but deemed properly filed and served on 21st March, 2017, was settled by S. S. West, Esq.
The appellant from the 4 (four) grounds of appeal distilled the following 4 (four) issues for determination of the appeal:
1. Whether the trial Court was right when it entertained and determined the respondent’s application to withdraw their Amended Writ of Summons and Amended Statement of Claim filed on December 14, 2009 before determining the issue of jurisdiction raised in the appellant?s Notice of Preliminary Objection filed on December, 2011. (Distilled from Ground 1).
2. Whether the trial Court was right in law to have heard and determined the appellant?s Notice of Preliminary Objection filed on December 1, 2011 and the respondents? Motion for extension of time to file and serve their Writ of Summons and Statement of Claim filed on March 20, 2012 after the Amended Writ of Summons and Amended Statement of Claim filed on December 14, 2009 (being the extant originating processes giving it jurisdiction) were withdrawn and struck out. (Distilled from Ground 2).
3. Whether the trial Court was right to have extended time for the respondents to file fresh Amended Writ of Summons and Amended Statement of Claim in order to cure the defect in the Amended Writ of Summons and Amended Statement of Claim filed on December 14, 2009. (Distilled from Ground 3).
4. Whether the respondents’ Amended Writ of Summons and Amended Statement of Claim filed on December 14, 2009 which were signed by an unidentified or unknown person for and on behalf of M. C. Wilcox Esq. ought not to have been struck out for being invalid and incompetent. (Distilled from Ground 4).
As rightly observed by the learned counsel for the respondents, the foregoing issues posited by the appellant is indeed a prolixity and proliferation of issues. Nevertheless the respondents adopted and argued them accordingly.
Before I wade into the issues as raised by the appellant, if need be, I deem it unavoidable to deal first with the preliminary objection raised by the respondents at page 4, para. 4.0 to page 6, para. 4.6 of their respondents? brief of argument.
PRELIMINARY OBJECTION
In arguing this issue, the learned counsel for the respondents submitted that the appellant did not obtain the leave of the lower Court to appeal. Learned counsel submitted that the appellant’s grounds of appeal raised a question of fact or mixed law and fact and so the appellant required the leave of the court before filing the appeal. See Eyo vs. Out (2010) 1 WRN 107, 129, para. 20 ? 45; Ikweki vs. Ebele (2005) 127 LRCN, pg. 1271, para. K – P; Nwadike vs. Ibekwe (1987) 4 NWLR Pt. 67, pg. 718; and Armaford Nig. Ltd. vs. NDIC (2014) 27 WRN 176. Respondents contended that the appeal having been premised on the direction of the learned trial Judge is incompetent because it was not premised on the existence of an appealable decision within the meaning of the 1999 Constitution. They further submitted that no arguments were advanced before the directive was made and that the counsel just applied to withdraw the offending writ without opposition. See pages 184 ? 187 of the record of appeal. Respondents urged on us to dismiss this appeal for being incompetent.
The appellant in its reply to the preliminary objection and which reply can be gleaned at pages 3 – 7 of its reply brief, while relying on the authorities of Section 241 of the 1999 Constitution (as amended); Oluwole vs. L.S.D.P.C. (1983) SC. 1; and Conoil Plc. vs. I.T.F. Gov. Council (2015) 9 NWLR Pt. 1464, pg. 399 at 416, paras. C ? E; Ononuju vs. A.G., Anambra State (2009) 10 NWLR Pt. 1148, pg. 182; and Omokhodion (2011) 15 NWLR Pt. 1269, pg. 145, submitted that a look at the grounds of the appeal will show that they complain about wrong application of law by the trial Court to settled facts. Appellant argued that the grounds of appeal did not bother on the discretion of the trial Court, neither did it relate to facts being in dispute but habituates on question of law alone and particularly challenged the jurisdiction of the Court below. Learned counsel for the appellant also canvassed that grounds 2, 3 and 4 in particular challenged the decision of the trial Court. He submitted finally that the respondents after taking steps to file their respondents? brief of argument and other sundry processes upon becoming aware through their counsel of the pendency of the appeal, should not be heard to complain about the manner of service of the Notice of Appeal on them. Appellant then urged on us to discountenance all the arguments canvassed by the respondents in their Preliminary Objection as they are lacking in merit.
RESOLUTION OF THE PRELIMINARY OBJECTION
It is trite that this appeal is predicated on the ruling of the lower Court in respect of the respondents’ motion wherein they were seeking extension of time for them to file their Amended Writ of Summons and ancillary processes on the one part and the appellant’s Notice of Preliminary Objection, which ruling was delivered 31st January, 2013. From the said ruling there is no doubt that the learned trial Judge applied his discretion in giving his decision one way or the other. For example, he reasoned in part thus:
There are no hard and fast rules as to the order of hearing motions. It all depends on the nature of the applications. Where there are two applications one seeking to discharge, strike out and or dismiss a process and there is a second one seeking a remedial action that will sustain the process, the practice has always been for the Court to hear the latter application irrespective of the fact that it was not first in time.
In order to determine whether a ground of appeal is a ground of law or of fact, the particulars of appeal ought to be examined so as to decipher the nature of question the ground raised is complaining about. Thus, where the ground of appeal reveals a misunderstanding or a misapplication of the law by the trial Court to the proven or admitted facts, it would be a question of law. However, where it entails questioning or evaluation of facts before the application of the law, it would amount to a question of mixed law and fact. See also Ogbechie vs. Onochie (1986) 2 NWLR Pt. 23, pg. 484.
In the grounds of the Notice of Appeal, the appellant?s grouse are as set out hereunder:
Ground Number One
The lower Court erred in law by refusing to determine first the issue of its jurisdiction put forward by the appellant in its Notice of Preliminary Objection filed on December 1, 2011.
Particulars of error
1. The lower Court ignored the Notice of Preliminary Objection filed by the appellant on December 1, 2011 challenging its jurisdiction and instead entertained the application for withdrawal of the respondents? Amended Writ of Summons and accompanying processes filed on December 14, 2009 with a view to assisting the respondents save the suit.
2. By the decision in Fawehinmi vs. Abacha (1996) 9 NWLR (Pt. 475) 710 at 734, where the competence of a Court to deal with a matter is put in issue, that becomes the only issue the Court has jurisdiction to entertain and the Court must deal with question of its jurisdiction first before considering other matters including the substantive suit.
Ground Number Two
The lower Court erred in law when it subsequently entertained applications filed by the parties after the Amended Writ of Summons and accompanying processes filed on December 14, 2009 were withdrawn and struck out upon the application of the Claimant’s counsel.
Particulars of error
1. The lower Court failed and or neglected to decline jurisdiction and strike out the suit after the current Amended Writ of Summons and accompanying processes filed on December 14, 2009 were withdrawn and struck.
2. There was no competent originating process before the trial Court upon which the jurisdiction of the trial was hinged to hear and decide the Notice of Preliminary Objection and Motion for Extension of Time to Amended Writ of Summons and Accompanying Processes filed by the parties on December 1, 2011 and March 20, 2012.
Ground Number Three
The lower Court erred in law and thereby occasioned a miscarriage of justice when it made an order extending time for the Respondents’ to file an Amended Writ of Summons and accompany processes.
Particular of Error
1. The lower Court was in error to have allowed the Respondents an extension of time to file new Writ of Summons and accompany processes for the purpose of substituting incompetent processes (i.e Amended Writ of Summons and Accompanying Processes filed on December 14, 2008) with another one filed on March 20, 2012.
2. The lower Court cannot in law extend time for the filing of a process already filed by a party for a period of over two years.
Ground Number Four
The lower Court erred in law by refusing and or neglecting to strike Suit No. PHC/187/2007 upon becoming aware that the Amended Writ of Summons and accompanying processes filed by the Claimants on December 14, 2009 were signed to proxy.
Particular of Error
1. The lower Court failed to hold that the Amended Writ of Summons and accompany processes filed on December 14, 2009 were incurably bad in accordance with the decision of the Supreme Court in the case of SLB Consortium Limited v. NNPC (2011) 9 NWLR (1252) 317 Paras. G-H.
2. By virtue of the decision of this Honourable Court in Onward Enterprises Limited v. Olam International Limited (2010) All FWLR (Pt. 531) P. 1503 at 1514 Paras. A-E, a Court process signed by an unidentified or unknown person is incompetent and must be struck out.
The foregoing particulars obviously contain verifiable facts as laid before the learned trial court and the application or otherwise of the law to those facts. It follows in my view that the appellant?s Notice of Appeal is one of mixed law and facts, consequent upon which it needed to seek and obtain the leave of the Court pursuant to Section 14 of the Court of Appeal Acts, 2004 which stipulates thus:
14. (1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal?… [Emphasis mine].
‘Much as the learned trial Judge was in the circumstances of the applications placed before him, expected to apply his discretion in reaching a decision one way or the other, yet the said discretion was to be exercised judiciously, judicially and within the ambit of the law. In con therefore, the learned trial Judge in exercise of his discretion was to ponder and consider points of law and fact as placed before him and by extension his application or misapplication as the case may be of the law on the facts. The appellant in that vein ought to seek and obtain the leave of Court in order to bring its appeal against the decision of the lower Court.
Albeit, much as the appellant may not have sought and obtained the leave of the Court before filing its Notice of Appeal, I cannot however, shut my eyes to what transpired at the lower Court, more so as the jurisdiction of the learned trial Judge was put on the line by the appellant vide its Notice of Preliminary Objection dated 30th November, 2011 and filed 1st December, 2011. By the said preliminary objection, the appellant prayed for a striking out of the claimants/respondents’ suit No. PHC/1875/2007 on the grounds that:
1. The Amended Writ of Summons commencing this action and Claimants’ Amended Statement of Claim filed on 14/12/09 were signed by proxy i.e. by an unidentified or an unknown person for and on behalf of M. C. Wilcox, Esq. and therefore incurably defective and incompetent.
2. By virtue of the Court of Appeal’s decision in ONWARD ENTERPRISES LIMITED vs. OLAM INTERNATIONNAL LIMITED (2010) All FWLR (Pt. 531) P. 1503, 1514, paras. A-E, a Court process signed by an unidentified or unknown person is incompetent and must be struck out. [See 143 – 148 of the record of appeal].
On the other part, the claimants (respondents herein) on the 20th March, 2012 brought their own Motion on Notice praying the lower court as follows:
1. AN ORDER extending time within which the applicants can file their Amended Writ of Summons and Other ancillary processes already filed and served.
2. AN ORDER deeming the Writ of Summons and other ancillary processes in this suit as being properly filed and served. [See pages 149 – 151 of the record of appeal).
Prior to the hearing of the aforementioned applications, the learned counsel for the claimants/respondents applied to withdraw their defective writ of summons filed 14 / 12 / 09 together with the statement of claim. With the consent of the learned counsel for the defendant/appellant, the learned trial Judge struck out the defective Writ of Summons as well as the Amended Statement of Claim. (See page 184 of the record of appeal). Having so struck out the said Writ of Summons, the learned trial Judge felt the need to also strike out the defendant/appellant’s Notice of Preliminary Objection reason being that the offensive Writ of Summons which it sought to attack had been withdrawn and struck out.
With the striking out of the offensive and fundamentally defective Writ of Summons dated and filed 14th December, 2009, it followed at that juncture that suit No. PHC/1875/2007, wrongly initiated by the said Writ of Summons had automatically abated and was no longer in existence. This is to say that the striking out of the defective Writ of Summons brought to an end the action purportedly initiated by it as well as any other motion pending therein. Going further to determine the respondents’ pending motion was an exercise in futility given that the lower Court was no longer seised of the jurisdiction to do so. The window open to the claimants at that point was to go back to the registry of the lower Court and apply for a fresh writ of summons as opposed to seeking to amend a non-existent Writ of Summons as if something put on nothing can stand. A Writ of Summons being an originating process if found to be defective remains defective ab initio and for all purpose and therefore not subject to amendment.
At the end of the day and from all that I have said above, it is without doubt that raising and determining the issue of jurisdiction once detected, helps to save the precious time of the Court and that of the litigants. All the same it is better raised late than never.
Much as the blood in suit No. PHC/1875/2007 was drained from it at the withdrawal and striking out of the incurably defective originating process i.e. the Writ of Summons, the learned trial Judge ought to have followed it up with a striking out of the suit itself. Because he failed to do the needful, I shall, pursuant to the provisions of Section 15 of the Court of Appeal Act, 2004, strike out suit No. PHC/1875/2007 which I found dead on arrival and it is so struck out. Furthermore, because what has played out in this appeal borders on the jurisdiction of the learned trial Court to determine the action that led to this appeal, the need to seek the leave of Court before appealing has become otiose. Hence, this interlocutory appeal even though brought without the leave of Court, is substantially imbued with merit.
The appeal succeeds in the light of which the decision of the Hon. Justice B. G. Diepiri delivered 31st January, 2013 in suit No. PHC/1875/2007 is hereby set aside.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in draft the lead Judgment just delivered by my Learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA
I agree that the appeal succeeds, and I abide by all the consequential Orders.
Appearances:
Innocent Ekpen For Appellant(s)
M.C. Wilcox with him, Michael Richards and Arthur Miller For Respondent(s)
