MAERSK NIGERIA LIMITED v. MR. ANTHONY OGUEJIOFOR
(2018)LCN/11907(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/OW/201/2013
RATIO
COURT AND PROCEDURE: TO FILE COUNTER-AFFIDAVIT
“I have earlier stated that there is no time limit in our Rules for the filing of Counter affidavit, and so a party is not expected ordinarily in law to seek extension of time or the leave of this Court (or of the Lower) to file a Counter affidavit to deny a given affidavit standing against him. To that extent Appellant’s argument about filing a Counter affidavit, after 6 months, without the leave of Court was/is strange in my opinion. In saying this, I have also considered the Order 8 of the Abia State High Court (Civil Procedure) Rules, 2009, which makes provisions for interlocutory applications, where by the Rules authorize that for any application to be made, the same (motion) shall be made, and served with supporting affidavit on the defendant (where it is a Motion on Notice). And:
”Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the motion for the hearing.” See Order 8 Rule 17 of the Abia State High Court Civil Procedure Rules 2009.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MAERSK NIGERIA LIMITED Appellant(s)
AND
MR. ANTHONY OGUEJIOFOR
(Trading under the Name and style of Aiphen Enterprises). Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of Abia State High Court in Suit No. HOS/95/2008, delivered on 1st November, 2012 by Hon. Justice N.C. Otti, wherein the Learned Trial Court dismissed the challenge to its jurisdiction to entertain the Suit, raised by the Defendant, now Appellant.
At the trial Court, the Respondent (who was the Claimant at the said trial Court) had sought the following reliefs in the Writ of Summons, issued on 11/8/2008, but filed on 27/7/2008:
(1) The sum of N2, 212,318.31 (Two Million Two Hundred and Twelve Thousand Three Hundred and Eighteen Naira, Thirty One Kobo), being the value of the Plaintiff’s 65 Bales of Sisal Fibre, discovered at the Plaintiff?s warehouse at No. 260 Aba – Owerri Road, Aba in the Osisioma – Ngwa LGA, Abia State, to be (sic) irretrievably damaged as a result of the Defendant’s defective containers in which the Plaintiff?s said goods were shipped.
(2) The sum of N5,000,000.00 (Five Million Naira) only, being special and general damages suffered by the Plaintiff on account of the Defendant?s negligence towards the Plaintiff?s goods.
(3) 10% interest on the judgment sum from the date of judgment until the judgment debt is fully liquidated.
Upon the service of the Writ of Summons and the Statement of Claim on the Defendant, the Defendant entered a conditional appearance and filed a preliminary objection against the Suit, on 25/8/2008, challenging the jurisdiction of the Court to hear the Suit, on the ground that the action arose out of contract for carriage of goods by sea, which is within the exclusive admiralty jurisdiction of the Federal High Court. The said objection was overruled and dismissed on 5/8/2009.
After the above ruling on 5/8/2009, the Defendant filed another preliminary objection on 20/9/11, challenging the competence of the Suit, on the grounds of non-compliance with the mandatory provisions for the commencement of the action as provided by Order 5 Rule 10(b) of the Abia State High Court (Civil Procedure) Rules, 2001 (the frontloading procedure). The Respondent filed a Counter affidavit on 20/3/2012 to the preliminary objection, after about 6 months of being served (and Appellant complained that the Respondent did not obtain the leave of Court to file the Counter affidavit). Meanwhile, by 25/03/2010, the Plaintiff (Respondent) had filed the list of documents to be relied on at the trial and the witnesses depositions on oath (see pages 20 – 42 of the Records of Appeal), and same were served on Appellant on 21/3/2012, who quarreled that Plaintiff did not obtain the leave of Court to file the process.
Appellant’s 2nd preliminary objection was dismissed, and this appeal is against that decision, made on 1/11/2012. Appellant filed Notice of Appeal on 15/11/2012 and disclosed four grounds of Appeal: pages 118 to 121 of the Records of Appeal. Appellant filed its Brief of Argument on 10/6/2014, upon regularizing the Records of Appeal on 27/5/14. Three (3) Issues were identified for the determination of the Appeal, namely:
(1) Whether the Abia State High Court is the proper venue for commencement of this Suit founded on negligence in view of the uncertainty of the place of accrual of the cause of action.
(2) Whether both the list of documents to be relied on and the Counter affidavit, with written address filed by the Plaintiff, without the leave of Court, were competent processes for Court to place reliance on in arriving at its decision of 1st day of November, 2012.
(3) Whether the Suit, as it were, was properly constituted having commenced without due process of law.
Appellant did not tie any of the Issues to the grounds of Appeal, which (without their particulars), were:
(1) The Learned Trial Judge erred in law when she held that the Suit which is founded on negligence was properly commenced in Osisioma Division of the High Court, Abia State.
(2) The Trial Judge erred in law and misdirected herself when she held that the defendant was wrong to have relied on the Abia State High Court (Civil Procedure) Rules, 2001, which has been repealed by the current Abia State High Court (Civil Procedure) Rules, 2009, in challenging the procedural defects in the commencement of the Suit.
(3) The Trial Judge erred in law when in reaching her decision in respect of Defendants preliminary objection, she relied on the Counter affidavit filed by the Claimant along with a written address on the 20/3/2012, without first seeking and obtaining the leave of Court, same having been filed beyond the period prescribed by the rules of Court.
(4) The decision is not in conformity with the law on the issues raised before the trial Court.
As a matter of practice (and this has been repeatedly stated by this Court and the apex Court, at every opportunity), Appellant has a duty to relate the Issue(s) for the determination of an appeal to the ground(s) of the appeal, and to show or demonstrate how the same is done in the Brief of Argument, filed. See Accord Ventures Ltd & Ors Vs NDIC (2005) LPELR ? 11329 CA; Ardo Vs INEC & Ors (2017) LPELR ? 41919 SC. In Jev & Anor. Vs Iyortyom & Ors (2014) LPELR ? 23000 SC, the Supreme Court held:
”The law is no doubt settled that any issue or issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of Appeal or a combination of competent and incompetent grounds of appeal are liable to be struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination.
See Akpan Vs Bob (2010) 17 NWLR (Pt. 1223) 421; Amadi Vs Orisakwe (1997) 7 NWLR (Pt. 511) 161; Fagunwa & Anor Vs Adibi & Ors (2004) 7 SCNJ 322. Per Okoro JSC. See also Nwaigwe & Anor Vs Amaechi & Ors (2017) LPELR 43080 CA; Onwukwe Vs Ekejiuba (2017) LPELR 42417 CA.
Though Appellant failed to relate the issues to the grounds of the appeal, a quick glance over the four (4) grounds and the three (3) Issues would show that:
(i) The ground one and Issue one of the appeal have nothing to do with this appeal, as they relate to the earlier ruling of the trial Court dismissing the 1st preliminary objection that the High Court of the State could not entertain the case being admiralty matter reserved for the Federal High Court. That decision of 5/8/2009 was not appealed against, and is not part of this appeal. Of course, Appellant had tried to raise issue of venue, again with regards to where Appellant does business. The said ground one and Issue one are, accordingly, dismissed, being abuse of the process.
(ii) The grounds 2 to 4 appear to relate to the Ruling of 1/11/2012 appealed against which refused to strike out Respondent’s Suit, on the alleged ground that he did not comply with the provisions, relating to frontloading of the process, and the associated arguments, that the Respondent filed Counter affidavit and frontloaded processes late, without obtaining the leave of Court. The Issue 2 would therefore appear to be accommodated in or flow from the said grounds 2, 3 and 4 of the Appeal.
Actually, it is not the appellate Court that should perform the duty of marrying the grounds of Appeal to the issue(s) for determination of appeal for the Appellant, but the interest of justice, sometimes makes the Court to go that extra mile, to ensure the hearing of the appeal on the merits. See the case of Agodi Vs Anyanwu & Ors (2014) LPELR 23746 CA; Felix Ejiogu Vs Christian A. Nwauzoagba: CA/PH/215/1999, delivered on 28/5/18. See also the Supreme Court decision in the case of Diamond Bank Plc Vs HRH Eze (Dr.) Peter Opara & Ors (2018) LPELR 43907 SC.
I shall therefore consider this Appeal on the 2nd Issue by Appellant, but modify it, thus:
Whether the trial Court was right to dismiss Appellant’s 2nd objection, holding that the Suit was competent and the processes (Counter affidavit and written address) validly filed, without leave of Court?
Appellant’s Preliminary Objection filed on 20/9/2009 had sought:
An order striking out this Suit for being incompetent? on the grounds that:
(1) The Plaintiff failed to frontload the documents pleaded and sought to be relied upon at the trial, and thereby failed to comply with the mandatory condition precedence (sic) for commencement of this action, as provided under Order 5 Rule 10(b) of the Abia State High Court (Civil Procedure) Rules 2001, under which this action was commenced which is impari materia with Order 2 Rule 4(1)(d) of the Abia State High Court (Civil Procedure) Rules, 2009.
(2) Abia State is not the proper place for the commencement of this Suit which is founded in negligence, as the Defendant?s Head Office is in Lagos, which is beyond the contemplation of Order 10 Rule 4(1) of the Abia State High Court (Civil Procedure) Rules (2001) under which the Suit was commenced which is impari materia with Order 6 Rule 4(1) of the Abia State High Court (Civil Procedure) Rules, 2009.?
The Respondent had filed a Counter affidavit to oppose the objection. And after hearing the parties, the Learned Trial Court had held:
”In any case, just as the Plaintiff contended, this Court has the jurisdiction to entertain this Suit, because the action, which accrued within this Judicial Division, imbued it with the necessary competence. I agree with Learned Counsel for the Plaintiff that the cause of complaint in this action or rather the cause of action accrued upon the discovery of the damaged goods at the warehouse of the Plaintiff here in Aba, which is one of the conditions under which an action relating to negligence, as provided for in Order 6 Rule 4(1) could be commenced.
The fact of the defendant’s place of residence or where they carry on business is one of the conditions to be considered in bringing such an action, as this present Suit does not impinge on the validity of this Suit being commenced in this Judicial Division, seeing that the cause of action arose within this Court’s jurisdiction?
Given the totality of the arguments of Defendants on this issue, it is obvious that the Defendants’ application is very misconceived. The fact (sic) they did not advert their minds to the issue of this Court’s jurisdiction, having been determined earlier, shows that the Defendants are really forum shopping and seeking to short circuit this action by raising unnecessary jurisdictional attack on this Court.
The Defendants are enjoined to file their processes for the defence of this matter and allow this case to be heard on the merit. All the arguments advanced in this interlocutory application should be used for the case proper in the course of defending the Suit. It is the view of this Court that the Plaintiff met the requirement for commencing this action under the extant Rules of Court and this Court has both territorial and geographical jurisdiction to hear and determine this Suit, having been instituted in the proper venue according to the Rules of Court. See pages 116 – 117 of the Records.
Appellant never appealed against the above findings and decision of the trial Court. Rather, the entire argument on the issue was a rehash of the arguments earlier made at the trial Court and which the trial Court overruled.
On page 10 (paragraph) of the Brief Appellant’s Counsel argued:
”Notwithstanding the Defendant’s contention on the competence or otherwise of the said processes filed way longtime, without any application for extension of time explaining away the undue delay in filing these processes out of time, the trial Court went ahead in its ruling on the 1st day of November, 2012 to hold that the said processes were competent before the Court and also went ahead to place reliance on the said incompetent Counter affidavit and written address filed far away six (6) months, out of time, without order of Court to hold, at page 115 paragraph 3 lines 4 ? 6 of the Records, that she was adopting the arguments of the Learned Counsel for the Plaintiff on all the four issues he proffered for determination.”
The trial Court had said, on that page 115 of the Records (paragraph 3):
”I have gone through the processes in respect of this application, especially the written addresses of Counsel, and I wish to state that the Plaintiff has, in very erudite and detailed manner, addressed the issues raised in this action.
I hereby adopt the arguments of Learned Counsel for the Plaintiff on all the four issues he proffered for determination. Given the grounds upon which the Defendants are asking this Court to strike out this Suit, it could be easily seen that Defendants have chosen to rely on an obsolete law, duly repealed by the Current 2009 Rules governing this Courts Civil Procedure for their application. But the case of Owata Vs Anyigor (Supra) makes it clear that the rule governing practice and procedure is the rule in force at the time of trial, or an application is made.”
Appellant was expected to raise arguments to fault that decision of the trial Court, to succeed, and not to rely on the same flawed arguments it advanced at the Lower Court.
The Respondent had argued at the Lower Court, and rightly in my view, that though the Suit was commenced under the 2001 Rules of the High Court, the same had been abrogated by the 2009 Rules of the Court, and that by the new Rules, the provisions of Order 3 Rule 3(1) and (2) shall apply to all part heard matters, and its relevant provisions are to apply to every further step to be taken in respect of such causes and matters.
Order 3 Rule 1(1) and (2) of the Abia State High Court (Civil Procedure) Rules 2009, says:
(1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content, or in any other respect, the failure may be treated as an irregularity, and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The Court may, on the ground that there has been such failure as mentioned in paragraph (1), and on such terms as to cost or otherwise, as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these rules to allow such amendments (if any) dealing with the proceedings, generally, as it thinks fit.?
Of course, by that wide saving clause in the Order 3 Rule 1 of the 2009 Rules of the High Court, the Respondent’s subsequent front loading processes were properly before the Court, the trial Court having accepted the same and held them to be properly originated for the commencement of the Suit.
Appellant had made a heavy weather about the issue of not obtaining the leave of Court to file the Counter affidavit, alleging that the Respondent had failed to file the same within time. I have tried to locate the law which Appellant relied upon to make such outlandish submission, without success. I am yet to come by a law that stipulates a time frame for the filing of a Counter affidavit in a cause or matter, either by this Court, or the Lower Court to suggest the need to file an application for extension of time to file Counter affidavit!
I am rather aware that a process with an affidavit, served on the opponent within 48 hours (2 days), remains potent and can be moved, used and relied upon, whether or not the same is reacted to or countered by the opponent, once he has been served within time. Thus, where a party fails to file a Counter affidavit to deny an averment in an affidavit, he is deemed to have admitted the said averment, until he denies the same and he has all the time in the world to deny it, while the averment is not used yet. That does not mean that the denial must come within 48 hours of being served with the affidavit. CPC VS Lado & Ors (2011) LPELR 3997 CA; Ogunleye Vs Aina (2012) LPELR Pt.7877 CA.
Order 6 Rule 9 of this Court’s Rules, 2016, states that:
”The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step or action under Order 16.? (Order 16 relates to Mediation Programme).
I have earlier stated that there is no time limit in our Rules for the filing of Counter affidavit, and so a party is not expected ordinarily in law to seek extension of time or the leave of this Court (or of the Lower) to file a Counter affidavit to deny a given affidavit standing against him. To that extent Appellant’s argument about filing a Counter affidavit, after 6 months, without the leave of Court was/is strange in my opinion.
In saying this, I have also considered the Order 8 of the Abia State High Court (Civil Procedure) Rules, 2009, which makes provisions for interlocutory applications, where by the Rules authorize that for any application to be made, the same (motion) shall be made, and served with supporting affidavit on the defendant (where it is a Motion on Notice). And:
”Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the motion for the hearing.” See Order 8 Rule 17 of the Abia State High Court Civil Procedure Rules 2009.
The above provision locates a Respondent’s right to always insist on his right of 2 clear days (or 48 hours) notice of any application raised against him, to enable him react to same by filing a Counter affidavit, if necessary. Of course, that does not limit the time of a respondent to file a Counter affidavit which he can do at any time, after being served with the application in contention.
I cannot see any merit in this appeal. Rather, Appellant appears to have really employed every tactic to frustrate the Suit, taking preliminary objections, piece meal to achieve that objective in a manner that tantamount to abuse of the process.
I dismiss the appeal with cost of Fifty Thousand Naira (N50,000.00) against the Appellant in favor of the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
Appearances:
PATRICK AKUBULE; ESQ.For Appellant(s)
Not Represented For Respondent(s)
