MRS. ROSE MUOFUNANYA v. OLISA NWADIOGBU
(2013)LCN/6421(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of July, 2013
CA/E/17M/2009
RATIO
DETERMINING THE PRIMARY PURPOSE OF A PRELIMINARY OBJECTION
The primary purpose of a Preliminary Objection is to determine or terminate the proceedings in limine at the time it was raised. It therefore behooves the court to hear and determine it first before embarking on the hearing or consideration of the issues to which or in respect of which the objection was raised in order to avoid what might turn out to be an unnecessary exercise. My position to first determine the respondent’s preliminary objection represents the position of law on the practice and procedure of the courts in such a situation. See Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637, Okoi v. Ibiang (2002) 10 NWLR (Pt. 776) 455, Goji v. Ewete (2001) 15 NWLR (Pt. 736) 273, NNB Plc v. Imonikhe (2002) 5 NWLR (Pt. 760) 294; Nigerian Navy v. Garrick (2006) 4 NWLR (Pt. 969) 69 at P.89. PER ABUBAKAR JEGA ABDULKADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR 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
MRS. ROSE MUOFUNANYA
(Substituted by Order of Court made on 16th March 2009) Appellant(s)
AND
OLISA NWADIOGBU
(By his Attorney, Christiana Ozoemena Izuora (Mrs.)) Respondent(s)
ABUBAKAR JEGA ABDULKADIR, J.C.A. (Delivering the leading Judgment): This is an appeal against the interim judgment of the High Court of Anambra State holden at Onitsha delivered on the 7th day of November 2000 by late Honourable Justice Ernest Egbuna in Suit No. 0/37/98.
The plaintiff at the lower court, (now respondent in this appeal) by a writ of summons dated 2nd February, 1998 instituted the instant suit against the defendant (now appellant in this appeal). In his 13 paragraph Statement of Claim dated 14/6/99 and filed on 15/6/99, the plaintiff/respondent claimed against the defendant/appellant as follows:
“Perpetual Injunction restraining the defendant whether by himself or through his agents or privies or in any manner whatsoever from entering or remaining or trespassing on the land in dispute.
(ii) N2,000,000.00 (Two Million Naira) damages for trespass.
A Motion on Notice pursuant to Order 9 rule 42 (2) H.C.R. 1988 was brought under the inherent jurisdiction of the court by the plaintiff on 2/5/2000 praying the court for an order:-
“(a) entering judgment for the plaintiff in respect of his claim No. 13 (1) of the statement of claim on the face of that establishment of claim.
(b) setting the suit down for hearing on the plaintiff’s statement of claim to determine his entitlement to claim No. 13 (ii) of the statement of claim;
Following the default of the defendant in filing his statement of defence as ordered by the court and for such other order(s) as the court may deem fit to make in the circumstances. The motion is supported by 10 paragraph affidavit.
On 28/5/2000, the learned trial Judge in his judgment ordered that the defendant be restrained whether by himself or through his agents and privies or in any manner whatever from entering or trespassing on the land in dispute in this suit as set down on the plaintiff’s Plan No. AA/D22/99 dated 12/6/99 upon award of N400.00 in favour of the plaintiff. The learned trial Judge further adjourned the matter to 28/2/2001 for hearing of the plaintiff’s 2nd arm of the claim.
The defendant/appellant on 6/12/2000 filed 17 paragraph Statement of Defence and counter claim wherefore, he sought the following reliefs from the court:
“(i) A declaration that the defendant is the person legally entitled to a statutory right of occupancy in respect of the land delineated and verged Brown in Plan No. AC/LD/5/2000
(ii) PERPETUAL INJUNCTION restraining the plaintiff whether by himself or through his agents and or privies or in any manner whatsoever from entering or remaining or trespassing on the land in dispute.
(iii) N2,000,000.00 (Two Million Naira) damages for trespass.
On the same 6/12/2000, the defendant through his counsel filed a motion dated 5/12/2000 and supported by 16 paragraph affidavit seeking for the following orders:-
(i) AN ORDER SETTING ASIDE the judgment of the Honourable court delivered on the 7th day of November, 2000 against the defendant/Applicant in default of pleadings.
(ii) AN ORDER EXTENDING TIME within which the Defendant/Applicant may be allowed by the Rules of this Honourable Court to file and serve his statement of Defence and plan with his counter claim.
(iii) AN ORDER DEEMING the statement of Defence, counter claim and plan filed and served on the Plaintiff/Respondent’s counsel as properly filed and served, having already been paid.
(iv) AN ORDER RELISTING the said claim for trial on the merits.
(v) SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.
The defendant vide Notice of Appeal dated 14th April, 2003, is challenging the validity of the judgment of the lower court delivered on 7/11/2000. The Notice of Appeal containing two grounds of Appeal sought the relief of court of Appeal to allow the appeal and set aside the judgment of the trial judge delivered on 7/11/2000 and order a trial on the merits by another High Court within the judicial division.
In line with the Rules of this Honourable Court, the parties filed, exchanged and adopted their Briefs of Argument. The Appellant’s Brief of Argument dated 16/7/2009 and filed on 20/7/2009 was settled by C. N. OFODUM ESQ. for the appellant. The Respondent’s Brief of Argument dated 11/8/2009 and filed on 13/8/2009 was settled by Austin A. Ononye, Esq. for the respondent. The Appellant’s Reply and reply to the preliminary objection dated 2/9/2009 and filed on 3/9/2009 was settled by HNC MOGHALU ESQ. The appeal was heard on 7/5/2013.
The learned counsel for the Respondent had on 13/8/2009 filed a Notice of Preliminary Objection dated 10/8/2009.
The learned counsel for the Appellant formulated two issues for determination of this appeal. The appellant’s issues read thus:
ISSUE ONE
“Whether the learned trial judge was right to have entered an interim judgment with respect to the injunction relief which is ancillary (sic) the main relief which dealt on trespass to land without first determining the relief of damages for trespass”?
ISSUE TWO
“Whether the learned trial judge was right when he entered a default judgment in the case without hearing evidence from parties?”
On issue one, the learned counsel for the appellant questions whether the learned trial judge can grant an order of perpetual injunction which is ancillary to the main relief without first of all considering and determining who has title to the land or who has better title or who is in possession of the land. He contended that where an injunctive relief has no foundation, it cannot be granted. He cited the cases of YIL v. NGUMAR (1998) 8 NWLR (Pt. 560) page 125 ratio 5 and NNPC v. AIG LTD (2003) 3 NWLR (Pt. 805) Page 560 ratio 3.
The learned counsel further contended that the grant of perpetual injunction and mandatory orders are consequential orders which should naturally flow from the declaratory order sought and granted by a court. He added that an order of injunction is granted only to prevent the countenance of wrongful act by the party against whom it is made, because an order of injunction is only ancillary to prevent further trespass. He cited the cases of ESCSC v. GEOFFREY (2006) 18 NWLR (Pt. 1011) Page 293 ratio 4, MUSARI v. OGUNFODUNRIN (1996) 9 NWLR (Pt. 470) Pg. 1 ratio 1, AKPALAKPA v. IGBAIBO (1996) 8 NWLR (Pt. 468) Page 533 ratio 6 and EYIBAGBE v. EYIBAGBE (1996) NWLR (Pt 425) Page 408 ratio 6. He further contended that where a plaintiff claims damages for trespass and an injunction against further trespass, it follows that he puts his title in issue. He refers to the case of WALDA v. MAIZARE (2004) 4 NWLR (Pt. 704) Page 557 ratio 1 and asks this court to resolve issue no one in favour of the appellant.
In arguing issue two, the learned counsel for the appellant emphasized that the learned trial judge relied on order 42(2) of the High Court (Civil Procedure) Rules of Anambra State, 1988 to give the default judgment against the appellant. He contended that from the reliefs claimed by the plaintiff/respondent, it is clear that the main relief or principal relief upon which the perpetual injunctive reliefs is dependent on, is the relief of damages for trespass. He argues that by virtue of Order 9 Rule 42(2), the learned trial judge will only give judgment when evidence is taking as to:
1. Title is proved
2. Damages are quantified.
He contended that evidence was not led before the trial judge granted the injunctive order. He refers to the case of WALDA v. MAIZARE (supra) and asks this court to resolve issue no two in favour of the defendant/appellant.
In conclusion, he urges the Court of Appeal to allow the appeal and set aside the judgment of the lower court.
The learned counsel for the respondent formulated only one issue for determination of this appeal. The single issue is reproduced as follows:-
“Whether learned trial judge was right in his interpretation and application of Order 9 Rule 42(2) of the High Court of Anambra State 1988 given fact and affidavit evidence before him?”
The learned counsel for the respondent in his brief statement of facts highlighted that both parties in the substantive suit purchased adjourning plots of land at Ofufe/Ugwu Ocha land, Onitsha from the administratrices (sic) of late Justice Daniel Onwura Ibekwe, The appellant subsequently approached some Obosi people and once more purported to have purchased from them his own parcel of land alongside that of the respondent, unknown to him, the respondent. The Appellant’s efforts to fence off part of the respondent’s land was resisted by the respondent who twice pulled it down and went ahead to complain to one of the both parties’ common vendor, Madam Cecilia Ibekwe who tried in vain to call the appellant to order, hence the substantive suit.
The learned counsel pointed out that the then defendant was the late husband of the appellant. He emphasized that the defendant having evaded the service of the summons, he was eventually served by substituted means.
The learned counsel contended that the appellant was most lackadaisical in his response to the suit adding that the appellant never bothered to apply for extension of time to file a defence nor put up a counter-affidavit to the motion for judgment, hence the learned trial judge pursuant to Order 9 Rule 42(2), HCR of Anambra State, 1988 proceeded to judgment the subject matter of this appeal. He pointed out that the appellant had earlier filed a motion to set aside the judgment of 7/11/2000 which was dismissed. He contended that instead of appealing against the dismissal of her motion to set aside the judgment, the appellant sought to retrieve and dust up the right to appeal earlier rejected or waived aside.
It is the contention of the respondent that the present appeal is incompetent and should be dismissed on the strength of his preliminary objection dated 10/8/2009 and filed on 13/8/2009. The grounds for his objection are:-
(i) Judgment of the Onitsha High Court delivered in suit No. 0/37/98 OLISA NWADIOGU v. ALFRED C. MOFUNANYA on 7/11/2000 (the subject of the present appeal) has been overtaken in fact and in law by the Ruling of the same court in the same suit on 25/9/2001 refusing the Respondent’s (sic) application to set aside the said judgment.
(ii) By preferring to set aside the judgment of 7/11/2000 as against appealing against it, the Respondent is barred or stopped from returning to pursue an appeal, having been deemed to have waive his right of appeal.
(iii) As a court of law does nothing in vein, the Ruling of the lower court refusing to set aside the judgment of 7/11/2000 should not be regarded as idle and of no moment.
(iv) There should be an end to litigation to prevent the Respondent from later returning to appeal against the said Ruling of 25/9/2001 should the present appeal fail.
The learned counsel for the respondent cited the cases of SAVAGE v. UWAECHIA (1972) 3 S.C. 214 AT 224, ODU’A INVESTMENT CO. LTD v. TALABI (1991) 1 NWLR (Pt. 170) 761 at 779 H and MOHAMMED v. HUSSEINI (1998) 12 SCNJ 136 in aid. He urges this court to hold, in the light of the foregoing that this appeal is incompetent and an utter abuse of the process of this court since by bringing an application for setting aside at the lower court, his next steps following the dismissal of his application is an appeal against that dismissal. He refers to the case of Vanguard Media Ltd. v. Ajoku (2003), FWLR 68 AT 76, Ogunlewe v. Arewa (1960) NWLR 9 at 11 and strict interpretation of Order 9 Rule 42(2) Anambra State High Court (civil Procedure) Rules, 1988.
The learned counsel for the appellant in his reply brief and reply to the preliminary objection contends that the objection raised by the respondent is misconceived and lacks merit. He stated that the said objection is an abuse of court process which is intended to annoy and vex the appellant. He cited the case of N.H. INT’ L.S.A. v. N.H.H. LTD. (2007) 7 NWLR (Pt. 1030) 86 at pages 111-112 paras H – A.
The learned counsel further contended that the two options of applying to have a default judgment set aside or to appeal against same are not exclusive and resort to one of the options does not estop a party who fails in the first option he has chosen from taken the advantages of the other option. He cited the case of IDIATA v. EJEKO (2005) 11 NWLR (Pt. 936) Page 349 at 362 paragraph G – H.
Referring to the case of Mohammed v. Hussein (supra) cited by the respondent, the learned counsel for the appellant contended that the judgment of Ogundare in the case under reference was a dissenting opinion. He emphasized that dissenting judgment do not constitute the judgment of court and cannot be relied on as judicial precedent. He urges this court to dismiss the preliminary objection as being frivolous and vexations.
In his reply to the respondent’s argument in the main brief, the learned counsel for the appellant contended that there is nothing in the said Order 42 Rule 2 of the High Court (Civil Procedure) Rules of Anambra State, 1988 that empowers the learned trial judge to grant an ancillary relief which in law, cannot stand on its own as a relief but is dependent on the main relief for its live and force. He urges this court to allow the appeal.
Before I proceed to determine the issues raised in this appeal, it is imperative to first consider the Preliminary Objection raised by the respondent in this appeal.
The primary purpose of a Preliminary Objection is to determine or terminate the proceedings in limine at the time it was raised. It therefore behooves the court to hear and determine it first before embarking on the hearing or consideration of the issues to which or in respect of which the objection was raised in order to avoid what might turn out to be an unnecessary exercise. My position to first determine the respondent’s preliminary objection represents the position of law on the practice and procedure of the courts in such a situation. See Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637, Okoi v. Ibiang (2002) 10 NWLR (Pt. 776) 455, Goji v. Ewete (2001) 15 NWLR (Pt. 736) 273, NNB Plc v. Imonikhe (2002) 5 NWLR (Pt. 760) 294; Nigerian Navy v. Garrick (2006) 4 NWLR (Pt. 969) 69 at P.89.The respondent had by Notice of Preliminary Objection dated 10/8/2009 and filed on 13/8/2009, challenged the competence of the instant appeal on the ground earlier reproduced at page 8 of this judgment. The arguments of learned counsel for the parties have been taken as herein above reflected in the passage of this judgment.
The main contention of the respondent is that the appellant should not embark on a double-barrel pursuit of his case. He stated that the appellant have noticed that a judgment is given him in default ought to have appealed against the default judgment or apply to the lower court to set aside the judgment. It is on record that the appellant did not appeal ab initio against the default judgment rather she applied to the trial court for an order setting aside the default judgment. Her application to set aside the judgment was dismissed on 25/9/2001. The appellant vide an application for extension of time (made to this) court to appeal against the default judgment (which was granted on Order of the court on 3/4/2003, applied for compilation and transmission of record of appeal from the lower court to this court for the determination of the appeal.
Having considered the facts and circumstances of this case and the relevant decided authorities, I am in agreement with the erudite decision of this Honourable Court in the case of IDIATA v. EJEKO (2005) 11 NWLR (Pt. 936) page 349 at 354 ratio 5. It was the opinion of this court that:
“Where a default judgment has been entered against a defendant, the defendant has two options.
(a) To apply to set aside the decision entering the default judgment; or
(b) To appeal against the decision. The two options are not exclusive. In the instant case, the fact that the defendant took one of options but failed to achieve the desired result does not ipso facto estop him from taking advantage of the other option.”
In the light of the foregoing, I hold that the instant appeal is proper before this court. In this circumstance, I found no merit in the preliminary objection and consequently, it is hereby dismissed.
Having determined the Preliminary Objection, will now proceed to determine the appeal based on the issues formulated by the appellant. The two appellant’s issues had earlier been reproduced at pages 4 and 5 of this judgment. It will therefore be unnecessary duplicity to reproduce the same now.
Appellant’s Issue One:
The appellant relied heavily on the cases of VIL v. Nguma (1998) 8 NWLR (Pt. 560) page 125 ratio 5, Musari v. Ogunfodunrin (1996) 9 NWLR (Pt. 470) page 1 ratio, Akpalakpa v. Igbaibo (1996) NWLR (Pt. 468) page 533 ratio 6 and Eyibagbe v. Eyibagbe (1996) 7 NWLR (Pt. 425) page 408 ratio 6 to in his contention that the learned trial judge was wrong in granting injunctive relief to the respondent without foundation.
I have carefully studied the decisions of the court, and the authorities stated above. I observe with due respect that the facts of the cases are misconceived by the learned counsel for the appellant and consequently so misapplied to suit the circumstances and facts of the instant case. The legal authorities are respectively saying that where the action for trespass fails, the injunctive relief sought by the plaintiff must fail also because it cannot stand or be sustained on nothing. The respondent relying heavily on the provisions of Order 9 Rule 42 (2) of High Court (Civil Procedure) Rules of Anambra State, 1988 and the case of Ogunlewe v. Arewa (1960) WRNLR 9 at 11 contends that the decision of the learned trial judge cannot be faulted.
Order 9 Rule 42 (2) of High Court (Civil Procedure) Rules of Anambra State, 1988 provides:
“If the defendant fails to file a statement of defence as prescribed by the rules or by the order of court, the plaintiff, on his application shall be entitled to judgment on the face of Statement of Claim. Provided that where damages are claimed, the court shall take evidence before quantifying the damages entitled by the plaintiff/ on the Statement of Claim.”
The facts of this case are vividly elucidated by the respondent in his brief of argument as contained in the record of appeal before this court. Looking at the whole scenario, it is clear to me that the learned trial Judge in his wisdom acted judiciously. Could he have allowed the defendant to continue with the act of trespass in utter disregard or neglect of the summons served on him by the court on the instigation of the respondent. In the interest of justice, the answer is in the negative. The provision of Order 9 Rule 42 (2) is clear and the learned trial Judge acted in strict compliance with the rules when he held as follows:
“I therefore give judgment in default to the plaintiff as follows:
That the defendant is hereby restrained whether by himself or through his agent and or privies or in any manner whatsoever from entering or remaining or trespassing on the land in dispute in this suit as set out on the appellant’s plan No. AA/22/99 dated 12/6/99.
I award costs of N4000 in favour of the plaintiff as against the defendant.
With respect to the 2nd arm of the claim, as provided by Order 9 Rule 42(2), I hereby set aside the same down for evidence to be taking with respect to the claim for damages.
Hearing of the claim for damages is hereby adjourned to 28/2/2001”.
In the light of the foregoing, this issue is resolved in favour of the respondent.
Appellant’s Issue Two
On the weakness of the argument of counsel for the appellant in Issue one resolved in favour of the respondent, the weight of evidence based on the elicited fact and the enabling statute lie heavily on the scale of the respondent.
Under the Rules of Civil Procedure, when a party against whom a judgment for affirmative relief is sought has failed to plead (i.e. to answer) or otherwise defend, he is in default and a judgment in default may be entered against the party. This point is not short of the provisions of Order 9 Rule 42 (2) of High Court (Civil Procedure) Rules of Anambra State 1988.
The learned counsel for the appellant, while gasping for air referred to Order 9 Rule 42(3) of the High Court Rules of Anambra State and Walda v. Maizare (2004) 4 NWLR (Pt. 704) Page 557 ratio 1.
The provision of Order 9 Rule 42(3) could have been relevant and applicable to this case if the appellant is appealing against the dismissal of her application to set aside the judgment entered in her default. On the other hand, the ratio referred to in the case of Walda v. Maizare (supra) could have been relevant if the appellant had put up any defence prior to the default judgment.
It is obvious that facts not denied are deemed admitted and where a plaintiff filed a Statement of Claim and the defendant failed or refused to file a statement of defence in answer thereto, he will be deemed to have admitted the statement of claim leaving the court with the authority to peremptorily enter judgment for the plaintiff without hearing evidence. An exception to that would obviously be in respect of a claim for damages. Vanguard Media Ltd. v. Ajoku (2003) FWLR 68 at 76. In consideration of the above, I resolve this Issue in favour of the respondent. In conclusion, I hold that this appeal lacks merit. It fails and accordingly, it is hereby dismissed. The Judgment of the Anambra State High Court in Suit No. 0/37/1998 delivered by Egbuna, J. on 7th November 2000 is hereby affirmed. N50,000.00 cost is awarded to the Respondent against the Appellant.
ISAIAH OLUFEMI AKEJI, J.C.A.: My learned brother, ABUBAKAR JEGA ABDULKADIR, J.C.A. gave me the privilege of reading the draft of the judgment just delivered. The issues in the appeal have been well considered, and I agree that the appeal is devoid of merit and substance. I consequently dismiss the appeal and abide by the award of costs in favour of the respondent.
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 also hold that this appeal lacks merit and it is hereby dismissed. I abide by the orders made including the order as to costs.
Appearances
Mr. O. I. NnadiFor Appellant
AND
Mr. A. A. OnonyeFor Respondent
