SNR. EVAN. E. P. EKANEM & ORS. v. EMMANUEL O. ALOZIE
(2011)LCN/5038(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of May, 2011
CA/C/164/2009
RATIO
THE ISSUANCE OF AN ORIGINATING PROCESS
The principle is well established that the issuance of an originating process such as a writ of summons or originating summons and service of the same are distinct legal process in civil litigations, though they are both invoked in the course of putting the other party on notice. See Agip (Nig.) Ltd. v. Agip Petroli Intl., & ors. (2010) 5 NWLR 9 (pt.1187) 349/416. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
THE POSITION OF THE LAW WHERE THE DEFENDANT HAS NOT TAKEN FRESH STEPS IN THE MATTER WHICH WILL AMOUNT TO A WAIVER OF THE IRREGULARITY COMPAINED OF
I am thus of the firm viewpoint, that where there has been non compliance with sections 97 and 99 of the sheriff and civil process Act with regards to a writ to be served out of jurisdiction of a court, such non – compliance renders the issuance of the writ and or its service voidable and the defendant who complains of such non – compliance is entitled ex debito justitiae to have the same set aside. This was done in the cases of Skenconsult (Nig.) Ltd v. Ukey (1981) I. S. C. 6; N.E.P.A. v. Onah (1998) 4 NWLR (Pt.484) 680; Nwabueze v. Okoye (1998) 4 NWLR (pt.91) 664. This will be the position where the defendant has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of where such is not the case or where there has been no complaint by the defendant, the application to set aside the writ or originating process must be refused and it need not and will not be set aside. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
JA’FARU MIKA’ILUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
Between
1. SNR. EVAN. E. P. EKANEM
2. EVAN. AMONIA COOKEY
3. APOSTLE A. DICK AGBE
4. APOSTLE I. O. AMAH
5. SNR LEADER DUMA PEPPLE
6. SNR. MOTHER IN-ISRAEL ROSE JUMBOAppellant(s)
AND
EMMANUEL O. ALOZIERespondent(s)
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): In this appeal the Respondent as plaintiff sued the appellants as defendants in the High Court of Cross River State under the originating summons procedure in a matter dealing with the administration of the Church registered under the companies and Allied Matter Act especially as to who is to act on behalf of the Church in suspending or expelling the respondent as General Overseer/Most Snr. Apostle.
After hearing all the parties the trial Judge decided to give Judgment in favour of the Respondent in the following words:
“All the first three issues having been resolve (sic) in the positive, the last question for determination is if there is any merit in the claimant’s case. Again my view the answer is in the positive. That is the claimant’s case against Defendants is successful and he is also entitled to general damages which followed from Defendant’s action. See IJEBU-ODE LTD VS. BALOGUN AND CO. (1991) 1 NWLR (PT.166) 133 AT 142 held (sic) 13 mostly as no cogent reason had been stated in Defendants’ counter affidavit as to why plaintiff was suspended, and is accordingly hereby declared as follows:-
2. Going by the constitution of the Church of Christ the Good Shepherd, the Defendants have no rights to suspend the plaintiff indefinitely as the most Senior Apostle/General Overseer of the Church of Christ the Good Shepherd.
3. It is declared that the suspension letter dated 1st day of April, 2008 sign (sic) and issued by the defendants to the plaintiff is illegal null and void.
4. The plaintiff is hereby reinstated as most senior Apostle/General Overseer of the Church of Christ the good Shepherd and
5. The sum of N200,000.00 is hereby awarded as general damages in favour of plaintiff against Defendants who are hereby ordered to pay some to him (plaintiff) for the embarrassment they caused him.
6. There shall be no order as to cost”.
On the other hand the Respondent did not formulate any issue but predicated his arguments on the issues formulated by the appellants.
I think the issues formulated by the appellants are sufficient to determine this appeal and accordingly I will determine this appeal by considering the said issues formulated by the appellants.
The first issue centres on the fatal issue of jurisdiction. Thus, the question posed here is whether the learned trial Judge was right to have assumed jurisdiction in this case. This issue is distilled from ground I of the grounds of appeal.
The learned counsel for the appellant has submitted that the learned trial judge ought not to assumed jurisdiction in this case as it is not the state High Court that has jurisdiction in this case but the Federal0.
High Court. He stresses that it is not in doubt that the reliefs the Respondent took to the High Court has to do with the operation of the companies And Allied Matters Act as the contention of the Respondent was that the “constitution of the church” which they submitted to the Corporate Affairs Commission for registration/incorporation do not allow his removal. The learned counsel for the appellants has drawn the attention of this court to the wording of the relief sought as follows:-
“A declaration that the Defendants have no right to sign a letter on behalf of the Church of Christ the Good Shepherd suspending the plaintiff as the Most. Snr. Apostle general Overseer of the Church of Christ the Good Shepherd.”
The leaned counsel for the appellants has also referred to paragraphs 6, 7, 8, of the affidavit in support of the originating summons where the Respondent stated as follows:-
“That myself, Eunice Alozie, 1st and 4th Defendants are the Trustees of the Church”
“That the constitution of the Church of Christ the Good Shepherd, which was submitted at C.A.C. Abuja for the registration/incorporation of the Church is hereby attached and marked as Exhibit “B”
That I am to hold office as General Overseer for life or until I resign which ever is earlier”.
The learned counsel for the appellants has averred that from the above analysis it is not in doubt that the matter as to the operation of the Companies and Allied Matters Act is in issue because what the Respondent is saying is that by virtue of our Church registration properly done under section 595 of the Companies And Allied Matters Act and the constitution which was used to register the Church he cannot be removed from office.
The appellants’ counsel has stressed that there exists no way the lower court will not look at the constitution of the church and its operation under the Companies and Allied Matters Act before deciding the case.
He has further stressed that issue of trustees was raised by the Respondent on his own when he stated that himself, his wife, the 1st and 4th appellants are all Trustees of the Church. That the issue he canvassed next was that the Church Constitution does not allow his removal. The appellants counsel has further submitted that the acts of the Trustees and what can be done by them under section 596 of the companies and Allied Matters Act, L.F.N. 1990 and the constitution of the church interpretation has to do with the Operation Of The Companies And Allied Matter Act which the constitution of Nigeria under section 251(e) of the said 1999 Constitution stated that only the Federal High Court has exclusive jurisdiction to handle such cases.
It is also the submission of the appellants’ counsel that the trial judge with proper analysis and appreciation of facts presented before him decided as follows:
“I have reproduced the above provision in order to show that this suit has nothing in the main to do with the operation of the Companies and Allied Matters Act, other thon the church is duly incorporated. In my view the suit is one in which on individual church member alleges that he had been wronged by other fellow members. I fail to see whether the Federal High Court comes in here to the exclusion of this Courts Powers of jurisdictional competence…..”
The learned counsel for the appellant has further submitted that his Lordship from the above decision admitted that the case has to do with whether the church is duly incorporated as he used the sentence “other thon the church is duly incorporated.”
Thus the learned appellants counsel has submitted that the issue of whether the church was duly incorporated or not, has to do with whether or not the church can operate as a body under the Companies And Allied Matters Act which is the same thing as having to do with the operation of the Companies And allied Matters Act, especially as to whether it is applicable to the church or not.
The learned counsel for the appellants has also raised the issue of locus standi. He has submitted that there exists no proper plaintiff before the court because by virtue of section 596 of the Companies and Allied Matters Act, only the Registered Trustees of the Church Christ the Good Shepherd who ought to have maintained the action in filing the suit.
The learned appellant counsel has alternatively averred that there exist no proper Defendants before the lower court upon whom the Respondent could have gotten his judgment against as no judgment can be given against a non-existent Defendant or parties.
The learned appellant counsel has also submitted that it is not in doubt and it was even acknowledged by the Respondent that 1st and 4th Defendants are members of the Registered Trustees of the Church, and also that they did not act personally but acted on behalf of the church. He has quoted the wording of the relief as follows:
“A declaration that the Defendants have no right to sign of a letter on behalf of the church of God the Good Shepherd suspending the Plaintiff indefinitely as most Snr. Apostle/General Overseer of the Church of Christ the Good Shepherd…”
‘That myself, Eunice Alozie, 1st and 4th Defendants are the Trustees of the Church”
His further submission is that there is no where the Respondent in all his documents filed at the lower court, which is part of the record of appeal before this court, raised the issue that the church of Christ the Good Shepherd did not direct the Defendants (now appellants) to suspend him.
The learned appellant counsel has submitted that the acts of the agent binds the principal and therefore the proper party to be sued is the Registered Trustees of the Church of Christ , the Good Shepherd by virtue of the provision of section 596 (1) of the Companies and Allied Matters Act, LFN, 1990 and not by suing the Appellants whom the Respondent agreed that they did not act in their personnel capacity but acted on behalf of the Church. That he could hove sued the church directly for which the Appellants acted on behalf of , but since the said section 596(1) of CAMA said you could only sue the church in its Corporate name, there is then the need to only sue the Registered Trustees and not the appellants.
It is the submission of the learned counsel for the appellants that the act of an agent for a particular purpose, is the act the principal. That the situation in law is as if it was the principal that did what the agent did or omitted to do. The rule is expressed in the maxim: Qul per alum facit per seipsgm facere videtur” which means “He who does an act through another is deemed in law to do it himself. The learned counsel refers to the cases of LEVENTIS TECH. LTD VS. PETROJESSICA LTD (1992) 2 NWLR (PT.224) PAGE 459; 469 and A.C.B. Ltd v. APUGO (1995) 6 NWLR (PT.399) PAGE 65.
It short the complaints of the appellant in this case can be summarized as follows:-
1. The learned trial judge ought not to have determined this matter now on appeal under the originating summons procedure as there exist controversial and disputed facts.
2. The learned trial judge lacks the jurisdiction to hear the matter now an appeal as the appropriate court which ought to hear the case now on appeal is the Federal High Court.
3. The appellants acted on behalf of the church and the appropriate party which the Respondent out to have sued, ought to have been the Registered Trustees of the Church of Christ, the God Shepherd for whom the appellants acted for.
4. There exists no basis in law for the award of damages against the appellants.
As for as the learned counsel f or the respondent is concerned his submission can be summarized as follows:
The respondent was right in seeking redress in the State High Court as there was nothing in the entire matter that would have mode the Federal High Court to hove jurisdiction to entertain it hence the trial Judge was right to have entertained the matter.
The Respondent’s case borders on interpretation of Exhibit “B” vis-a-vis the conduct or offensive act of the appellants against him as a person, hence the filing of the suit in his personal capacity against the Appellants via originating summons.
In the instant case, both parties relied on affidavit evidence in support of their respective standpoints. The law is settled, that where the depositions in an affidavit filed in the course of hearing in a matter are seriously or sufficiently challenged by a counter-affidavit filed by the adverse party, the conflicting affidavits cannot be the basis of proper determination of the matter, without taking oral evidence from the parties or their witnesses, in order to resolve the conflicting evidence. It cannot be otherwise. In the instant case, the depositions contained in the affidavits filed by the parties are seriously challenging and or staggeringly conflicting. It was thus erroneous for the learned trial judge to hold that the matter can be determined vide the originating summons procedure, without calling oral evidence thereon. See FALOBI V. FALOBI (1976) 9 – 10 SC 1; A.C.B. PLC VS. EZENWA (2004) 7 NWLR (PT.872) 326; EZECHUKWU VS. ONWUKA (2006) 2 NWLR (PT.963) 151. Indeed, the disputed facts or challenged depositions in such affidavits have to be proved in similar manner like averments in pleadings.
In conclusion I find this appeal meritorious and I allow it. The proceedings and judgment of the lower court are set aside. A retrial by the High Court of Justice, Cross River State is hereby ordered. The case is remitted to the Chief Judge, Cross River State Judiciary for reassignment to another Judge for fresh hearing. Appeal allowed. No order as to costs. Ordered accordingly.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading before now’ the judgment of my learned brother, Ja’faru Mika’ilu, JCA, just delivered. I agree with the conclusion reached therein. I only wish to add by making the following points for emphasis.
It is to be noted that in the instant appeal, when the appellants filed their conditional memorandum of appearance’ no notice of preliminary objection or any complaint was laid before the trial court, with regards to the originating process served on them outside jurisdiction of the trial court and more particularly on the 1st, 2nd, 3rd, 5th and 6th defendants/appellants who were served by substituted means and as per the order of the trial court made on 07/10/2008. Indeed, nothing of the sort was raised in their counter affidavit filed in opposition and defence to the suit. This is moreso, with regards to the unilateral abridgement of time by the learned trial judge.
The principle is well established that the issuance of an originating process such as a writ of summons or originating summons and service of the same are distinct legal process in civil litigations, though they are both invoked in the course of putting the other party on notice. See Agip (Nig.) Ltd. v. Agip Petroli Intl., & ors. (2010) 5 NWLR 9 (pt.1187) 349/416.
Also in Broad Bank of Nig. Ltd. v. Olayiwola & sons Ltd (2005) 3 NWLR (pt.912) 434 the Supreme Court held that the endorsement as to “30 days” mentioned in Section 99 of the sheriff and Civil Process Act, is merely directory.
I am thus of the firm viewpoint, that where there has been non compliance with sections 97 and 99 of the sheriff and civil process Act with regards to a writ to be served out of jurisdiction of a court, such non – compliance renders the issuance of the writ and or its service voidable and the defendant who complains of such non – compliance is entitled ex debito justitiae to have the same set aside. This was done in the cases of Skenconsult (Nig.) Ltd v. Ukey (1981) I. S. C. 6; N.E.P.A. v. Onah (1998) 4 NWLR (Pt.484) 680; Nwabueze v. Okoye (1998) 4 NWLR (pt.91) 664.
This will be the position where the defendant has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of where such is not the case or where there has been no complaint by the defendant, the application to set aside the writ or originating process must be refused and it need not and will not be set aside.
In the instant case, the originating summons was properly issued, but improperly served as a result of the unilateral abridgment of the return date by the learned trial judge.
Indeed, even though the appellants filed a conditional memorandum of appearance, there was no protest or complaint whatsoever, with regards to both the issuance of the originating summons for service out of jurisdiction and its service which contravenes Section 99 of the Sheriff and Civil Process Act. Additionally, such a complaint has not been made a ground of appeal or issue before us in this matter. Thus, the appellants are not entitled to have the same set aside. It is also to be noted that the core on which the claim was predicated was amply disputed and by so doing issues have been joined and by necessary implication, the calling of evidence became imperative for the just determination of the case. It was thus incumbent on the trial court, to invite and allow the parties to ventilate their respective positions by adducing oral evidence in respect thereof. See F.S.B. Intl. Bank Ltd. v. Imamo Nig. Ltd. & Anor. (2000) 7 SCNJ 65, (2000) FWLR (Pt. 19) 392.
The appeal succeeds and it is accordingly allowed by me. A retrial by the High Court of Justice, Cross River State which has jurisdiction to entertain and determine the action is hereby ordered. I also make no order with regards to costs.
KUMAI BAYANG AKAAHS, J.C.A.: I read the draft of the judgment of my learned brother Mikailu, JCA allowing the appeal and remitting the matter to the Hon. Chief Judge, Cross River State for assignment to another Judge for hearing. I agree with the reasoning and conclusion reached in the said judgment and only wish to add the following for emphasis. Issue 1 is pivotal to this appeal. The reliefs sought by the Respondent are predicated on the constitution of the Church of Christ the Good Shepherd which provides that the Respondent being the Snr. Apostle/General Overseer of the Church holds office for life or until he resigns. The action of the appellants in suspending him indefinitely is not in consonance with the Constitution of that church. I do not see how these reliefs being sought relate to the operation of the Companies and Allied Matters Act to vest exclusive jurisdiction in the Federal High Court. Consequently, the Cross River State High Court has jurisdiction to entertain the action.
The appeal therefore succeeds and it is hereby allowed, I endorse the orders made in the leading judgment of Mikailu, JCA.
Appearances
Dr. A. Amuda-Kannike, Esq.For Appellant
AND
Fiderlis Ibiang Esq.For Respondent
