SUKUBO & ANOR v. BORO & ORS
(2022)LCN/16399(CA)
In The Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, January 19, 2022
CA/PH/187/2018
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. MR. KALOGBOLO NATH OBU SUKUBO 2. HON. TUBOTAMUNO DABIRI APPELANT(S)
And
1. CHIEF DUMOTIEM KOI BORO 2. CHIEF SALVATION JAMES 3. CHIEF SECOND BEREPIKI EDWARD 4. CHIEF ABOIFABIA SUNNY 5. CHIEF SOBEREKON KORUBO 6. CHIEF SAYA EMMANUEL KIO 7. ELDER OGA WARIBOKO (Suing On Behalf Of Themselves, The Boro Council Of Chiefs And The Entire People Of Boro Community Of Akuku Toru Local Government Area, Save The Defendants On Record) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON COMPILATION OF RECORD OF APPEAL
Regarding compilation of record of appeal, it is primarily the duty of counsel of both parties, on the invitation of the registrar of the trial Court to meet at a date fixed by the registrar where all the processes needed to be included in the record of proceedings in an appeal are agreed with the registrar, who will then proceed to prepare the records. See Fagbola v. Titilayo Plast. Industries Ltd. [2005] 2 NWLR (Pt. 909) 1. The fact that there was settlement of records, under the direction of the registrar of the lower Court is settled by the statement of Oweredaba-Duke Daba, Principal Registrar II, on the second page of the record of appeal. The official of Court stated:
“Parties were accordingly summoned for settlement of Records of Appeal and conditions imposed were fulfilled within time.”
When a counsel has realized that the record of appeal is incomplete, it is his duty as an officer of the Court, in the temple of justice, to promptly inform the Court and where he feels that, after due search in the lower Court, he can take other steps to convince the Court that the record before the Court though certified as the true copy of the proceedings, was indeed wrongly certified, he should know what next to do. Counsel is not to proceed – in argument – to proffer explanation as to what happened to the record of proceedings. See Yakubu v. Chief of Naval Staff [2004] 1 NWLR (Pt. 853) 94 at 113-114 and Odofin v. Agu [1992] 3 NWLR (Pt. 229) 350, 367.
A Court is entitled to look at its record and proceedings on any matter and take notice of their contents even though they may not be formally brought before the Court by the parties. See Onwuka v. Owolewa [2001] 7 NWLR (Pt. 713) 695 at 714. PER ADEGBEHINGBE, J.C.A.
WHETHER OR NOT THE COURT CAN GRANT A PRAYER NOT CONTAINED IN A MOTION PAPER
It is settled that:
a. A Court must not grant a prayer not contained in a motion paper. See Agip (Nig.) Ltd. v. AP International [2010] 5 NWLR (Pt. 1187) 424, 427.
b. The Court and parties are bound by the terms of prayers contained in a motion paper. See Okoya v. Santili [1990] 2 NWLR (Pt. 131) 172; Zaboley International Ltd. v. Omogbehin [2005] 17 NWLR (Pt. 953) 200 at 218.
c. Courts are not expected to make orders at large and without specific restrictions to that pleaded before them. It is also not the duty of the Court to go on voyage of discovery. Thus, prayers placed before the Court need to be specific, decisive, precise and to the point in such a way that there can be no question as to what is asked for. See Ozueh v. Ezeweputa [2005] 4 NWLR (Pt. 915) 221 at 241. PER ADEGBEHINGBE, J.C.A.
THE POSITION OF LAW ON WHEN A COURT IS SAID TO BE FUNCTUS OFFICIO
Thus, the lower Court had become functus officio in respect of the entirety of the claim brought before it by the respondents, which will include comments on the validity or otherwise of the writ of summons filed before it. When a Court is said to become functus officio it means in effect that as regards a matter, a final judgment has been delivered as in the event, the Court has ceased to have power to re-open or impeach the matter. See Partnership Investment Co. Ltd. v. First African Trust Bank Ltd [2003] 8 NWLR (Pt. 821) 211 at 219. The implication of that fact is that the lower Court did not have the power or authority to comment on the validity of a writ of summons, which commenced a suit, which it had previously struck out and no longer pending before the lower Court. In commenting on the validity of the writ of summons, filed by the respondents, the lower Court re-opened the claim of the respondents, which it should not have done, as it was done without power or authority to do so. The respondents were aware of the fact that the lower Court should not have pronounced on the validity of the writ of summons, but lured the lower Court to do so, all the same, by exhibiting the writ of summons to the motion filed on 18/01/2018, which led to the ruling, subject of this appeal. The fact that the writ of summons, in a concluded proceedings brought by the respondents, was attached to an affidavit before the lower Court does not confer authority on the lower Court to comment on the validity of proceedings, which the same Court had previously struck out and was not on appeal before it. In the case of Okpa & Anor v. Okpa & Anor (2013) LPELR-20396(CA), this Court stated:
“On the effect of an order of Court striking a suit, it was held in the case of Y. S. G. Motors Ltd v. Okonkwo (supra) at p. 539 that:-
“striking out of a suit or a case in its general connotation is the act of discontinuance or termination of the life span of that suit or case either temporarily or permanently.” See also Ohakim v Agbaso (2010) 19 NWLR (1226) 172. An order striking out an action does not preclude, estop or debar the plaintiff from filing a fresh action, or applying to re-list the action later. See PWT (Nig) Ltd. v J.B.O Int’l (2010) 19 NWLR (1226) 1, HB (Nig) Plc. v. Lodigiani (Nig) Ltd. (2010) 14 NWLR (1213) 330.”
Per Mohammed Lawal Garba JCA. (as he then was) (Pp. 14 – 14 Paras A – D).PER ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal were the first to approach the Court with their suit, which they filed in the Registry of the lower Court on 18/04/2011. With leave of Court, respondents amended their statement of claim. Consequently, the respondents claimed, against the appellants, in paragraph 38 of their amended statement of claim, filed on 04/04/2016, as follows:
“1. A declaration that the 1st claimant is the rightful person to occupy the chieftaincy stool of Boro community as the Amadabo of Boro community having been so approved by the majority of the 9 principal royal families and majority of the members of the 10 other family units of Boro community since 8th May 2010.
2. A consequential perpetual order restraining the defendants or anybody acting through them from parading the 1st defendant as Amadabo of Boro Community or the 1st Defendant parading himself or presenting himself to be so paraded as the Amadabo of Boro Community in Akuku Toru Local Government Area of Rivers State or howsoever interfering with the rights, powers and duties of the 1st claimant as the Amadabo of Boro Community.”
(See pages 129-130 of the record of appeal).
The appellants filed a statement of defence and counter-claim on 06/06/2011. Later, on 23/05/2016, appellants filed a joint statement of defence and counter-claim, wherein they counter-claimed in paragraph 42 thereof, thus:
“a) A declaration that the 1st Defendant, (HRH ALABO KALOGBOLO NATH OBU SUKUBO) in this suit, is the lawful incumbent of the stool of the Head of Boro family in Kula and as Boro XII, Amadabo of Boro with the title Boro XII, Amadabo of Boro and entitled to be so recognized by the claimants and the entire Boro Community, having been selected and installed according to the chieftaincy tradition and customary procedure for selecting a suitable candidate for the stool of Amadabo of Boro Community.
b) A declaration that the purported selection installation/coronation of the 1st claimant (Chief Domoteim Koi Boro) in this suit on 8th May, 2010 or any other date is unlawful, null and void and of not effect whatsoever having regard to the Chieftaincy tradition and customary procedure for selecting a suitable candidate for the stool of the Amadabo of Boro Community.
c) AN ORDER of perpetual injunction restraining the 1st Claimant or any of the Claimants, whether by themselves, servants, agents and/or privies from parading the 1st Claimant as a Chief, Chairman Boro Council of Chiefs and/or the Amadabo of Boro Community.
d) N5,000,000.00 (Five Million Naira) damages against the 1st Claimant and the other Claimants jointly and severally for wrongfully and/or falsely parading the 1st Claimant as the Amadabo of Boro Community and misleading the public accordingly.”
(See pages 189-190 of the record of appeal).
The claim of the respondents was struck out by the lower Court on 25/10/2016 (see pages 291, 292 and 325 of the record of appeal). The motion to relist the claim was itself struck out by the lower Court (Coram: Justice S. O. Benson) on 21/03/2017 (see pages 293-294 and 314 of the record of appeal). The respondents have not taken any step to revive their claim.
On 18/01/2018, respondents filed a motion, by which they requested the lower Court to strike out the appellant’s counter-claim, for being incompetent and that the lower Court lacked jurisdiction. The grounds for the application, stated by the respondents, are:
“1. The writ of summons that initiated the suit counter-claimed against was neither signed by the applicants’ counsel nor by any of the applicants.
2. A writ of summons unsigned by a legal practitioner or a claimant is a nullity.
3. Every step taken by an Honourable Court or every action predicated on a nullity is also a nullity.”
(See pages 315-317 and 410 of the record of appeal).
Upon consideration of arguments of parties, the lower Court dismissed the counter-claim filed by the appellants. It is the ruling of the lower Court, dated 10/04/2018, signed by Hon. Justice S. O. Benson, in respect of the motion, which is the subject matter of the appeal being determined in this judgment. (See pages 569-606 of the record of appeal).
The appellants filed a notice of appeal, containing nine grounds of appeal, on 22/05/2018. The prayers offered in the notice of appeal, by the appellants are:
“i. That the appeal be allowed.
ii. That the lower Court’s decision (that is the ruling of the Rivers State High Court coram Honourable Justice S. O. Benson in Suit No. DHC/15/2011 delivered 10th day of April, 2018) be set aside.
iii. An order of this Honourable Court dismissing the Respondent’s Motion of Notice filed in Suit No. DHC/15/2011 on 18-1-2018 in the High Court of Rivers State.
iv. An order of this Honourable Court remitting DHC/15/2011 to the Chief Judge of the High Court of Rivers State for re-assignment to another Judge for trial of the Appellants’ counter-claim alone.”
The record of appeal was transmitted to this Court on 14/05/2018. The appellants, also, transmitted additional record of appeal on 27/06/2018.
The appeal was heard, on 09/11/2021, in the absence of the respondents, upon the Court being satisfied that the respondents had notice of the scheduled hearing of the appeal. Stanley Princewill Esq., appeared for the appellants and he drew the Court’s attention to a notice of preliminary objection filed, on 11/03/2018, by the respondents in this appeal. Learned counsel requested that the notice of preliminary objection should be deemed argued, as the appellants responded to it, on 10/04/2019, vide a written address, which he adopted as argument.
Learned counsel prayed that the notice of preliminary objection should be dismissed.
Thereafter, appellant’s counsel adopted appellants’ brief of argument, filed on 28/06/2018, and the reply brief of argument, filed on 04/02/2019, as argument of the appeal.
The attention of the Court was drawn to the respondents’ brief of argument, filed on 21/09/2018, which the Court was urged to deem as having been adopted and the order granted.
Appellants’ counsel urged the Court to allow the appeal and set aside the judgment of the lower Court, dismissing appellants’ counter-claim.
Notice of Preliminary Objection
The notice of preliminary objection was filed on 11/03/2019. It requests this Court to strike out the appeal for want of jurisdiction. The main ground for the request is the fact that the record of appeal and the additional record of appeal excluded proceedings of the lower Court regarding proof of the counter-claim and exhibits tendered by the appellants. The notice of preliminary objection referred to an affidavit, filed by the respondents, on 19/10/2018, by which the record of appeal transmitted to this Court was challenged.
Appellants’ Argument of the Appeal
The appellants’ brief of argument, filed on 28/06/2018, was settled by Stanley Princewill Esq. Learned counsel found three issues for the determination of the appeal. These are:
a. Whether it was appropriate for the lower Court to hold that the respondents’ writ of summons was signed without calling on parties to address it on the issue.
b. Whether appellants were given fair hearing when the issue of appellants’ two joint statement of defence and counter-claim constituting abuse of the process was raised and resolved against the appellants.
c. Whether the dismissal of the appellants’ counter-claim was proper in law.
On the first issue, learned counsel recalled that both appellants and respondents agreed that the writ of summons filed by the respondents was not signed and parties did not join any issue on the point. The attention of the Court was directed to the admission of the fact in the respondents’ affidavit of 18/01/2018. At page 576 of the record of appeal, the lower Court accepted that fact too. Learned counsel argued that with the state of agreed facts, what the lower Court was called upon to do was determine whether the defect in the writ of summons affected the appellants’ counter-claim. Instead, the lower Court found that the fact that the name T. DUBLIN-GREEN was typed on the writ of summons made the document signed, without inviting parties to address it on the issue. The attention of this Court was drawn to page 583 of the record of appeal on the conclusion of the lower Court. He insisted that pages 557-588 of the record of appeal, were of the lower Court’s making, without any submission by the parties. Learned counsel is of the firm view that the lower Court was wrong in its decision and approach, as parties agreed on the fact. He cited the case of Leaders & Co. v. Bamaiyi [2010] 18 NWLR (Pt. 1225) 329 at 340 on the law that a Judge should not raise a point suo motu without hearing from the parties. He submitted that the writ of summons, on its face, shows that it is not signed. The cases of SLB Consortium v. NNPC [2011] 14 NWLR (Pt. 1252) 377 at 466; Bunge v. Governor of Rivers State [2006] 12 NWLR (Pt. 995) 573 at 599; FBN v. Maiwada [2013] 5 NWLR (Pt. 1348) 444 and Adeneye v. Yaro [2013] 3 NWLR (Pt. 1342) 625 at 634 were relied upon. He urged the Court to resolve the first issue in favour of the appellants.
On the second issue, learned counsel referred to decisions in Katto v. CBN [1999] 6 NWLR (Pt. 607) 390; Leaders & Co. V. Bamaiyi (supra); Victino Fixed Odds Ltd v. Joseph Ojo & 2 Ors [2010] 8 NWLR (Pt. 1197) 486 at 505, to recall the warning that a Court of law should not raise a point suo motu, without inviting parties or their counsel to address it. It will be a breach of a party’s fundamental right to fair hearing, where that is done. He pointed out that the lower Court on its own, at pages 598-599 of the record of appeal, raised the issue of appellants’ two joint statements of defence and counter-claim constituting abuse of Court process, without inviting parties or their counsel to address the Court on the issue. Learned counsel drew our attention to the fact that the lower Court had previously permitted appellants to effect a consequential amendment, as contained in the ruling of 02/03/2016, at pages 112-113 of the record of appeal. He submitted that the decision of the lower Court was therefore in error.
In the view of appellants’ counsel, the respondents’ motion of 18/01/2018 was clear on what was sought and attacked. It was to the effect that since appellants caused a consequential amendment of their joint statement of defence and counter-claim, on 23/05/2016, based on the amended statement of claim, predicated on an unsigned writ of summons and the counter-claim should be struck out. It was not the respondents’ case that the joint statement of defence and counter-claim constituted abuse of process and should be dismissed. He accused the lower Court of taking on a case different from that presented to it and granting a relief not sought by any party. The attention of the Court was drawn to page 603 of the record of appeal, on the conclusion of the lower Court. The case of Ochonma v. Unwosi [1965] NWLR 321 was cited. He submitted that the decision of the lower Court occasioned miscarriage of justice.
On the third issue, learned counsel recalled that the lower Court held that the respondents’ application failed, upon its discovery that their writ of summons was signed, which was the only ground for the application.
This is at page 588 of the record of appeal. At that point, there was nothing left for the Court to determine. He further submitted that the mere existence of two processes in the same action does not constitute abuse of process of Court, except there is clear intention to proceed with the prosecution of both processes. He cited the cases of Diamond Bank Ltd. v. Pic Ltd. [2010] All FWLR (Pt. 512) 1098 at 1126 and Savannah Bank of Nigeria Plc v. CBN [2009] All FWLR (Pt. 481) 939 at 969.
He explained that the existence of two joint statements of defence and counter-claim cannot be construed to amount to abuse of process of Court, as the second process takes the place of the first, in consequence of amendment of the statement of claim, as it is a consequential amendment, which does not require leave of Court, but leave was even granted in this case, at page 123 of the record of appeal. He relied on the cases of Doma v. Adamu [1999] 4 NWLR (Pt. 589) 311; Benaplastic Industries v. Vasilyev [1999] 10 NWLR (Pt. 624) 620; Abubakar v. Unipetrol Plc [2002] 8 NWLR (Pt. 769) 242 at 253; Ikine v. Edjerode [2001] 18 NWLR (Pt. 745) 446 at 486 and Dingyadi & Anor. v. INEC & Ors. [2010] LPELR 40142(SC).
Assuming there was need to act, the view of the learned counsel is that the lower Court ought to have struck out the latter joint statement of defence and counter-claim, instead of dismissing the appellants’ counsel-claim. Learned counsel cited the judgment in the case of CA/L/421/2013:Dimacon Industries Ltd. v. Ajayi-Bembe & 3 Ors delivered on 19/05/2017 to make the point that defect in the claim does not affect the counter-claim.
Learned counsel urged this Court to resolve the three issues in favour of the appellants and allow the appeal.
Respondents’ Argument of the Appeal
On the part of the respondents, who filed their respondents’ brief of argument on 21/09/2018, settled by S. C. Amaefule Esq., the three issues found for determination of this appeal are same as those proposed by the appellants.
On the first issue, respondents’ counsel contended that parties did not agree that the respondents’ writ of summons was not signed. He pointed at pages 459 and 469 of the record of appeal, where the appellants’, through counsel made submissions. He is of the view that the issue of the competence of the writ of summons was available for the lower Court’s pronouncement, especially, as the writ was attached, as exhibit, to the affidavit in support of the application. The cases of Ejuetami v. Olaiya & Ors [2002] FWLR (Pt. 88) 955 at 981 and Onimola & Anor. v. Adefolabi & Anor [2008] All FWLR (Pt. 438) 324 at 348-349 were cited. Learned counsel insisted that it was within the powers of the lower Court to determine the competence of the writ of summons. He asserted that the authorities relied upon by the appellants are not applicable to the appeal.
Learned counsel submitted, relying on decisions in Nweke v. Okafor [2007] 10 NWLR (Pt. 1043) 521; Tanimu v. Rabiu [2018] 4 NWLR (Pt. 1610) 505; First Bank of Nigeria Ltd. v. Maiwada [2012] 213 LRCN 121 at 145; Braithwaite v. Skye Bank Plc [2013] 5 NWLR (Pt. 1346) 15; Broad Bank Nigeria Ltd v. Alhaji Olayiwola & Sons Ltd. [2005] All FWLR (Pt. 251) 246 at 252 and Order 3 Rules 1-15, Order 6 Rule 2(3), Order 5 Rule 2(1) of the High Court (Civil Procedure) Rules, 2010 of Rivers State in making the submission that the writ of summons in the suit was signed and that the suit was competent, when it was filed.
On the second issue, the respondents’ counsel pointed out that the question of filing of two statements of defence arose out of arguments mounted by the appellants and not raised suo motu by the lower Court. Pages of the record of appeal (461, 464, 519-524 and 563) were highlighted where submissions were made by the counsel for the parties. He explained that all the lower Court did was to draw appropriate legal conclusions on issues before it. The cases of Ejuetami v. Onhonyon [1985] 1 NWLR (Pt. 2) 177, T. M. Orugbo & Anor. v. Bulara Una & Ors. [2002] 9 SCNJ 12, Adegoke Motors Ltd. v. Dr. Babatunde Adesanya & Anor [1989] 1 NWLR (Pt. 109) 250; Fawehinmi v. NBA & Ors (No. 2) [1989] 2 NWLR (Pt. 105) 558 at 650 and Ikenta Best (Nig.) Ltd. v. A. G. Rivers State [2008] 3 SCM 65 at 82 etc were cited. Learned counsel insisted that the arguments rendered by appellants in this appeal were made before the lower Court. He mentioned the issue for determination before the lower Court, which he considers to be the question answered by the lower Court. In the view of learned counsel, appellants had sufficient fair hearing on the question of filing two processes. He referred to pages 596-609 of the record of appeal and submitted that the dismissal of the counter-claim was in consequence of abuse of process of Court.
Learned counsel complained that the record of appeal shows that appellants had commenced proving the counter-claim at the time their counter-claim was dismissed. Appellant, regardless, failed to transmit records of those proceedings. He cited the cases of Shifarm & Ors v. Balogun & Ors [1999] 10 NWLR (Pt. 622) 214 at 226-227 Okonkwo v. United Bank for Africa [2013] FWLR (Pt. 146) 1736 at 1746; Engineer Hufnagl & Anor v. Acha Lesco & Anor [2002] FWLR (Pt. 131) 1845 and 1849-1850 on the point that the Court has power to punish abuse of process of Court.
He mentioned that the respondent will contend that the record of appeal transmitted to this Court is incomplete.
On the third issue, the point was made that where there is abuse of process, dismissal of the action is the result, especially, as two witnesses had been called by the appellants in this appeal. It was submitted that the appellants had commenced proving their case and the lower Court could only have dismissed the counter-claim, which was predicated on the defective process. Learned counsel sought to distinguish the decisions relied upon by appellants’ counsel on how the counter-claim could have survived the defective claim. He relied on the case of Vesa Foods Agencies Ltd. & Anor v. Access Bank Plc. [2014] LPELR – 22441 (CA).
Appellants’ Reply Argument
Appellant filed their reply brief of argument on 04/02/2019, settled by Stanley Princewill Esq. Learned counsel condemned the attitude of respondents’ counsel and quoted, extensively, the affidavit filed in support of the respondents’ motion of 18/01/2018, where the deponent stated that the writ of summons filed by the respondents was neither signed by either the respondents nor their counsel. He directed the Court’s attention to pages 617-662 of the additional record of appeal. At page 661 of the additional record of appeal, learned counsel recalled the argument of the respondents’ counsel before the lower Court. The portion of the judgment of the lower Court at page 576 of the record of appeal was pointed out, where the Court stated what was agreed by parties. It was submitted that parties are not allowed to change their case mid-stream in proceedings.
Learned counsel noted the specific prayers placed before the Court by the respondents in their motion, supported by specific grounds relied upon. Learned counsel observed that the respondents admitted that the appellants filed consequential amended joint statement of defence and counter-claim, based on the amendment of the statement of claim (page 617 of the additional record of appeal). These are facts shown on pages 520, 521, 524 etc. He explained that the sole issue before the Court was whether a defective writ of summons will have effect on a counter-claim and not the filing of two statements of defence. He insisted that the lower Court left the main issue before it and dealt with peripheral issues and its decision cannot stand.
Learned counsel submitted that the lower Court could not have relied on the grant of consequential orders to make a new order not asked for.
Remaining portions of the reply brief of argument was a rehash of arguments already canvassed by the appellant in their main brief.
In the reply to the notice of preliminary objection, filed on 10/04/2019, settled by Stanley Princewill Esq., learned counsel argued that the notice of preliminary objection is not the appropriate vehicle to complain, as respondents did. This is against the background of the fact that respondents raised the issue of incomplete record of appeal transmitted to this Court in their respondents’ brief of argument. He submitted that the notice of preliminary objection is an abuse of the process of this Court.
On the substantive complaint in the notice of preliminary objection, learned counsel submitted that processes and proceedings relevant to the determination of the appeal were transmitted to this Court, since the appeal is not on the determination of the suit before the lower Court on the merit. Record of appeal was settled, preceded by invitation extended to parties, by the registry of the lower Court on 27/04/2018. The attention of the Court was directed to pages 613-615 of the additional record of appeal. The respondents’ counsel did not complain about inadequacy of the compiled records and they had more than 10 months within which they could have transmitted whatever they claimed was omitted.
Learned counsel recalled that the appellants filed a counter-affidavit on 19/2/2019 to challenge the respondents on their preliminary objection.
DETERMINING THE PRELIMINARY OBJECTION
The preliminary objection raised by the respondents complains that the record of appeal transmitted to this Court, in this appeal, is incomplete. This Court, in the opinion of the respondents’ counsel is therefore deprived of jurisdiction to determine the appeal before it. Regarding compilation of record of appeal, it is primarily the duty of counsel of both parties, on the invitation of the registrar of the trial Court to meet at a date fixed by the registrar where all the processes needed to be included in the record of proceedings in an appeal are agreed with the registrar, who will then proceed to prepare the records. See Fagbola v. Titilayo Plast. Industries Ltd. [2005] 2 NWLR (Pt. 909) 1. The fact that there was settlement of records, under the direction of the registrar of the lower Court is settled by the statement of Oweredaba-Duke Daba, Principal Registrar II, on the second page of the record of appeal. The official of Court stated:
“Parties were accordingly summoned for settlement of Records of Appeal and conditions imposed were fulfilled within time.”
When a counsel has realized that the record of appeal is incomplete, it is his duty as an officer of the Court, in the temple of justice, to promptly inform the Court and where he feels that, after due search in the lower Court, he can take other steps to convince the Court that the record before the Court though certified as the true copy of the proceedings, was indeed wrongly certified, he should know what next to do. Counsel is not to proceed – in argument – to proffer explanation as to what happened to the record of proceedings. See Yakubu v. Chief of Naval Staff [2004] 1 NWLR (Pt. 853) 94 at 113-114 and Odofin v. Agu [1992] 3 NWLR (Pt. 229) 350, 367.
A Court is entitled to look at its record and proceedings on any matter and take notice of their contents even though they may not be formally brought before the Court by the parties. See Onwuka v. Owolewa [2001] 7 NWLR (Pt. 713) 695 at 714.
I am satisfied, upon going through the record of appeal, that the appellants’ counsel is right, in his argument, when he submitted that the records transmitted to this Court is sufficient to enable this Court to arrive at a complete resolution of the appeal before it. The appeal before this Court relates to ONLY the decision of the lower Court, dismissing the counter-claim of the appellants, consequent upon the notice of motion filed by the respondent on 18/01/2018. The mentioned motion is in the record of appeal. The two pleadings (statement of defence and counter-claim) filed, at different times, by the appellants are in the record of appeal. The writ of summons, by which the suit before the lower Court was commenced, is in the record of appeal. The affidavits and written arguments submitted and adopted by parties, before the lower Court, are in the record of appeal. The ruling of the lower Court, against which the appeal was filed, is in the record of appeal. Direction will be located in the words of Tobi JSC in the case of Okochi v. Animkwoi [2003] 18 NWLR (Pt. 851) 1 at 23 where His Lordship stated that:
“As an appellate Court hears an appeal on the records before it, it must ensure that the records are complete as settled by the parties. An appellate Court must be wary to hear an appeal on incomplete records unless the parties by consent, agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court.
There could however be another situation where an appeal could be heard when the records are incomplete. Such a situation will be where the missing part of the record, in the view or opinion of the Court, is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. This is a very difficult decision and an appellate Court can only take it in very obvious and clear circumstances. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record.
Where all diligent efforts to procure the missing part of the record fails, the Court should take the most painful decision of ordering a retrial in the matter if the missing portion of the record is material to the appeal.”
In this appeal, the fact that record of the evidence led at the lower Court is not included in the record of appeal is immaterial, because the issue to be resolved in this appeal is limited in scope and does not involve evidence led at the trial. It is my view that there is no merit in the preliminary objection raised by the respondents, which is hereby discountenanced and dismissed.
DETERMINING THE APPEAL
In determining this appeal, it is reasonable to adopt the issues adopted by parties. It will make the Court’s resolution of the three issues more direct and traceable.
Resolution of the three issues together
a. Whether it was appropriate for the lower Court to hold that the respondents’ writ of summons was signed without calling on parties to address it on the issue.
b. Whether appellants were given fair hearing when the issue of appellants’ two joint statement of defence and counter-claim constituting abuse of the process was raised and resolved against the appellants.
c. Whether the dismissal of the appellants’ counter-claim was proper in law.
It is settled that:
a. A Court must not grant a prayer not contained in a motion paper. See Agip (Nig.) Ltd. v. AP International [2010] 5 NWLR (Pt. 1187) 424, 427.
b. The Court and parties are bound by the terms of prayers contained in a motion paper. See Okoya v. Santili [1990] 2 NWLR (Pt. 131) 172; Zaboley International Ltd. v. Omogbehin [2005] 17 NWLR (Pt. 953) 200 at 218.
c. Courts are not expected to make orders at large and without specific restrictions to that pleaded before them. It is also not the duty of the Court to go on voyage of discovery. Thus, prayers placed before the Court need to be specific, decisive, precise and to the point in such a way that there can be no question as to what is asked for. See Ozueh v. Ezeweputa [2005] 4 NWLR (Pt. 915) 221 at 241.
In the motion determined by the lower Court in its ruling of 10/04/2018, which is the subject of this appeal, the specific prayer placed before the lower Court is for:
“1. AN ORDER striking out the counter-claim in this suit for being incompetent and thereby robbing this Honourable Court of jurisdiction to entertain same.”
The specific grounds for the application, stated by the respondents (then, as applicants), are:
“1. The writ of summons that initiated the suit counter-claimed against was neither signed by the applicants’ counsel nor by any of the applicants.
2. A writ of summons unsigned by a legal practitioner or a claimant is a nullity.
3. Every step taken by an Honourable Court or every action predicated on a nullity is also a nullity.”
(See page 410 of the record of appeal).
When the respondents, who took the application before the lower Court, presented their arguments, and the appellants resisted the application, they each set only one issue before the lower Court, which that Court stated, at pages 574-575 of the record of appeal, as follows:
“In his written address filed on 18-1-2018, AMAEFULE, ESQ, for the applicants, formulated the following solitary ISSUE for determination by this Court in this motion.
“Whether an amended statement of defence and counter-claim that is predicated on an order of Court made pursuant to an unsigned writ of summons is valid in law?”
After a rather lengthy criticism of the above lone issue, STANLEY PRINCEWILL, ESQ, for the Respondents, for the Respondents, felt the following lone ISSUE will help this Court navigate through this motion on notice:
“Whether a counter-claim can rightly proceed upon the striking out of the main claim” even when the main claim is fundamentally defective”.”
Despite the clear issues submitted to the lower Court, that Court inexplicably stated the issues before it, at page 574 of the record of appeal, as follows:
“FROM the Court processes filed by the parties herein, and listed above, the TWO clear ISSUES that may help this Court decide this motion on notice one way or the other are:
(1) WAS the writ of summons issued in this suit at the instance of the applicants herein, on 18-4-2011, valid and competent?
(2) If the answer to ISSUE No. 1 above, is in the AFFIRMATIVE, WHETHER this Court will still have the jurisdictional competence to continue the hearing and determination of this suit, based on the two sets of statement of defence and counter-claim filed by the Respondents herein, on 6-6-2011 and 23-5-2016 respectively on or both dates?”
At pages 587-588 of the record of appeal, where the lower Court resolved the first issue, it said, thus:
“In the case in hand, the law firm of “S. J. EFIK & ASSOCIATES” did not even sign the said writ of summons. It was signed by “T. DUBLIN-GREEN”. The argument of learned counsel for the applicants, MR. AMAEFULE, that the writ of summons filed by the applicants on 18-4-2011, was not signed, was not taken with good intention. It is simply mischievous to argue as above. Applicants and counsel just simply want the Respondents to drown with them, their own claims having been struck out by this Court for want of due diligence. I will therefore not allow Respondent’s case by way of a counter-claim to sink on this ground. It may sink on other grounds if proven, but not on this one.
In the end, the objection by the applicants that there is no competent writ of summons in this suit is not sustainable. It is clearly misconceived and grossly so. Likewise, the complex and hair splitting arguments of MESSRS. PRINCEWILL AND AMAEFULE on the point, will appear to me to be wasted effort or labour loss. I will therefore answer ISSUE NO. 1 in the AFFIRMATIVE against the Applicants herein. Meaning that there is a valid and competent writ of summons before this Court in this case, leaving this Court’s jurisdictional competence intact vis-à-vis this suit.” (Bold font for emphasis).
The writ of summons filed before the lower Court is located at pages 1 and 2 of the record of appeal. It is a confirmed fact that T. Dublin-Green Esq.’s signature is appended atop his name on the process, as shown at page 2 of the record of appeal, beneath the stamp impression of the law firm. The lower Court was therefore correct when it held that the writ of summons was signed, appropriately, by a known and named legal practitioner. The fact that the appellants and respondents deposed to the fact that the writ of summons was not signed or made submissions in respect of that fact, does not prevent the lower Court (and this Court) from physically examining the process before it, as it obviously did, and make its own deductions or findings, independent of inaccuracies or errors committed by the parties and their counsel. There is a signature above the name mentioned by the lower Court and the lower Court was right to make the findings it made, even if it was not supposed to have allowed itself to have done so.
The lower Court should not have considered the validity or otherwise of the writ of summons, because, it is a fact that the claim filed by the respondents was no longer available for resolution at the time the lower Court rendered its ruling, which is the basis of the appeal before us, on 10/04/2018. This is because, on 25/10/2016, the lower Court struck out the suit of the claimant. Thus, the lower Court had become functus officio in respect of the entirety of the claim brought before it by the respondents, which will include comments on the validity or otherwise of the writ of summons filed before it. When a Court is said to become functus officio it means in effect that as regards a matter, a final judgment has been delivered as in the event, the Court has ceased to have power to re-open or impeach the matter. See Partnership Investment Co. Ltd. v. First African Trust Bank Ltd [2003] 8 NWLR (Pt. 821) 211 at 219. The implication of that fact is that the lower Court did not have the power or authority to comment on the validity of a writ of summons, which commenced a suit, which it had previously struck out and no longer pending before the lower Court. In commenting on the validity of the writ of summons, filed by the respondents, the lower Court re-opened the claim of the respondents, which it should not have done, as it was done without power or authority to do so. The respondents were aware of the fact that the lower Court should not have pronounced on the validity of the writ of summons, but lured the lower Court to do so, all the same, by exhibiting the writ of summons to the motion filed on 18/01/2018, which led to the ruling, subject of this appeal. The fact that the writ of summons, in a concluded proceedings brought by the respondents, was attached to an affidavit before the lower Court does not confer authority on the lower Court to comment on the validity of proceedings, which the same Court had previously struck out and was not on appeal before it. In the case of Okpa & Anor v. Okpa & Anor (2013) LPELR-20396(CA), this Court stated:
“On the effect of an order of Court striking a suit, it was held in the case of Y. S. G. Motors Ltd v. Okonkwo (supra) at p. 539 that:-
“striking out of a suit or a case in its general connotation is the act of discontinuance or termination of the life span of that suit or case either temporarily or permanently.” See also Ohakim v Agbaso (2010) 19 NWLR (1226) 172. An order striking out an action does not preclude, estop or debar the plaintiff from filing a fresh action, or applying to re-list the action later. See PWT (Nig) Ltd. v J.B.O Int’l (2010) 19 NWLR (1226) 1, HB (Nig) Plc. v. Lodigiani (Nig) Ltd. (2010) 14 NWLR (1213) 330.”
Per Mohammed Lawal Garba JCA. (as he then was) (Pp. 14 – 14 Paras A – D).
In the portion of the ruling of the lower Court quoted above, the lower Court treated the writ of summons as still subsisting before it, which is not so. The writ of summons had been struck out along with the claim. This fact was presented to the lower Court in paragraph 3(ii) of the counter-affidavit of Charles Odu, filed by the appellants, dated 18/02/2018, at page 457 of the record of appeal, where it was deposed:
“ii. That the Applicants do not have a pending Writ of Summons in this suit as same was struck out on 25/10/2016, a copy of the order is attached to our earlier counter-affidavit filed on 30/5/17 as Exhibit CO1.”
The validity or otherwise of the writ of summons, by which the suit was filed by the respondents was not available for the comment of the lower Court at the time it purported to do so, even if its comment was correct and a statement of fact. That is a resolution of the first issue.
An examination of the prayers contained in the motion filed by the respondents on 18/01/2018; the grounds presented as the reason for the application and the respective issues submitted by the parties to the Court for the resolution of the motion on notice presented by the respondents, vividly, depict the fact that the second issue set by the lower Court in its judgment, which is quoted above, is not derived from the motion on notice or grounds for its presentation. The second issue did not emanate from the parties, because parties submitted one issue each for determination, which did not include any issue of abuse of the process of the Court. The second issue was the making of the lower Court. The second issue was completely extraneous to the motion on notice. The lower Court should not have allowed itself to raise the issue or consider the issue, even if parties presented arguments touching on the issue. Parties did not offer direct arguments on the direct question of abuse of process of Court. The lower Court was bound by the prayers and grounds for the application before it. A Court has no competence and jurisdiction to grant prayers or orders not sought before it by the parties. See Atoyebi v. Bello [1997] 11 NWLR (Pt. 528) 268 at 288-289.
At page 574 of the record of appeal, the lower Court stated:
“At the hearing of this motion on notice on 19-3-2018, learned counsel for the Applicants, after adopting all his Court processes listed above, urged this Court to grant this motion on notice and strike out the counter-claim before it.”
At page 595 of the record of appeal, the lower Court further stated:
“MR. AMAEFULE for the Applicants finally urged this Court to strike out the Respondents’ counter-claim filed on 23-5-2016, on the ground that the writ of summons, filed on 18-4-2011, was a nullity. I have already held that the said writ of summons is valid and nothing for now, can change that view of this Court regarding EXHIBIT ‘B1’, which is the said writ of summons. The writ of summons filed on 18-4-2011, was not a nullity. But, is there any competent statement of defence and counter-claim before this Court to warrant the continuation of proceedings in this case before this Court?”
The final order granted by the lower Court is as follows:
“IN the final analysis, the motion on notice filed by the Applicants on 18-1-2018, is hereby upheld. I will therefore, make the following consequential order:
(1) The counter-claims of the Respondents filed on 6-6-2011 and 23-5-2016, together with whatever may be left of this suit, must be dismissed on ground of abuse of Court process and same is hereby dismissed.
(2) There will be costs of N100,000.00 against the Respondents and in favour of the Applicants.”
(See page 605 of the record of appeal).
(Bold font for emphasis).
Having found the prayer on the motion on notice, filed on 18/01/2018, incapable of being granted, the lower Court ought to have dismissed the motion. There was nothing else to later uphold in the motion, as the lower Court did, in its ruling. There was no way the lower Court could have validly arrived at making a consequential order as it purported to do in its judgment. A consequential order is not one merely incidental to a decision but one necessarily flowing directly from, and inevitably consequent upon, it. It must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief. A consequential order can only relate to issues properly adjudicated upon. A proper consequential order need not be claimed and sustained from the facts before the Court. See Liman v. Mohammed [1999] 9 NWLR (Pt. 617) 116 at 134.
The sole prayer brought to Court, was for the Court to hold that there was no valid writ of summons commencing the suit, which implicitly affected the validity of the counter-claim, which should be struck out. The lower Court found as a fact that the writ summons filed to commence the suit was valid. The prayer sought by the respondent was not granted by the lower Court. There was therefore no consequential order to be granted from that refusal. What the lower Court granted, as it eventually ordered, is definitely, not a consequential order, but a fresh order made by the lower Court by itself, which no party prayed for, on the record. The order was made in denial of fair hearing to the appellants and should not be allowed to stand. The second issue is resolved in favour of the appellants.
To resolve the third issue, there has to be copious reference to the record of the lower Court. At pages 596-604 of the record of appeal, the lower Court recorded the contentions of the appellants and the respondents before it and its reasoning to granting the order it granted.
The cited pages and conclusion of the lower Court thereat, was not preceded by any invitation to the parties to address the lower Court on the issue of abuse of the process of Court by the lower Court. Arguments presented before the lower Court were directed to the issue of whether the counter-claim could survive the “alleged” defect in the writ of summons. The lower Court, on its own, without hearing from the parties, created a second issue and looked into the issue of an alleged abuse of the process of Court, with the existence of two joint statements of defence and counter-claim filed, respectively, on 06/06/2011 and 23/05/2016. That was a clear case of denial of fair hearing, as the parties did not present such a case to the lower Court. Natural justice demands that a party be heard before the case against him is determined. Once there is an infringement of the principle of natural justice against him, then the trial or hearing is not fair.
The principle of fair hearing is not a mere adjudication but a doctrine that enjoins that once a party entitled to be heard before deciding a matter is denied opportunity of being heard, the order or decision given thereon will be vacated or set aside, this is because the issue of fair hearing is constitutional and fundamental. See Olufeagba v. Abdulraheem & Ors [2009] 18 NWLR (Pt. 1173) 384 and Ararume v. Ubah [2021] 8 NWLR (Pt. 1779) 511 at 539, per Oseji, J. S. C. Denial of fair hearing, in the circumstances of this appeal, is confirmation, without more, that miscarriage of justice was occasioned by the inexplicable abstinence of the lower Court from hearing the parties or appellants on the specific second issue, on which it based its decision. The lower Court’s ruling, dated 10/04/2018, is not good enough, in the circumstances, to be retained as pure exercise of judicial authority and has to be weeded out, for the sanctity of the process of adjudication to be sustained. The lower Court was in great error when it dismissed the counter-claim, which was part-heard by it, on the basis that there existed two statements of defence and counter-claim, which occasioned an abuse of the process of Court.
Abuse of the process of Court
This being the penultimate Court, it is incumbent on it to consider the issue of abuse of process of Court, in some detail and record its opinion on the issue, assuming, but not conceding, that the issue was properly raised before the lower Court (which was not). At pages 21-34 of the record of appeal is the appellants’ joint statement of defence and counter-claim, filed on 06/06/2011. At pages 124-130 of the record of appeal is the respondents’ amended statement of claim filed on 04/04/2016. At pages 166-190 of the record of appeal is the joint statement of defence and counter-claim filed by the appellants on 23/05/2016. Thus, the processes, the existence of which the lower Court considered abusive of its process, are the joint statement of defence and counter-claim, filed on 06/06/2011, on the one hand and the joint statement of defence and counter-claim, filed on 23/05/2016, on the other hand.
In attempting to describe or define what amounts to abuse of the process of Court, in the case of Ojo & Ors v. Olawore & Ors (2008) LPELR-2379(SC), the Court stated that:
“… it is significant to observe that the abuse of Court process or abuse of judicial process as the case may be, may be manifest in both a proper or improper use of the judicial process in litigation. However, the employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. For example in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Oyegbola v. Esso West African Inc. (1966) 1 All N.L.R. 170 and Okorodudu v. Okoromadu (1977) 3 S.C.21 (1977)3 S.C 13. It is also an abuse of process where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. In other words, it is the inconvenience and inequities involved in the aims and purposes of the action that constitutes abuse of process. See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207, Saraki v. kotoye (1992) 9 NWLR (Pt.264) 156 and Central Bank of Nigeria v. Ahmed (2001) 5 S.C. (Pt. 11) 146; (2001) 11 NWLR (Pt. 724) 369 at 409- 410.” Per Mahmud Mohammed, JSC. (Pp 13 – 14 Paras F – D).
Also, in the case of A. G., Lagos State v. A. G. Federation & Ors. (2014) LPELR-22701(SC), the Court explained that:
“Abuse of process of Court consists of an improper use of the issue of judicial process or process already issued to the irritation or annoyance of the opponent. Multiplicity of actions which involve the same subject matter amount to abuse of Court and the Court has a duty to stop such abuse. See Okorodudu v. Okoromadu (1977) 3 SC 659 at 681; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188. The list of what constitutes abuse of process of Court is open-ended. It includes raising same issues as in other actions or indeed raising in subsequent action matters which should have been litigated in the earlier action. See Thames Launettes Ltd v. Corporation of the Trinity Home of Deptford Strand (1961) All ER 26 at 32, 33; Akandipe v. Coptors (2000) 78 LRCN 1692 at 1699. It involves lack of good faith in the action. See Federal Republic of Nigeria v. M. K. O. Abiola (1997) 2 NLCR 44.” Per Nwali Sylvester Ngwuta, JSC. (Pp 89 – 89 Paras A – E).
The appellants filed their counter-claim on 06/06/2011, along with their statement of defence. The lower Court, in its ruling, did not hold that the counter-claim filed on 06/06/2011 was an invalid exercise of the rights of the appellants. Thus, to all intents and purposes, a valid counter-claim was filed on 06/06/2011 and was pending before that Court. The only other process, which the lower Court could have found improperly filed, was the subsequent joint statement of defence and counter-claim, filed on 23/05/2016. It was arguably filed without leave of the lower Court and was therefore invalid. If but only for the purpose of argument, the statement of defence and counter-claim, filed by the appellants on 23/05/2016, was filed without leave and therefore invalid, such a process cannot constitute an abuse of the process of the lower Court, because it should have been treated as non-existent and struck out. See Maigoro v. Garba (1999) LPELR-1820(SC) and Ehinlanwo v. Oke & Ors (2008) LPELR-1054(SC). The lower Court described the counter-claim as “an invalid counter-claim.”
Thus, again, for the purpose of argument, since there was an existing valid counter-claim filed on 06/06/2011, the lower Court could not have properly, validly lost its jurisdiction, as it unfortunately claimed, simply because the appellants arguably committed a procedural error of filing a process, subsequent to initiating their counter-claim. There was no loss of jurisdiction and there was still a valid counter-claim before the lower Court. See Famfa Oil Ltd. v. A. G., Federation & Anor. (2003) LPELR-1239(SC). There was no abuse of the process of the lower Court. There was no miscarriage of justice suffered by any party. The lower Court was clearly in error in looking for reasons to dismiss a part-heard counter-claim, because of a process, which was filed, without leave of the Court and that the appellants and their counsel failed to choose which one should be withdrawn and struck out. There was no reason for a choice. The joint statement of defence and counter-claim filed on 06/06/2011 was valid and subsisting, having not been withdrawn by the appellants.
Unfortunately, also, the lower Court admitted in the last paragraph of its ruling quoted above, that it deliberately refrained from giving consideration to all issues presented, in argument by the parties, because of the attitude of the appellants’ counsel, which the lower Court described as “rigid”. The lower Court stated:
“The rigid posture taken by the Respondents and their counsel will make no room for the consideration of the legal effect of the consequential amended statement of defence and counter-claim as argued by all counsel in this case.”
That is not a sound reason, with due respect, for a Court of law to fail to discharge its constitutional duty of adjudication. That is, implicitly, admission of denial of fair hearing unwittingly by the lower Court.
In such unfortunate circumstance, parties and this Court are left to speculate about what undisclosed things or materials, the lower Court did not take into consideration and/or failed to determine, which portrays the decision of the lower Court as incomplete and implicitly unsound, having been predicated on denial of fair hearing, justified with considerations, which are extra legal. The ruling of the lower Court cannot be retained. It has to be set aside.
Where a trial Court has exercised its discretion over a matter, an appellate Court should not interfere on the ground that it might have exercised the discretion differently if it were in a position to do so. However, and in appropriate cases, an appellate Court is entitled to interfere with the exercise of discretion of a trial Court if the appellate Court is satisfied that it is in the interest of justice to do. See Ceekay Traders Ltd Salu v. Egeibon [1994] 6 NWLR (Pt 348) 23 at 41. It is in the interest of justice for this Court to intervene at this point in the appeal. The counter-claim of the appellants should not under any condition, have been dismissed, as ordered by the lower Court. The order of the lower Court was wrong and it occasioned a miscarriage of the justice, to the prejudice of the appellants. It is helpful to recall that Order 5 Rules 1 and 2 of the High Court of Rivers State (Civil Procedure) Rules, 2010 provides as follows:
“1.(1) Where 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 as to time, place, manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularize such steps.
(2) The Judge shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
2.(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before any party applying has taken any fresh step after becoming aware of the irregularity.
(2) An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion.” (Bold font for emphasis).
As it is evident, the respondent did not file any summons or motion on notice, stating grounds of their objection to the validity of the statement of defence and counter-claim filed, on 23/05/2016. The lower Court was therefore in error to have, on its own, found fault with the process, especially when the respondents had already taken steps by participating in the trial before the lower Court, based on the named process. The respondents did not complain, as prescribed by the rules of the lower Court. The irregularly filed (if true) joint statement of defence and counter-claim of 23/05/2016, was not invalid and did not constitute abuse of the process of Court. Parties had engaged in trial of the counter-claim before the lower Court before the respondents filed their motion on 18/01/2018, directed at a limited purpose, which the lower Court expanded unjustifiably.
There is merit in the appeal. The appeal succeeds. The ruling of the lower Court, dated 10/04/2018, dismissing the counter-claim of the appellants is hereby set aside. The motion on notice filed by the respondents, on 18/01/2016, is hereby dismissed for lacking merit. The counter-claim of the appellants is hereby restored on the cause list of the lower Court, and is, also, hereby remitted to the Chief Judge of Rivers State, for assignment to another Judge of that High Court, other than Justice S. O. Benson, with the status of accelerated hearing hereby conferred on the suit.
The respondents shall pay cost in the sum of N250,000.00 (Two hundred and fifty thousand Naira) to the appellants.
PAUL OBI ELECHI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother Olabode Abimbola Adegbehingbe, JCA.
I agree with my Lord’s reasoning and conclusion that the appeal has merit and therefore succeeds and is allowed. Accordingly, the judgment of the trial Court is hereby set-aside.
Appeal allowed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment just delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA was served on me. I read it and satisfied with the determination of same.
I also found merit in the appeal and it succeeds. I abide by the consequential orders made by my noble Lord, including the award of costs to the Appellants.
Appearances:
Stanley Pricewill, Esq., with him, D. N. Adamgbo, Esq. For Appellant(s)
No representation For Respondent(s)
