THE REGISTERED TRUSTEES OF INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. KETSON KOMPLEX INTERNATIONAL LIMITED & ANOR (2015)

THE REGISTERED TRUSTEES OF INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. KETSON KOMPLEX INTERNATIONAL LIMITED & ANOR

(2015)LCN/8023(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of November, 2015

CA/B/260/2013

RATIO

APPEAL: GROUNDS OF APPEAL; WHETHER A GROUND OF APPEAL THAT RAISES ISSUE OF JURISDICTION IS CAPABLE OF SUSTAINING THE APPEAL

What’s more, it’s obvious, that the grounds of appeal raise issue of jurisdiction, apart from the alleged breach of fair hearing, which in itself is capable of sustaining the appeal. See CCB (NIG.) PLC v. AG OF ANAMBRA STATE (1992) 8 NWLR (Pt. 261) 528; ABUBAKAR v. YARADUA (2008) 4 NWLR (Pt. 1078) 465 @ 495. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

APPEAL: WHETHER AN APPEAL FROM INTERLOCUTORY DECISION OF A HIGH COURT TO THIS COURT ON GROUNDS OF LAW ALONE IN ANY WAY REQUIRE LEAVE OF COURT

It’s equally a well settled principle, that an appeal from an interlocutory decision of a High Court to this court on grounds of law alone does not in any way require leave of Court. See Section 241 (1) (b) of the 1999 Constitution (supra), to the following effect-
241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right
(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings; See BRIT-AM INS. CO. LTD. v. EDEMA-SILLO (1993) 2 NWLR (Pt.277) 567 @ 575-576. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

PRACTICE AND PROCEDURE: WHEN IS A PROCESS HELD TO BE INCOMPETENT AND THE EFFECT OF A PROCESS THAT IS HELD TO BE INCOMPETENT

Indeed, the law is trite, that where a process is held to be incompetent for obvious non-compliance with rules of court, the only viable order that could be made is that of striking out, and not dismissal of the process. See EDEM v. CANNON BALL LTD (1998) 6 NWLR (Pt. 553) 298 @ 311 paragraph B. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; THE IMPORTANCE OF FAIR HEARING

It’s indeed trite, that fair hearing is so fundamentally crucial to the rule of law vis-a -vis administration of justice, thus it ought not to be compromised or whittled down. Any failure to observe the fundamental doctrine of fair hearing, as cherishingly enshrined in Section 36 (1) of the 1999 Constitution, renders the entire proceedings of the court a nullity. See FRN v. IFEGWU (2003) 15 NWLR (Pt. 842) 113; OKONKWO v. OKONKWO (1998) 10 NWLR (Pt. 571) 554; NWOKORO v. ONUMA (1990) 3 NWLR (Pt. 136) 22. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICE; THE EFFECT OF THE DENIAL OF JUSTICE

I think, there is a need to reiterate the trite principle, that delay of justice is bad, but denial of justice is undoubtedly worse and outrageous. This is absolutely so, because the denial of justice inflicts excruciating pain, suffering and untold hardship upon those who rely on impartial administration of justice. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

APPEAL: INTERFERANCE; WHETHER AN APPELLATE COURT OUGHT TO INTERFERE WITH THE DISCRETION OF A TRIAL COURT

It is a trite fundamental doctrine,that generally, an appellate court ought not to interfere with the exercise of discretion of a trial court in matters within the purview of the discretionary power thereof. However, where it’s so manifestly evident that the trial court had acted under a mistake of law, or incomplete disregard of some fundamental principles, or was under a misapprehension of facts, or had taken irrelevant factors into consideration, it behoves the appellate court to interfere and set it aside. See CEEKAY TRADERS LTD v. GENERAL MOTORS COY LTD (1992) LPELR 834 (SC) per Karibi-Whyte, JSC @ 34 paragraphs B C. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

THE REGISTERED TRUSTEES OF INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS Appellant(s)

AND

1. KETSON KOMPLEX INTERNATIONAL LIMITED
2. IDEHEN FESTUS OHANMU Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal was filed on April 5, 2013 against the ruling of the Edo State High Court, Benin Judicial Division, delivered on March 8, 2013 in Suit No. B/188/2004. By the said ruling, the Appellant’s application seeking leave to amend the statement of defence to counter claim against the plaintiff was dismissed by the lower court.

On March 24, 2004, the Respondent instituted the said suit in the court below vide a Writ of Summons. By the Statement of Claim thereof, the Respondent sought against the Appellant the following reliefs:
a. A declaration that the Plaintiff is the lawful and rightful owner of all that building known and situate at No. 96A and 96B Uselu/Lagos Road, Benin City virtue of an Agreement Of Transfer dated 03/04/96 and registered as No. 28 at page 28 in Volume 847 of the Lands Registry in the office at Benin City.
b. An order directing the Defendant to vacate and deliver possession to the Plaintiff of all that building and premises known and situate at No. 96A and 96B Uselu/Lagos Road, Benin City. The statutory notice to quit having

expired.
c. One million naira as damages for trespass committed by the defendant by holding over the said building. Upon expiration of the statutory notice of quit.
d. An order of perpetual injunction restraining the defendant, its agents, servants and/or privies trespassing on the building known and situate at No. 96A and 96B Uselu/Lagos Road, property of the Plaintiff.

On October 9, 2012, the Appellant filed in the court below a motion on notice seeking the following reliefs:
(a) Leave to further further amend the 1st Defendant/Applicant’?s Statement of defence and counter-claim in the manner formulated and underlined in black in the further further amended statement of defence and counter-claim attached to the affidavit in support of motion as Exhibit “A?”
(b) An order deeming the said further further amended statement of defence and counter-claim as duly filed and served the appropriate filing fees having been paid.
(c) An order allowing the necessary endorsement in line with Order 24 Rule 6 of the Edo State High Court Rules to be made in open court.
GROUNDS UPON WHICH THE APPLICATION IS MADE
The

Applicant has discovered some errors in the statement of defence and counter claim which it deems necessary to amend so that the case can be determined effectively and effectually.

The said motion was vehemently opposed by the Respondent. The learned counsel filed their respective written addresses, and orally addressed the court on 08/02/13. Whereupon, the court below delivered the said ruling to the conclusive effect, thus:
The amendment sought in the counterclaim can only be effective if the amendments sought in statement of defence are allowed because it is the facts in the statement of defence that the 1st defendant will rely on to prove his counter claim.
In the final analysis, the amendment sought in the statement of defence disallowed and counterclaim are disallowed for the reasons aforesaid and the motion itself is incompetent by reason of non-compliance with the High Court Civil Procedure rules. Either way the motion lacks merit and is accordingly dismissed.
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The notice of appeal, filed on 05/4/13, was predicated upon a total of six grounds. The Record of Appeal was transmitted to this court on 09/5/13. The Appellant?s brief

was filed on 27/6/13. The 1st Respondent’s brief was filed on 27/6/14.

On 28/9/2015, when the appeal finally came up for hearing, both learned counsel to the Appellant and 1st Respondent adopted their respective briefs of argument, thus resulting in reserving the Judgment.

The Appellant’s brief filed in question, spans a total of 13 pages. At pages 3-4 of the said brief, two issues have been raised, viz:
(1) Whether the learned trial Judge was right in dismissing the application of the Appellant having held that the application was incompetent for offending the provision of Order 24 Rules 2 , 4 and 5 of the Edo State High Court (Civil Procedure) Rules, 2012 .
(2) Whether the right to fair hearing of the Appellant was not breached by the dismissal of its application to further amend its Statement of Defence and counterclaim having regard to all the surrounding circumstances of the matter.

Regarding Issue No. 1, it was submitted that the court below was wrong in dismissing the application having held that same was incompetent. The reason being that in law, an incompetent action would only be struck out, and not

dismissed: EDEM v. CANNON BALL LTD (1998) 6 NWLR (Pt. 553) 298 @ 311 paragraph B.

Further submitted, that the court below was also wrong in holding , as it did, that the said application was incompetent. The reasons being that (i) the 2nd Respondent did not file any written addresses and/or counter affidavit in opposition to the application, thus cannot be to complain. See Order 37 Rule 2 High Court of Edo State (Civil Procedure) Rules, 2012; JONASON TRIANGLE LTD v. CM & PARTNERS LTD (1999) NWLR (Pt. 588) 555 (CA). (ii) That the 2nd Respondent took step in the proceedings, and ought not to be allowed to raise only irregularity. See BAJOGA v. GOVT. FRN (2008) 1 NWLR (Pt. 1067) 85 @ 114 ? 115.

It was contended, that had the lower court considered the entire Civil Procedure Rules of Edo State, it should not have refused the application. See TRANS BRUDGE CO. LTD v. SURVEY INT. LTD (1986) 4 NWLR (Pt. 37) 576; OKOTIE-EBOH v. MANAGERS (2004) 18 NWLR (Pt. 905) 242 @ 290.

The court is urged to hold that the whole claim is contaminated and liable to be struck out. See NDIC v. GOVERNING COUNCIL I.T.F. (2012) 9 NWLR (Pt. 1305) 252 @ 276;

SOYANYA v. ONADEKO (2000) 11 NWLR (Pt. 677) 34 @ 53; IDAAYOR v. TIGIDAM (1995) 2 NWLR (Pt. 377) 359; ACB PLC v. EAGLE SUPER PACK NIG. LTD (1995) 2 NWLR (Pt. 379) 509.

The Court is urged to resolve the said issue in favour of the Appellant.
The 2nd Issues argued at pages 7-11 of the brief. Its submitted, inter alia, that the court below was wrong in not allowing the Appellant to “further further amend” its statement of defence and counterclaim. The reason being that the Appellant has the unfettered right under the constitution to approach the courts to ventilate whatever grievance it has. And this it did so by filing the counterclaim, which to all intent and purposes, is an independent action. See OOMF LTD v. NACB LTD (2008) 12 NWLR (Pt. 1098) 412 @ 428; ZENITH INTL BANK LTD v. VICKDAB & SONS (NIG) LTD (2011) 2 NWLR (Pt. 7231) 337; OJAH v. OGBONI (1976) 4 SC 09; FAYEMI v. OLORUNFUNMI (1998) 1 NWLR (Pt. 534) 523 @ 530 ? 531.

It was equally contended, that fair hearing is so crucial and fundamental that it cannot be compromised on any amount, and failure to observe it in by proceedings renders same null and

void: FRN v. IFEGWU (2003) 15 NWLR (Pt. 842) 113; OKONKWO v. OKONKWO (1998) 10 NWLR (Pt. 571) 554; NWOKORO v. ONUMA (1990) 3 NWLR (Pt. 136) 22.

That the lower court having been in error in dismissing the application in question, the court is urged to resolve the Issue No. 2 in favour of the Appellant.

On the whole, the court is urged to allow the appeal, set aside the decision of the lower court, and transfer the case to another Judge for hearing and determination thereof on the merits.

On the other hand, the 1st Respondent’s brief spans a total of 30 pages. At pages 3-12 of the said brief, a Preliminary Objection is raised and argued, to the effect that the appeal is incompetent based on four grounds. The notice of interlocutory appeal was filed on 05/4/13, well over 28 days after the delivery of the ruling on 08/03/13. Secondly, no leave was sought and obtained prior to the filing of the said notice of appeal. Thirdly Issues 1 & 2 are distilled from the incompetent Grounds 1, 2, 3, 4, & 5 of the Notice of Appeal. Fourthly, Section 24 (2) of the Court of Appeal Act, 2004, an interlocutory appeal is required to be filed

within 14 days of the delivery of the decision being appealed against.

It was submitted, that the aforesaid provisions of the Act are mandatory. See TUKUR v. GOVT GONGOLA STATE (1996) 5 NWLR (Pt. 447) 1861; NWABUEZE v. NWORA (2005) 8 NWLR (Pt. 926) 1, et al.

On the whole, the court is urged to uphold the objection, and accordingly strike out the Notice of Appeal.

The Appellant?s Reply Brief was filed on 12/8/14. Most specifically, pages 1 -3 of the said Reply Brief relate to the Preliminary Objection raised and argued by the 1st Respondent at pages 3 ? 13 of the brief thereof.

DETERMINATION OF THE RESPONDENT?S PRELIMINARY OBJECTION:
On September 28, when this appeal finally came up for hearing, the 1st Respondent?s learned counsel H.G. Erhabor Esq. adopted the argument regarding the preliminary objection, filed on 27/6/14, and urged upon the court to strike out the instant interlocutory appeal for being incompetent.
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On the part thereof, the learned senior counsel to the Appellant, Chief H.O. Ogbodu, SAN adopted the reply to the preliminary objection, filed on 12/8/14, and urged the court to dismiss the

preliminary objection.

I have amply considered the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the record of appeal, as a whole.

It is the submission of the Respondent?s learned counsel that the instant interlocutory appeal is ?Irregular, incompetent, invalid, not properly constituted, null and void?. The three grounds upon which the preliminary objection is predicated are to the effect, thus:
1. Appellant?s appeal is a challenge against the interlocutory decision of the trial
2. Appellant?s Notice of Appeal was filed over 28 days from the date the ruling was delivered instead of 14 days as provided in the Court of Appeal Act, 2004.
3. Grounds 1, 2, 3, 4 and 5 and their particulars are complaints against interlocutory orders in respect of which Appellant requires leave to appeal within 14 days. Appellant did not seek and obtain leave as required by Section 242 of 1999 Constitution.
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Contrary to the Appellant?s contention, the instant appeal is indeed an interlocutory one as the vexed ruling of the lower court has not resulted in finally

determining the rights of the parties in the suit before it on the merits.

However, the above view, notwithstanding, it’s obvious that the grounds of appeal raise the issue of [breach] of fair hearing. Therefore, by virtue of the provisions of Section 241 (1) (d) of the 1999 Constitution as amended, the appeal is as of right and no leave of either the court below or this court is required before it could be filed. Indeed, it’s a trite and fundamental principle, that an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in-
”(d) decisions in any civil or criminal proceedings as to whether any of the provisions of Chapter IV of this Constitution has been is being or is likely to be contravened in relation to any person.”

Thus, grounds 1, 2 & 3 of the preliminary objection, and the submissions thereupon, are deemed misconceived, and accordingly hereby discountenanced.
DETERMINATION OF THE APPEAL ON THE MERITS:
Having amply considered the submissions of the learned counsel contained in the respective briefs of argument thereof, I am obliged to adopt the two issues raised by the Appellant at pages 3-4 of the brief thereof in the determination of the appeal.
ISSUE NO. 1:
The first Issue raises the vexed question of whether or not the

lower court was right in dismissing the Appellant’s application, having held that the same was incompetent for offending the provision of Order 24 Rules 2, 4 and 5 of the Edo State High Court (Civil Procedure) Rules, 2012.

Let me once more, copiously allude to the finding of the lower court at page 102 of the Record, to the following conclusive effect:
In the final analysis, the amendment sought, in the statement of defence disallowed and counter claim are disallowed for the reasons aforesaid and the motion itself is incompetent by reason of non compliance with the High Court Civil Procedure Rules. Either way the motion lacks merit and is accordingly dismissed.

Undoubtedly, the finding of the lower court is to the conclusive effect that the said motion was incompetent, and that it also lacks merit. Yet, in its own wisdom, the lower court deemed it expedient and dismissed the vexed motion.

I would uphold the Appellant’s submission, to the effect that the lower court has erred in law when it dismissed the said motion instead of striking out same. Indeed, the law is trite, that where a process is held

to be incompetent for obvious non-compliance with rules of court, the only viable order that could be made is that of striking out, and not dismissal of the process. See EDEM v. CANNON BALL LTD (1998) 6 NWLR (Pt. 553) 298 @ 311 paragraph B.

Furthermore, it would be correct to say, that the court below has erred in holding that the Appellant’s motion in question was incompetent, for some obvious reasons. Firstly, the 2nd Respondent did not file any written address and/or counter affidavit in opposition to the said application. Thus, the 2nd Respondent cannot be heard to now complain. Order 37 Rule 2 of the High Court of Edo State (Civil Procedure) Rules, 2012 (supra) is very much emphatic on that point:
2. Application by motion
(1) Where by these Rules, any application is authozised to be made to the Court or a Judge in chambers or a Registrar, such application may be made by motion which may be supported by affidavit and shall state under what Rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.
(2) Where the other party intends to oppose the application, he shall within 7 days

of the service on him of such application, file his written address and may accompany it with a counter- affidavit.
See also JONASON TRIANGLE LTD v. CM & PARTNERS LTD (1999) 1 NWLR (Pt. 588) 555 A.

Two, the 2nd Respondent had already taken steps in the proceedings at the trial court, therefore ought not to be allowed to raise any irregularity. The reason being that any objection to irregularity of a process ought to be taken up timeously i.e. prior to taking steps in the proceedings. See BAJOGA v. GOVT FRN (2008) 1 NWLR (Pt. 1067) 85 @ 114 ? 115; TRANS BRIDGE CO. LTD v. SURVEY INT. LTD (1986) 4 NWLR (Pt. 37)576; OKOTIE ? EBOH v. MANAGER (2004) 18 NWLR (Pt. 905) 242 @ 290; NDIC v. GOVERNING COUNCIL I.T.F (2012) 9 NWLR (Pt. 1305) 252 @ 276; SOSANYA v. ONADEKO (2000) 11 NWLR (Pt. 677)34 @ 53; IDAAYOR v. TIGIDAM (1995) 2 NWLR (Pt. 377) 359; ACB PLC v. EAGLE SUPER PACK NIG. LTD (1995) 2 NWLR (Pt. 379) 590.
Most particularly, in BAJOGA v. GOVT FRN (supra), this court aptly held thus:
An application to set aside for irregularity any proceedings any step taken in any proceedings or any document, judgment or order therein

shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh steps in the proceedings with leave of court by any interlocutory application, but the application may be raised in the defence. Per Adekeye, JCA (as the learned Lord then was) @ 35 paragraphs D-F.

In the circumstance, the Issue No.1 is resolved in favour of the Appellant.
ISSUE NO. 2:
The second Issue raises the question of whether or not the right to fair hearing of the Appellant was breached by the dismissal of the application seeking to ?further further? amend the statement of defence and counter claim thereof.

Without any much ado, the resolution of the second issue is equally to be in favour of the Appellant. As aptly postulated by the Appellant, the law is trite, to the effect that the Appellant has unfettered right to approach the courts to ventilate the grievances thereof. In the instant case, this is exactly what the Appellant has done by filing the said application in seeking to amend the statement of defence with a view to filing the counter claim thereof, which for all intent and purposes

is an independent action: OOMF LTD v. NACB LTD (2008) 12 NWLR (Pt. 1098) 412 @ 428; ZENITH BANK LTD v. VICK DAB & SONS (NIG.) LTD (2011) 2 NWLR (1231) 337; OJAH v. OGBONI (1976) 4 SC 69; FAYEMI v. OLORUNFEMI (1998) 1 NWLR (Pt. 534) 523 @ 530 ? 531 .

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?It is for this reason that when a case is not fought and heard on merits, the order to be made must be one that does not shut out a party permanently from obtaining justice.? See CEEKAY TRADERS LTD v. GEN. MOTORS COY LTD (supra) per Olatawura, JSC @ 47 paragraphs B ? E.

Hence, having effectively resolved both issues in favour of the Appellant, there is no gainsaying the fact that the instant appeal is grossly meritorious, and it?s hereby allowed by me.

It is a trite fundamental doctrine, that generally, an appellate court ought not to interfere with the exercise of discretion of a trial court in matters within the purview of the discretionary power thereof. However, where it?s so manifestly evident that the trial court had acted under a mistake of law, or incomplete disregard of some fundamental principles, or was under a misapprehension of facts, or had taken irrelevant factors into consideration, it behoves the appellate court to interfere and set it aside. See CEEKAY TRADERS LTD v. GENERAL MOTORS COY LTD (1992) LPELR 834 (SC) per Karibi-Whyte, JSC @ 34 paragraphs B ? C.
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Consequently, the

ruling of the Edo State High Court, delivered by E.A. Edigin, J; on March 8, 2013 in Suit No. B/188/2004, is hereby set aside. The said suit is hereby remitted to the court below for the State Chief Judge to reassign same to another Judge for trial denovo on the merits.

The Appellant shall be entitled to N50,000.00 as costs against the Respondent’s.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead judgment of my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A, just delivered and I agree with my Lord that it would be in the interest of justice to set aside the ruling of the lower court delivered on 8/3/2013 in Suit No.B/188/2004. The said suit is hereby remitted to the Lower Court for the State Chief Judge to reassign same to another judge for trial denovo on the merits.
I abide by the order on costs made in the said lead judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Learned Brother I. M. M. SAULAWA, JCA where he set aside the Ruling of the Edo State high Court delivered on the 8th day of March, 2013 in Suit No: B/188/2004. My Lord has also

discountenanced the preliminary objection of the 1st Respondent as being misconceived.

The salient points raised in the Appellant’s brief are whether the Lower Court was right in dismissing the Appellant’s application for being incompetent and also for beach of fair hearing. The lower court had dismissed the Appellant’s application to further amend its statement of defence. Appellant’s counsel opined that the trial judge was wrong to have dismissed the application as opposed to striking out the said motion. He further stated that the action of the trial judge was tantamount to a breach of fair hearing.
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The question here is should an incompetent application be dismissed rather than be struck out? In the case of MULTICHOICE NIG. LTD v. HON. JERRY AKPAN 2014 LPELR 22681, the Court of Appeal makes a distinction between striking out of an action by a court and dismissal. It is however trite that an order of dismissal ordinarily means disposing of a matter on the merit finally as between the parties and subject only to an appeal and cannot in the absence of statutory provisions be re-opened or reviewed by the court that made it. See also OKEKE v. MODU (1969)

470 ? 122 @ 127.

It is my ardent view that the Lower Court erred in dismissing the Appellant’s application in that regard thus barring any chance of the Appellant revisiting the issue. Where a process is deemed incompetent, the order to be made is that of striking out to give the applicant a second bite at the cherry. I also agree with the reasoning that striking out of the said application smacks of lack of fair hearing on the part of the trial court.
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In the light of all of the above, and also the more elucidating reasoning and conclusions in the lead judgment, I too agree that this appeal is meritorious. Accordingly, the ruling of the Edo State High Court delivered on the 8th day of March, 2013 in Suit No.:B/188/2004 is set aside. The suit is consequently remitted to the court below for re-assignment by the Chief Judge to another judge for trial de novo on the merits.

Appearance
DR. A Prosper, Chief H.O. For Appellant.
OGBODU (SAN) with
I. IKPONMWONSA (MISS)

H.G. ERHABOR EMMANUEL For Respondents , OKONKWO with him ABULIMEN AKHERE

Appearances

Dr. A. Prosper, Chief H. O. Ogbodu (SAN) with I. Ikponmwonsa (Miss)For Appellant

AND

H. G. Erhabor, Emmanuel Okonkwo with him Abulimen AkhereFor Respondent