CHUKU v. KALIO

…………………….A…………………….

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Ruling of the High Court of Rivers State, Port Harcourt Judicial Division, holden at Port Harcourt A.I. IYAYI-LAMIKANRA J. (now CJ) presiding delivered on 26th January, 2016 in Suit No. PHC/578/2015 wherein the learned trial Judge tersely held on pages 51-52 of the record of appeal as follows: –
Having perused the counter-affidavit of the defendant, I find that the claimant cannot commence this suit by way of Originating Summons for possession. Therefore, this suit is incompetent and same is hereby dismissed.
This ruling applies to suits Nos. PHC/582/2015, PHC/577/2015, PHC/579/2015, PHC/580/2015, PHC/581/2015, PHC/584/2015 and PHC/583/2015 mutatis mutandis.

This decision aggrieved the Claimant so he filed a Notice of Appeal dated 9th February, 2016 containing five grounds of appeal which shorn of their particulars, read as follows: –
GROUNDS OF APPEAL:
1: The learned trial Judge misdirected itself (sic) in law when it held that the Claimant cannot commence this suit by originating summons for possession without more.

2: The learned trial Judge erred in law when it dismissed the entire action of Claimant/ Appellant for being incompetent having been commenced by originating summons for possession.
3: The learned trial Judge erred in law by relying and basing her decision/ruling on the named Defendant/Respondent counter affidavit and or other processes filed in Court which had no seal and stamp of the Nigeria Bar Association (NBA) affixed thereon.
4: The learned trial Judge erred in law by applying the ruling in this suit to suit no: PHC/582/2015, PHC/581/2015, PHC/577/2015, PHC/579/2015, PHC/583/2015, PHC/580/2015, PHC/584/2015.
5: The learned trial Judge erred in law for not making an order for possession in favour of the Claimant/Appellant.
RELIEFS SOUGHT FROM THE COUNTER APPEAL:
An Order allowing the appeal, setting aside the decision/ruling of the learned trial Judge and an Order for possession entered by this Court in favour of the Claimant/Appellant. (pages 54-54 of the record of appeal).
The record of appeal was compiled and transmitted to this Court on 3/5/2016. The Appellant’s brief was settled by the Appellant. It was filed on 11/05/2016. The Respondent’s brief dated 10/07/2016 filed on 12/07/2016 was deemed as properly filed and served before this Court on 25/04/2017. It was prepared by J.H. IGBIKIBERESIMA Esq. The Appellant filed a reply brief on 04/08/2016.
However, the Appellant transmitted Additional Records on 17/11/2017 which we deemed as properly compiled and transmitted on 10/04/2018. It contained the record of proceedings of the lower Court from 28/10/2015 to 26/01/2016 when this suit was dismissed (pages 58-71 of the Additional Record of Appeal). The Respondent filed a Notice of Preliminary Objection on 20/07/2016. The grounds of the objection are as follows: –
1: Issue no. 2 is an issue that was neither raised nor duly canvassed at the lower Court but in the absence of the requisite leave of this Hon. Court, same is being canvassed for the first time in the instant appeal and thus incompetent.
2: The appellant having failed to affix a seal on any of his process is not competent to raise the issue of failure to affix a stamp and having regard to Order 10 Rule 1, Rules of Professional Conduct for Legal Practitioners.
Learned counsel to the Respondent argued their preliminary Objection on pages 2 to 3 of their Brief of Argument, while the Appellant replied in their reply Brief.
The brief fact that led to filing this appeal are that the Appellant as Claimant filed an ORIGINATING SUMMONS FOR POSSESSION dated 13/08/2015 and a 10 paragraphs Affidavit in Support of Originating Summons for Possession deposed to by the Claimant now Appellant. Attached to the affidavit are copies of the following documents: –
1: Probate issued in respect of the administration of the personal property of one Chief Friday Chuku, to Hon. Justice F.N.N. Ichoku (Rtd) and Chizoba Atu Esq (pages 6 -8 of the Records).
2: Last Will and Testament of Chief Friday Chuku (pages 9-16 of the Records)
3: Power of Attorney appointing the Appellant as lawful Attorney and Agent over the properties of Chief Friday Chuku. The Donors of the power of Attorney are the Executors/Trustees of the estate of late Chief Friday Chuku. (pages 17-18 of the Records).
The Defendant/Respondent filed a Notice of Preliminary Objection objecting to the hearing of the suit on the grounds that: –
1: The Originating Summons is incompetent as it was not signed and stamp by the Registrar of the lower Court pursuant to Order 6 R. 2(1), (2) and (3) of the Rules of the lower Court. But was purportedly filed by a Director contrary to Order 6 R. 2 -3 of the Rules of the lower Court.
2: No personal service of the Originating Summons was effected on the Defendant.
3: The suit is an abuse of Court process having regard to the pending consolidated High Court Suits Nos: PHC/1645/2001 Atu V Chuku; and PHC/275/2002 Chuku V Hon. Justice Felix N.N. Ichuku & Ors. on the same subject matter that involves the Claimant who is one of the beneficiaries of the last Will of Chief Friday Chuku, deceased.
4: The Power of Attorney relied upon by the Claimant was never issued by any of the purported Donors and Oath subscribed thereon was fraudulently procured since none of the persons named as Donors ever appeared before any Notary Public to subscribe thereto or make the Oath expressed thereon.
5: Matter set out in the Writ of Summons or in support

…………………….B…………………….

thereof, inclusive of the affidavits filed by the Claimants does not disclose any basis for having the instant matter fixed as a vacation matter.
6: Issuance and use of Power of Attorney relied upon is contrary to the provisions of clauses 3, 3u and 3x of Last Will of Chief Friday Chuku which specifically directed that the handling of legal matters arising from or pertaining to the said Will be done by the chambers of Chizoba Atu Esq. and is not from such chambers but a beneficiary of the said Will and cannot act in such dual capacity.
7: The Power of Attorney offends the legal position that delegate power shall not be competent to be delegated (DELEGATUS NON POTEST DELEGARE). The purported exclusion of this principle renders the legal position of the Claimant a nullity. (see pages 20-25 of the Records)
A 19 paragraphs counter affidavit deposed to by one Kenneth Didi Chuku accompanied the preliminary Objection on pages 34 to 41 of the record of appeal. The claimant also deposed to a Further and Better Affidavit in response to the 1st Defendant???s counter affidavit containing 16 paragraphs 42 43 of the Records and Reply on Points of Law dated 03/09/2015 (pages 44 ??? 48 of the Records).
The Ruling of the learned trial Judge is on pages 51-52 of the records. Because of its brevity it bears repeating: –
The claimant commenced this suit by way of originating summons for possession which falls under Order 53 of the High Court (Civil Procedure) Rules. Order 53. 1(1) (a) (b) (c) (d) provide as follows: –
This Order shall not apply where the person in occupation of the land is
(a) a tenant or (b) a tenant holding over after termination of his tenancy or (c) a licensee of the owner or person entitled to possession or (d) a person who had the consent of the predecessor-in- title of the person who is entitled to possession.
Having perused the counter-affidavit of the defendant, I find that the Claimant cannot commence this suit by way of originating summons for possession. Therefore, this suit is incompetent and same is hereby dismissed.
This ruling applies to suits No. PHC/582/2015, PHC/577/2015, PHC/579/2015, PHC/580/2015, PHC/581/2015, PHC/584/2015 and PHC/583/2015 mutatis mutandis.
That is the entire Ruling by the learned trial Judge that gave rise to filing this appeal.
In his brief of argument, the Appellant formulated 4 issues from the 5 grounds of appeal as follows: –
1: Whether the learned trial Judge was right in her decision/ruling of dismissing the suit on the basis that the suit was incompetent having been commenced by way of originating summons for possession.
2: Whether the learned trial Judge in determining the suit was right in relying on the counter affidavit and other processes of the defendant filed by counsel which had no stamp and seal of the Nigerian (sic) Bar Association (NBA) affixed thereon?
3: Whether the learned trial Judge without an order for consolidation of suit was right in applying the decision/ruling suit not PHC/582/2015, PHC/581/2015, PHC/577/2015, PHC/579/2015, PHC/583/2015, PHC/580/2015, PHC/584/2015 to the suit herein appeal?
4: Whether the Appellant is entitled to an Order for possession to the subject matter of the suit by the Court.
Learned counsel to the respondent adopt the Appellant’s issues subject to the failure or dismissal of his Preliminary Objection.
NOTICE OF PRELIMINARY OBJECTION:
In his submission while arguing his Notice of Preliminary Objection; learned counsel to the Respondent submitted that his grouse is with issue 2 canvassed by the Appellant and argued on paragraphs 4.0 to 4.3 of the Appellants brief. That he is objecting to the said issue 2 on the following ground: –
(1) Issue No. 2 is an issue that was neither raised nor duly canvassed at the lower Court but in the absence of the requisite leave of this Honourable Court, same is being canvassed for the first time by the instant appeal and thus incompetent.
It is the contention of the Respondent that since the Appellant did not raise and/or canvassed this point or issue at the lower Court but has now raised and canvassed same for first time in this appeal without leave of this Court it is prayed that issue 2 and the arguments canvassed therein by the Appellant be struck out for want of competence. Cited: LAGOS BULK PURCHASE CORPORATION V PURIFICATION TECHNIQUE (2013) 7 NWLR {Pt. 1352} 82. Learned counsel urged the Court to strike out the offending issue No. 2.
While replying to the Preliminary Objection, learned counsel to the Appellant submitted that the preliminary objection embedded in the Respondent’s brief of argument is incompetent for being not in compliance with the provision of Order 10 Rule 1 of the Court of Appeal Rules, 2011. Cited also the following authorities: DADA V DOSUNMU (2006) LPELR 909 (SC) Pg. 16-17 paragraphs F-B; Pg. 17, paragraphs E -F; GARBA V MOHAMMED & ORS (2016) LPELR 40612 (SC) Pg. 21 paragraphs A – C. That ground (i) of the preliminary objection is a general rule while the said Issue 2 is a jurisdictional issue which falls under the exceptions to the general rule. That the law is trite that such jurisdictional issue whether it was raised before the lower or not, same can be raised on appeal for the first time with or without leave, that even this Court can raise the issue suo motu.

…………………….C…………………….

That during adoption of processes before the lower Court learned counsel to the Appellant raised the issue as stated in Issue 2 but the presiding judge ignored the point. That notwithstanding, the said issue 2 can be raised for the first time on appeal without leave since it challenges the jurisdictional competence of the learned trial Judge to take cognizance of documents like the processes filed by the Respondent at the lower Court without the fulfillment of the precondition of affixing the Nigeria Bar Association (NBA) stamp and seal as provided by a subsidiary legislation. Cited: ONI V CADBURY NIGERIA Plc (2016) LPELR 26061 (SC) Pgs 9 ?12 paragraphs A -A; YAKI V BAGUDU (2015) LPELR 25721 (SC) Pgs 7 -8 paragraphs E -A; Rule 10(1), (2) and (3) of the Rules of Professional Conduct for Legal Practitioners, 2007. Learned counsel urged the Court to dismiss the Respondent’s Preliminary Objection for lacking in merit and substance.
FINDINGS ON NOTICE OF PRELIMINARY OBJECTION:
Issue 2 canvassed by the Appellant is as follows: –
Whether the learned trial Judge in determining the suit was right in relying on the counter affidavit and other processes of the defendant filed by counsel which had no stamp and seal of the Nigerian Bar Association?
I have carefully considered the submission by learned counsel while arguing this issue. The question that arose is whether filing of process that bears no stamp and seal of counsel goes to jurisdiction of the Court before which they were filed? This question was resolved by the Apex Court in SENATOR BELLO SARKIN YAKI (RTD) & ANOR V SENATOR ATIKU ABUBAKAR BAGUDU & ORS (2015 LPELR25721 (SC) per NGWUTA JSC on pages 6-8 paragraphs G -A as follows: –
What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that:..the document so signed or filed shall be deemed not have been properly signed or filed. It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See OKAFOR V NWEKE (2007) 10 NWLR {Pt. 1043} SC 521 cited by the learned silk for 2nd respondent/cross appellant. The document, in terms of the rule, is deemed not have been properly signed or filed, but not incompetent as the 2nd respondent assumed. It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court.
In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done the Court cannot take cognizance of a document not properly filed and the filing not regularized.
Upon considering the holding by the Supreme Court on legal document not sealed by seal of learned counsel who filed same before a Court, that it is not null and void or incompetent but it is deemed not to have been properly signed or filed as the condition precedent to its proper signing and filing had not been met. In this Court on several occasions when the issue arose we stood down the appeal and allow counsel to go to the registry to put his seal on all the processes he filed and sign them. Where he was not issued a seal he can display to the Court a receipt of payment of his practicing fee indicating that he is entitled to be issued his seal and that will suffice. It has nothing to do with jurisdiction of the Court to hear the suit, neither is it an issue that can be made a subject of appeal. In view of the foregoing it is my finding that the notice of Preliminary Objection has no basis and same is hereby dismissed. Accordingly, issue 2 formulated by the Appellant is a storm in a tea cup since the Supreme Court held that the process so filed without a stamp or seal of the Nigeria Bar Association (NBA) are deemed not to have been properly signed and filed but they are not null and void or incompetent. Issue 2 is therefore tantamount to making a mountain out of a mole hill. It is hereby struck out.
I will determine this appeal mainly on issue 1 which is: –
Whether the learned trial Judge was right in her decision/ruling of dismissing the suit on the basis that the suit was incompetent having been commenced by way of originating summons for possession?
While arguing this issue learned counsel to the Appellant submitted that he, as a lawful attorney to the Executors/Trustees of the Estate of Chief Friday Chuku in accordance with Order 53 of the Rules of the lower Court 2010 filed a suit for summary proceedings for possession of property which belongs to the Estate of the said Chief Friday Chuku now being occupied by the Respondent/Defendant and others without consent or authority of the Executors/Trustees of the Will and Estate of Chief Friday Chuku. That he commenced the proceedings by way of originating summons for possession in Civil Form 38 and an affidavit setting out specific facts incompliance with Order 53 Rules 2;3; 4(1) of the High Court (Civil Procedure) Rules of Rivers State, 2010. That Order 53 does not provide a new remedy but rather a new procedure for the recovery of possession of land in wrongful occupation by trespassers.

…………………….D…………………….

Learned counsel submitted that the application of Order 53 (supra) is narrowly confined to the Particular circumstances described in Rule 1, which is to claim for possession of land occupied solely by a person or persons that entered into or remained in occupation without licence or consent of the person in possession or of his predecessor. That the Order applies where the occupier entered into occupation without licence or consent. That the Order also applies to a person who entered into possession of land with a licence. But has remained in occupation without licence. Cited: OKOLI V GAYA (2014) LPELR 23067 (CA) page 26-28 paragraphs E &D.
Learned counsel submitted further that commencing an action by wrongful procedure does not constitute a jurisdictional issue since the lapse does not defeat the claimant’s cause of action, unless where specifically stated in the rules of Court. That the lapse is only an irregularity that gives the defendant the right to insist that plaintiff adopts the proper procedure in approaching the Court. Cited; UDO V THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS & STAR (2013) LPELR 19910 (SC); ORDER 5 RULE 2 OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010. That assuming the suit is incompetent the proper order the lower Court would have issued is to strike it out and not to dismiss it cited; MULTICHOICE NIGERIA LTD -V- AKPAN(2014) LPELR 22681 (CA) page 16 -17 paragraphs A-A. He urged the Court to hold that the trial Court was wrong in its decision dismissing this suit for being incompetent having been commenced by way of originating summons for possession and to resolve this issue in favour of the Appellant.
In his submission on this issue, learned counsel to the Respondent stated that the holding by the learned trial Judge that the suit is incompetent and could not have been validly commenced by an origination summons is sound and remains unassailable notwithstanding the feeble and groundless attempt by the appellant to make it look otherwise. That the position of the law in relation to procedural steps is that where the law, inclusive of the rules made by virtue thereof, laid down a procedure for making a claim, an aggrieved party must follow that procedure in making a claim. That the Appellant, a legal practitioner, is aware or ought to be aware that the combined effect of the provisions of Order 3 Rule 5,6 and 7 and Order 53 Rule 6(1) and (2) of the Rules of the lower Court 2010, applicable to Rivers State, his claim ought not to have been brought under Order 53 Rules 1,2and 3 (supra) considering the express provision excluding such claim in the circumstances set out therein and the undisputed facts set out in the Respondents counter affidavit set out on pages 25-34 of the Records. That this provision entitled the learned trial Judge to, by virtue of Order 3 Rule 7 and Order 53 Rule 1 (supra), refused the Appellant’s claims.
That the provisions of Order 3 Rules 1,2 and 3 Rules of the lower Court 2010 are the appropriate provisions which the Appellant ought to have used in instituting this suit. That the Appellant who chose a wrong procedure despite the preclusion set out therein has no basis to impugn the decision of the learned trial Judge. Cited: OSEYOMON V OJO (1997) 7 SCNJ 365 at 377.
On the submission by learned counsel to the Appellant that the learned trial Judge did not state in his Ruling the facts that made him to hold that the suit was incompetent, learned counsel to the Respondent countered by submitting that the default is not a mere irregularity, but an absence of competence which made the action not capable of being maintained or adjudicated upon. That the procedure adopted in initiating the suit is offensive to the law and thus disentitled it from benefiting from the exercise of the lower Court’s jurisdiction. That while the general position of the law is that where a suit is incompetent, it ought to be struck out, but where the action is an abuse of Court process, the suit can be rightly dismissed by the learned trial Judge before whom the suit is pending. Cited; JIMOH V STARCO (1998) 7, NWLR (PT. 558) 523 at 529-536; SARAKI V KOTOYE (1992) 9 NWLR (PT. 264)156; ARUBO V AIYELERU (1993) 3 NWLR (PT. 280) 126 at 142-146. That the action of the Appellants before the lower Court constitutes abuse of process and was properly dismissed. That the reckless and frivolous nature of the Appellant’s suit is a valid basis, for the decision of the learned trial Judge dismissing the suit.Learned counsel urged the Court to resolve this issue in favour of the Respondent.

…………………….E…………………….

FINDINGS ON ISSUE 1
I have considered the Ruling delivered by the learned trial Judge on 26/01/2016 on pages 51 -52 of the record of appeal wherein he cited and quoted Order 53 Rule 1(1)(a)(b) and (c) of the High Court (Civil Procedure) Rules 2010 and relied on the counter affidavit of the Defendant to dismiss the suit. I then considered the submission by learned counsel to the parties on the Order dismissing the suit. Order 53 Rule 1 sub Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010 provides as follows:
1(i): This order shall not apply where the person in occupation of land is: (a) a tenant; or (b) a tenant holding over after termination of his tenancy; or (c) a licensee of the owner or person entitled to possession; or (d) a person who is entitled to possession.
It is obvious that the Defendant/Respondent’s claim in this suit fall under the category mentioned in Order 53 Rule 1 sub rule 1 above. Thus the claimant/Appellant ought not to have commenced this suit under summary proceedings for possession of landed property occupied by squatters or without the owner’s consent pursuant to Order 53 of the High Court of Rivers State (Civil) Rules, 2010. Rather, he should have commenced this Suit under Order 3 Rules, 2 and 3 (Supra). The learned trial Judge is perfectly right in citing the above provision to refuse hearing the suit. The question to consider is; was the learned trial Judge right in dismissing the suit instead of striking it out?
The law is trite that an order dismissing a suit means an order of Judgment finally disposing of an action, suit or motion with or without trial of issues. See ALHAJI CHIEF A.R.O. SANUSI V ALAHAJI IBRAHIM AYOOLA & ORS (1992) LPELR 3009 (SC) at page 39 paragraphs E – F per OGWUEGBU JSC, GABRIEL MADUKOLU & ORS V JOHNSON NKEMDILIM (1962) LPELR 24023 (SC) on pages 9-10 paragraphs F-D per BAIRAMINAN, JSC.InAHMADU MAKUN & ORS VÂ FEDERAL UNIVERSITY OF TECHNOLOGY MINNA & ORS (2011) LPELR 15514 (SC) the Supreme Court while pronouncing on the effect of an Order of dismissal held per ADEKEYE JSC (page 30 paragraphs B – C) thus:
In the case of Ejiofor V Onyekwe & ors (1972) 1 ALL NLR (PT. 2) page 527, it was held that an order of dismissal operates as an estopel per rem judicatam and Ipso facto bars the losing party for all times re-litigating the same subject matter. I agree with the respondents that the judgments of the Courts in suit No. NSHC/47/89 and NSHC/160M/92 constitutes res judicata in this case.
The Apex Court as recently as 2017, pronounced thus:
A dismissal of action in limine is the most punitive relief a Court can grant a defendant against the plaintiff. Because of its punitive nature, Courts of law are reluctant in granting such request for the mere asking. There must be legal basis for the request and corresponding legal basis for granting it. See Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 574. Per GALINJE JSC in INNOCENT NWEKE V THE STATE (2017) LPELR 42103 (SC).
Upon considering the holding by the Supreme Court as it relate to dismissing a suit, vis-a-vis the facts and circumstances of this suit, it is my holding that the learned trial Judge was not right in his decision/ruling dismissing this suit on the basis that it was incompetent having been commenced by way of originating summons for possession. The said order for dismissal is hereby set aside and in its place an Order striking out suit No. PHC/578/2015 is issued. Thus this suit is struck out for lack of merit and the Appellant can put their house in order and come under the appropriate Rules of Court for the matter to be heard and determined on the merit.
See ONUMAJURU V AKANIHU (1994) 3 NWLR (PT. 334) 620 at 630. This judgment is also applicable to suits No. PHC/582/2015, PHC/581/2015, PHC/577/2015, PHC/579/2015, PHC/583/2015, PHC/580/2015 and PHC/584/2015 which were summarily dismissed by the learned trial Judge in one fell swoop on page 52 of the Records.
Thus issues 1 and 3 are resolved in favour of the Appellant while issue 4 is struck out for being premature at this stage. Considering my holding above, this Court cannot decide whether the Appellant is entitled to an order for possession of the subject matter of the suit at an appellate stage without a trial by the lower Court. This appeal succeeds in part the Ruling delivered by the learned trial Judge on 26th January, 2016 in suit No. PHC/578/2015 dismissing the suit is set aside and in its place the suit is hereby struck out. There shall be no order as to cost.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
ISAIAH OLUFEMI AKEJU, J.C.A.: I agree with the reasoning of my learned brother, BITRUS GYARAZAMA SANGA JCA in the lead judgment. I allow the appeal in part and abide by the consequential orders.