Chief Emmanuel Nwude & Ors V. Mike Ifeanyi Ozoemene & Ors (2016)
LawGlobal-Hub Lead Judgment Report
RITA NOSAKHARE PEMU, J.C.A.
This is an Appeal at the instance of the Appellants, who are appealing the Ruling of Hon. Justice J. C. Iguh sitting at the High Court of Anambra State, Awka Judicial Division, delivered on the 13th day of January 2014, in Suit No. A/121/2012.
FACTS RELEVANT TO THIS APPEAL
By Writ of Summons and Statement of Claim filed on the 19th of April 2012, the Plaintiffs (Respondents in the present Appeal) in Paragraph 25 of the Statement of Claim claimed several declaratory reliefs and restraining orders, against the Defendants (Appellants in the present Appeal.
The Appellants upon being served with the originating processes filed a motion challenging the competence of the suit, in that the Court had no jurisdiction to entertain same.
The Respondents filed a Counter affidavit and after argument by both parties, the lower Court dismissed the Appellants motion on the 13th of January 2014.
The Respondents had on the 19th of April 2012 taken out an action against the Appellants in that the traditional Ruler of Awka, H.R.H. Obi Gibson Nwosu (Eze Uzu Awka) informed the 1st
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Respondent that he had been relieved of his position as the Chairman of Umuozoch Development Union to take over and see to the running of the said union till the election to be conducted by the 4th appellant.
The Appellants on their part are of the opinion that the Respondents had a bad case, as the 9th Respondent who was the 9th Plaintiff at the lower Court could not have sued the 1st to 4th appellants who were the trustees of the 9th Respondent at the time of the Institution of the suit.
The Appellants consequently filed a motion on notice challenging the jurisdiction of the lower Court to entertain the suit on the ground that the 9th Respondent could not have taken out the action without the approval and consent of the 1st-4th appellants, who are its trustees and that there was no cause of action, or reasonable cause of action against the appellants.
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The Appellants are dissatisfied with the Ruling of the lower Court and are desirous of appealing same. Pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice of Appeal on the 24th of January 2014 – Pages 328-332 of the Record of Appeal. With five (5)
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Grounds of Appeal.
The Appellant filed their brief of Argument on the 16th of April 2015. It is settled by Emeka Nwankwo, Esq.
The Respondents’ brief of Argument was filed on the 19th of May 2015. It is settled by Ken Nwanna, Esq.
On the 21st of April 20L6, the parties adopted their respective briefs of argument.
The Record of Appeal in this appeal was compiled and transmitted to this Court out of time, and pursuant to an application for extension of time to compile and transmit the Record of Appeal, filed on the 1st of July 2014, this Court deemed the Record of Appeal as duly compiled and transmitted to this Honourable Court on the 11th of March 2015.
The Appellants proffered a sole issue for determination in their brief of argument which is –
“WHETHER THE LOWER COURT WAS CORRECT TO HAVE DISMISSED THE APPELLANT’S CASE CHALLENGING THE JURISDICTION OF LOWER COURT TO ENTERTAIN THE MATTER?”
The Respondents proffered a sole issue for determination in their brief of argument which is –
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE DISMISSED THE APPELLANT’S APPLICATION FOR AN ORDER TO STRIKE OUT THE
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SUIT.”
The Respondents’ issue for determination is an adoption of that of the Appellants. I shall determine this Appeal based on the Appellants issues for determination.
SOLE ISSUE
The Appellants submit that the lower Court having held that the 9th Respondent is the Plaintiff and the defendant in the same suit, it should have struck out the Suit.
That the learned trial Judge had held that, in the case at the lower Court, the 9th Plaintiff/Respondent instituting the suit against its trustees (1st-4th defendants applicants) even in different capacities, will amount to the 9th Plaintiff being a Plaintiff and the defendant in the same suit.
But it concluded by holding that the inclusion of the 9th Plaintiff even though a misjoinder, does not defeat the proceedings.
That even in Paragraphs 5, 6 and 7 of the Respondents Statement of Claim, they averred that by the provisions of the Constitution of the Umuzocha Development Union, the members of the board of Trustees of the Union shall be within the ages of 65 to 75 years.
They further averred that of all the trustees of the Umuzocha Development Union, the 1st
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appellant is more than eighty years and the 2nd and 4th appellants are less than 65 years ord. The 1st to 4th appellants are the current members of the Umuzocha Development Union Board of Trustees.
This averment by the Respondents culminated in their Relief C – Page 7 of the Record of Appeal which says –
“A declaration that the 1st, 2nd and 4th defendants are not qualified to hold the positions of members of the board of trustees of the 9th plaintiffs.”
All these facts, they submit affect the activities of the 9th Respondent which warrants his being joined as a party.
They submit that as at the time the lower Court concluded that making the 9th Respondent a party amounted to misjoinder, there is nothing on record to show that the respondent had withdrawn Relief C in their Statement of Claim. Neither is there anything to show that leave of Court had been obtained to expunge Paragraphs 5, 6 and 7 of their Statement of Claim.
?They submit that the provisions of Section 596 of the Companies and Allied Matters Act 2004, Laws of the Federation enables an incorporated body to sue and be sued in its corporate name. Therefore it will
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be abnormal to strike out the names of the trustee, when a litigant is questioning the propriety or legality of members, or member of the said incorporated body.
Citing Order 13, Rule 16 (2) of the High Court of Anambra State (Civil Procedure Rules) 2006, they submit that the lower Court relied on the provisions to strike out the name of the 9th Plaintiff.
They submit that it is obvious that the lower Court, by this act, did not consider Relief C as well as Paragraphs 5, 6 and 7 of the Respondents Statement of Claim. The suit could not have been determined without the 9th Respondent.
They submit that the provisions of Order 13 Rule 16 (2) of the High Court of Anambra State (Civil Procedure Rules) 2006 empowers the lower Court, to suo moto strike out the name of a person or party improperly joined.
They submit that the lower Court should have exercised that discretion, and in doing so, should afford the parties the opportunity to be heard on the issue.
That in this case, none of the parties prayed the lower Court to strike out the name of the 9th Respondent.
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They submit that the lower Court struck out the name of
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the 9th Respondent to pave way for it to dismiss the Appellants objection.
The Plaintiff/Respondents in their Statement of Claim, claim the defendants/applicants jointly and severally several declaratory and restraining reliefs – Paragraph 25 (a) – (j) of the Statement of Claim.
The application, the subject matter of this present appeal is that the Court struck out Suit No. A/121/2012 for want of jurisdiction.
It is the contention of the Appellants that it is the trustees of Umuzocha Development Union – the 1st-4th applicants and no other person that can sue in this case.
That making the 9th Respondent a plaintiff in this suit amounts to one suing itself, because the 9th Respondent is also a defendant in the action. That the 9th Plaintiff Respondent being one of the plaintiffs in the suit is also suing the 1st-4th defendants in the suit who are its trustees.
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It is contended that by virtue of the provisions of Section 596 (1) of the Companies and Allied Matters Act (CAMA), from the date of registration, the trustee or trustees shall become a body corporate by the name stated in the certificate of incorporation, and shall
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have perpetual succession and a common seal, and power to sue and be sued in its corporate name as such trustees. Therefore the necessary implication is that by virtue of the above provisions of CAMA, the 9th plaintiff, having been registered, as exhibited in Exhibit AKUI, and averred by the Plaintiff in their Statement of Claim, the 1st-4th defendants/applicants who are the trustees of the 9th Plaintiff Respondent become a body corporate by the name described in the certificate, and therefore has power to sue and be sued in its corporate name as such trustees.
In Paragraph 5 of the affidavit of the 1st-4th Respondents, they averred that the 9th Plaintiff did not consent or approve institution of the suit and that same was instituted without their approval since it was the trustees that became a body corporate who can sue and be sued.
But it seems to me that from the record and indeed the Writ of Summons the 1st-4th defendants were sued in their personal and individual capacities and not as trustees to anyone.
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I am of the view that if the inclusion of the 9th Plaintiff is irregular, all the Court has to do is to strike out its name on
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the grounds of misjoinder.
By the provisions of Order 13, Rule (2) of the High Court (civil procedure) Rules 2006 of Anambra State, it provides that ?
“Where an action has been commenced in the name of the wrong joinder as plaintiff or where it is doubtful whether it has been commenced in the name of the right plaintiff, a judge may order the substation or addition of any other person as Plaintiff on such terms as may be just.”
Order 13 Rule 16 (1) of the High Court (Civil Procedure) Rules of Anambra State 2006 provides that –
“No proceedings shall be defeated by reason of misjoinder or non joinder of parties, and a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.”
The implication of this rule of Court is that misjoinder or non-joinder, cannot be seen to defeat a cause of action. Misjoinder or Nonjoinder is without prejudice to the Court determining the case before it on its merits. Parties misjoinded can be struck out and those not joined can be brought in. This could not defeat the course of justice.
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When the learned
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trial Judge held at Page 327 of the Record of Appeal (Page 12 of its Ruling) that –
“Having struck out the name of the 9th Plaintiff, I do not agree with the contention of the learned counsel for the defendants/applicants that with the exclusion of the 9th respondent, the 1st – 8th Respondents parade no cause of action against the applicants. The cause of action of the 1st – 8th Plaintiffs Respondents are clear from the endorsement on the Writ and the plaintiffs’ pleadings in the suit which I had earlier pointed out in this ruling?.”.
I agree entirely with him.
The grounds upon which the reliefs in this application is predicated are –
1) “The 9th Plaintiff (Incorporated Trustees of Umuzocha Development Union) cannot take out the present action, sans or without consent and approval of the 1st, 2nd, 3rd and 4th defendants who are its trustees.
2) The said 1st, 2nd, 3rd and 4th defendants have not given their consent or approval to the 9th Plaintiff to take out the present action.
3) The Plaintiffs have no cause of action or reasonable cause of action against the defendants as no dispute exists between the Plaintiffs and the
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defendant on individual capacity.”
The learned trial Judge had aptly treated these grounds, and I do not see any reason who I should disturb that decision.
Decidedly, jurisdiction is the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject matter of the issues, OR to the persons between whom the issues are joined, or the kind of reliefs sought. – A-G LAGOS STATE v. DOSUMU (1989) 3 NWLR (Pt. 111) @ 552.
Ogundare, J.S.C. (of blessed memory) put the issue of Jurisdiction succinctly thus in ARJAY LTD. v. A.M.S. LTD. (2003) 7 NWLR (Pt. 820) Pg. 577 @ 625 – that objection can be raised to Jurisdiction of a Court when – (a) “On the basis of the statement of claim.
(b) On the basis of evidence received.
(c) By a motion supported by affidavit giving the full facts upon which reliance is placed or
(d) On the face of Writ of summons where appropriate, as to the capacity in which action was brought, or agent whose action is brought.’
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Jurisdiction is not just an issue of law. It is fundamental
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OLORIODE v. OYEBI (1984) 1 SCNLR 350. Therefore, objection that a Court has no jurisdiction to entertain a matter is not just an ordinary point of law. There must be Jurisdiction before adjudication. Therefore a Court of law would be divested of Jurisdiction to adjudicate upon a matter, if there is a feature of the case that denies it Jurisdiction – MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587.
With respect, the Appellants have not been able to establish why the lower Court should not have entertained the matter for want of Jurisdiction.
It is trite that in order to establish whether a cause of action obtains in a suit, the Writ of Summons and the Statement of Claim come to focus.
A painstaking look at the entire facts averred in the Statement of Claim, show ex-facie that the Plaintiffs have a case against the defendants.
At the threshold of Jurisdiction, I am of the view that the learned trial Judge had jurisdiction to entertain the matter.
This sole issue is resolved in favour of the Respondents and against the Appellants. Consequently, this Appeal is bereft of merit and same is hereby dismissed.
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The
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Ruling of Hon. Justice J. C. Iguh, of the High Court of Anambra State, Awka Judicial Division, delivered on the 13th of January 2014 in Suit No. A/121/2012 is hereby affirmed.
Parties to bear their respective costs.
Other Citations: (2016)LCN/8716(CA)
