Chief Isaac O. Jemide V. Dr. Paul Nwanne & Ors (2008)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the ruling of the Warri Division of the High Court of Delta State in Suit No. W/284/2001 delivered by Anigboro, J. on 25th March, 2002. In that action, the appellant, as plaintiff claimed for special and general damages against the Defendants jointly and severally.
The full of the claim as set out in paragraph 50 of the statement of claim is as follows: –
- WHEREFOR the Plaintiff claims against the defendants, jointly and/or severally, special, general and punitive damages for the unlawful or illegal or wrongful entry and/or occupation of Plaintiff’s house, situate at 18, Efejuku Street, Warri, from the period 1/6/2000 to date, and/or in the alternative, for trespass on the said house over the period.
PARTICULARS OF SPECIAL DAMAGES
a) Rent due and payable to the Plaintiff for the house for period 1st June, 2000 to 30th of May 2001 or rent lost during the same period – N250,000.00
b) Rent due pro rata on the above amount from 1st June, 2001 to August 31st 2001 – 41,666.66
c) Cost of bringing the house to a state of good and tenantable repair, both internally and externally – 858,850.00
Total – N1,150,516.66
d) General damages – 500,000.00
e) Punitive Damages – 500,000.00
Grand Total – N2,150,516.66
f) In addition to the above, the plaintiff claims a pro rata rent from 1st September, 2001 till judgment is delivered, or until the defendants give up possession of the house by delivering its keys, which over is earlier on time.
g) The Plaintiff also claims interest at the rate of 15% per annum on all rents due and payable from the 1st of June, 2001 until judgment is delivered.
h) Or in the alternative to (g) the plaintiff claims mesne profit of N100,000.00 on rent due over the same period as in (g) above.
i) In the alternative to paragraph 50(a) the plaintiff claims a market value rent of N300,000.00 (Three Hundred thousand Naira) per annum from the period 1st of June 2000 until judgment is delivered in this suit.
Upon being served with the Plaintiff/Appellant’s claim, the Defendants filed an application pursuant to Order 11 r. 5(2) of the Bendel State High Court Civil Procedure Rules 1988, applicable to Delta State High Court. This application dated and filed on 8th November, 2001, principally seeks for one main relief.
It was for an order striking out the names of the defendants from the suit because, according to the application, they lacked locus standi to defend the action because of certain named paragraphs of the statement of claimed. These were paragraphs 2, 3, 4, 5, 7, 9, 10, 14 and 15.
From the face of the motion paper the grounds for this application seemingly appear to be that: –
1) The defendants are not next of kin to late Dr. H.C. Barber;
2) The defendants have not been granted any letters of administration to administer the estate of Dr. H.C. Barber who died intestate at Warri on 16th August, 1998; and
3) The defendants have no personal interest whatsoever in the properties either leasehold or otherwise of late Dr. H.C. Barber.
This application was supported by a 17 paragraph affidavit deposed to by the 2nd Defendant, on behalf of himself and the 1st and 3rd Defendants. The Plaintiff replied with a 17 paragraph counter affidavit dated 15th January, 2002. To this counter affidavit, the 2nd defendant on behalf of himself and the 1st and 3rd defendants, respondent with a 16 paragraph reply to counter affidavit dated 25th February, 2002. The Plaintiff filed a 9 paragraph further counter affidavit dated 12th March, 2002.
This application was argued before the lower court on 22/3/02 and a ruling was delivered on 25/3/02. In its ruling the lower court some what uphold the application of the defendants and struck out the statement of claim of the plaintiff in suit No. W/284/2001 filed on 11th September, 2001. The Plaintiff was dissatisfied with this ruling consequent upon which he filed this appeal. The grounds of appeal, without their particulars are as follows: –
1) The learned judge of the lower court erred in law when, in his ruling, he held as follows: “Plaintiff in paragraph 50 of the Statement of claim merely claims for special damages without any amount of money attached to be damages purportedly claimed. This averment to my mind does not aver any effective damage. This failure to aver- effective damage is a fundamental and incurable defect on the pleading of plaintiff respondent to constitute cause of action.” “In the circumstances I hold that the statement of claim filed on the 11/9/2001 does not disclose any reasonable claim against the defendants jointly and/or severally. Mere allegation without effective claim is not enough to constitute cause of action against a defendant in a suit.”
2) The learned judge of the lower court erred in law in descending into the arena and making a case for the Defendants/Respondents by striking out the statement of claim on the ground that it discloses no cause of action, when such an application was not made and presented to the court by the Defendant.
3) The learned judge of the lower court erred in law in not giving proper consideration to the provisions of order 11 Rule 3 in relation to order 11 rules 5 (2), the wording or substance of the defendants’ application, together with the entire contents of the statement of claim, before striking out the said statement of claim on the ground of non disclosure of a cause of action.
4) The learned judge of the lower court erred in law by concluding in his ruling the “in the circumstances the motion succeeds”. When there was no legal justification or basis whatsoever for such a success.
5) The learned judge of the lower court erred in law in holding that paragraph 50 of the plaintiff’s statement of claim, even at it stands, disqualifies the statement of claim from disclosing a cause of action against the defendants, simply because no specific amount of monetary claims is mentioned therein, more so as general damage has been claimed.
In his brief of argument dated 26th November, 2003, the appellant formulated and argued 4 issues. These 4 issues were set out in the brief of argument as follows: –
I. Was the Learned trial Judge of the lower court right in striking out the plaintiff’s statement of claim on the ground of non-disclosure of a reasonable cause of action when there was no application before the court to that effect, and he did not give an opportunity to the applicant to be heard on the issue?
II. Assuming, but without admitting, that the application before the court was for an order that the statement of claim be struck out for non-disclosure of a reasonable cause of action, was the trial judge right in holding that the said statement of claim disclosed no reasonable cause of action and therefore should be struck out?
III. Having regard to the specific application before the court, was the trial judge right in striking out the Plaintiffs statement of claim on the ground of non-disclosure of a reasonable cause of action without giving any consideration to the provisions of Order 11 rule 3 of t he High Court Civil Procedure Rules of Bendel State (1988) applicable to Delta State High Court?
IV. Did the trial judge have any legal justification or basis for holding as he did about defendants’ motion at page 41 lines 11 of the record, that “In the circumstances the motion succeeds”?
The respondents did not file any brief. By an application dated 17th February, 2005 and filed on 23rd February, 2005, the appellant/applicant sought for and obtained an order of this court for this appeal to be heard and determined on the appellant’s brief only.
Before I go into the arguments of learned counsel to the appellant on the 4 issues he formulated, I wish to observe that some of the issues formulated appear to me to be a bit inelegant. Though this appeal, is being heard and determined solely on the appellant’s brief, I am not satisfied with the way issues (ii) and (iv) were couched by appellant’s counsel, incidentally the appellant appears for himself as counsel. The Supreme Court and indeed this court had in several authorities, given guidelines on how issues for the determination of appeal should be formulated. In CHIEF ONWUKA KALU V. CHIEF VICTOR ODILI & ORS (1992) 5 NWLR (PT.240) 167-168, the Supreme Court was confronted with issues formulated as arguments in the appeal and Nnaemeka – Agu, JSC commented on those issues as follows: –
“An issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed and no more, but also must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court.”
Considering this comment it would certainly serve no useful purpose to pick out isolated statements of the court whose judgment is appealed from and make “issues” of them, as learned counsel to the appellant sought to do in his issue number (iv). It must be understood that issues are intended to focus on the vital areas of conflict in the appeal and also serve as springboards for argument. They are not meant to constitute arguments themselves. See OKOYE V. N.C.F. CO. LTD (1991) 6 NWLR (PT.199) 501.
Coming back to this appeal, I believe that issues (i) and (iii), as formulated by learned counsel to the appellant, inspite of the inelegance can be taken as having covered all the 5 grounds of appeal and sufficiently emanating fully therefrom. I will take them as relevant to the determination of this appeal. In view of this, I will discountenance issues (ii) and (iv) and the argument of counsel on same and concern myself with issues (i) and (iii) and arguments of counsel on them only in the determination of this appeal.
In his arguments on issue (i), learned Counsel Chief Jemide opened by highlighting Order II rule 5(2) and 16 of the High Court of the 1988 rules of Bendel State High Court, applicable to the High Court of Delta State. He also underscored the principal relief sought by the defendants in the motion dated 8/11/01. Learned Counsel then maintained that the application of the defendants very clearly and undisputedly was not for an order to strike out the plaintiff’s statement of claim for non-disclosure of a reasonable cause of action. He added further that learned counsel to the defendants before the lower court did not make any argument for a case that the plaintiff’s statement of claim did not disclose a reasonable cause of action or same to be s truck out accordingly. Chief Jemide, of Counsel, also explained that throughout the hearing of the motion, the learned trial Judge himself did not raise the issue of the statement of claim not disclosing a reasonable cause of action and did not give any opportunity for any Counsel to be heard on that question.
While referring to the ruling of the lower Court of 25/3/02, Chief Jemide argued that the learned trial Judge suo motu, raised the question whether or not the statement of claim disclosed a reasonable cause of action and after examining the question on his own he came to the conclusion that it did not and consequent upon which he struck it out.
Based on this argument, learned Counsel submitted that on the strength of decided cases, the learned trial judge erred in considering an issue that was not before him and also erred in raising an issue suo motu and proceeding to resolve same without affording parties any opportunity to make submissions on the issue, and more particularly the party to be adversely affected by a negative answer to the issue raised suo motu. At page 3 of the brief at paragraph 4.6, learned Counsel quoted from the ruling of the lower Court as follows: –
“It is pertinent to observe that the prayers of the applicants in their motion papers are not elegantly drafted though the purport of their complaint is conveyed. I shall ignore the inelegance in the form and the adjudge (sic) the substance of the prayer in the interest of justice.”
According to learned Counsel, this decision of the learned trial judge was an attempt to side track the important legal principle that a judge should not descend into the arena to make a case for a party to an action and grant a relief which a party did not ask for.
Learned Counsel went further to submit that the above quoted opinion of the learned trial Judge was unfounded and unjustified because the prayer of the defendant in the motion was clear and unambiguous and there was nothing inelegant about it.
On the application of the defendants before the lower court, learned Counsel recalled the portions of Order II rules 5(2) and 16 (supra) and Order 25 rule 20 of the Bendel State High Court Rules, applicable to Delta State High Court, and argued that it was not brought and argued by the applicants under Order 25 rule 20 to have the statement of claim struck out on the grounds of non-disclosure of a reasonable cause of action but for the defendants’ names to be struck out on the ground of mis-joinder. He submitted that whereas this application was brought and argued pursuant to Order II rule 5(2) and 16 (supra) the learned trial judge handled same and granted a relief as if it was brought and argued pursuant to Order 25 rule 20 (supra).
In support of his argument that the learned trial Judge acted in error in conducting the proceedings and arriving at the decision he did in the application of the defendants, learned Counsel referred to the case of TINUBU V. I.M.B. SECURITIES PLC (2001) FWLR (PT.77) 1003 AT PAGE 1024 Parags. A-C where it was held that when a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer or be prejudiced as a result of the point raised suo motu.
On the strength of the authority of TINUBU V. I.B.M. SECURITIES PLC (supra), learned Counsel submitted that the learned trial Judge was wrong in descending into the arena and also in making a case for the defendants/respondents completely outside the scope of their application and granting them a relief which they did not ask for and without giving the plaintiff/appellant to be heard on the issue. He urged this Court to answer the question raised in issue (i) in the negative.
On issue number (iii), learned Counsel began by an emphasis that the application of the defendants/respondents before the lower court was brought pursuant to Order II rule 5(2) and 16 (supra) on the alleged ground of mis-joinder of the defendants for the purported and strange reason that they “lack locus standi to defend the action.” Learned Counsel reproduced Order II Rule 5(2) (supra) as follows: –
“The Court may, at any stage of the proceedings, and on such terms, as appears to the Court to be just order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out.”
Learned Counsel went on to underline “improperly joined” and submitted that it is Order II Rule 3 (op cit) which prescribes the condition for a good or proper joinder and argued that it is only when the conditions so prescribed are not met that there can be an improper joinder within the con of Order II Rule 5(2) (supra). He added that by the provisions of Order II Rule 3, a defendant is properly joined in any action when a right to any relief is alleged to exist against him, whether jointly or severally with other defendants or in the alternative.
According to learned Counsel Chief Jemide, the statement of claim contains enough allegations of the existence of a right to a relief against the defendants Jointly or severally for them to be properly joined in the action as provided by’ Order II Rule 3. He added that the application of the defendants that their names be struck out for lack of locus standi to defend the action bears no legal consequence or relevance. He then submitted that if the learned trial Judge had focused his attention on and restricted himself to the application of the defendants before him he should have concluded that the defendants had been properly joined as envisaged by Order II Rule 3 and therefore the complaint of the defendants for mis-joinder need not have arisen to sustain an application pursuant to Order II Rule 5(2).
In the opinion of learned Counsel the principle of locus standi is only applied to the right of a plaintiff to sue and not on the capacity of a defendant to defend an action. Learned Counsel also argued that the learned trial Judge erroneously applied Order 25 Rule 20 in striking out the Plaintiffs statement of claim for non-disclosure of a reasonable cause of action. Without giving any consideration whatsoever to the fact that the said statement of claim was competent and unassailable by the combined effect of Order If Rule 3 and rule 5(2) (supra). In concluding his arguments on this issue, learned Counsel submitted that the learned trial Judge was wrong in striking out the Plaintiffs statement of claim, on the ground of non-disclosure of a reasonable cause of action, without giving proper consideration to Order II Rule 3 in relation to the application before him. He urge this court to also answer the question raised in issue (iii) in the negative.
In his final submission, learned Counsel Chief Jemide, prays this Court to allow this appeal and hold that the statement of claim in suit No. W/284/2001 discloses a reasonable cause of action and also to hold that the defendants were properly joined in the action. He further prayed that this matter be sent back to the lower court for trial by another Judge other than Hon. Justice P.J.O. Anigboro.
I have carefully considered all the arguments and submissions of learned Counsel Chief Jemide together with some of the decided cases cited in the brief of argument as well as the relevant rules of court in issue in this appeal. It is not in doubt at all that the application of the defendants before the lower court was for an order for their names to be struck out from suit No. W/284/2001. It is also not in any doubt that the application was brought pursuant to Order 11 Rule 5(2) and 16 of the Bendel State High Court rules, applicable to Delta State High Court.
In arguing the application before the lower court, learned Counsel to the Defendants/Applicants, Mr. H.O. Ofuya at pages 32 to 33 of the record of appeal reiterated and underscored the principal relief sought by the defendants to be no more than for an order for their names to be struck out for what he chose to call “lack of locus standi.” He highlighted the various grounds for the application as set out on the motion paper. No other additional grounds were canvassed by learned Counsel Mr. Ofuya other than those set out in the motion paper.
Order II Rule 5(2) provides: –
“The Court may at any stage of the proceedings, and on such terms as appear to the Court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out.”
Order II rule 16 provides that;
“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a Judge in chambers at any time “at any stage of the proceedings” before trial by motion or summons or in a summary manner at the trial of the action.”
These rules of Court read together pertain to and are connected with the issue of parties before the court. It is a cardinal principle in civil litigations that all the necessary and proper parties must be brought before the Court to enable it to have full and complete jurisdiction over the matter and also for the matter to be fully and completely adjudicated upon and to avoid unnecessary multiplicity of actions. It is also important that any party found not to have been properly joined in an action, be struck out at any stage of the proceedings as well as to save an innocent party the legal costs and expenses con-comittant with litigations.
In another perspective Order 25 rule 20 (supra) provides: –
“The court may at any time, on the application of either party, strike out any pleading or any part thereof, on the ground that it discloses no cause of action, or no defence to the action, as he case may be, or on the ground that it is embarrassing, or scandalous, or vexations, or an abuse of the process of the Court; and the court may either give leave to amend such pleading or may proceed to give judgment for the plaintiff or the defendant, as the case may be, or may make such other order, and upon such terms and conditions as may seem just.”
While the dominant issue in order II 5 (2) and 16 is the name of parties. Order 25 rule 20 pertains to pleadings liable to being struck out.
In the ruling of the lower Court, upon which this appeal is predicated, the learned trial Judge held as follows: –
“In the circumstance I hold that the statement of claim filed on the 11/9/2001 does not disclose any reasonable claim against the defendants jointly and/or severally. Mere allegations without effective claim is not enough to constitute cause of action against a defendant in a suit.”
Having reached this decision, the learned trial Judge went on to observe that: –
“It is pertinent that the prayer of the applicants in their motion papers are not elegantly drafted though the purport of their complaint is conveyed I shall ignore the inelegance in the forum and adjudge the substance of the prayer in the interest of justice.” (See lines 6-10 page 41 record of appeal.
Upon this observation, the learned trial Judge went on to hold that: –
“In the circumstance, the motion succeeds. The claim against the defendants as contained in the statement of claim med on 11/9/2001 is hereby struck out.” (Sec lines 11-13 page 41 record of appeal).
I entirely agree with learned Counsel Chief Jemide, that the only Issue before the learned trial Judge was whether the names of the defendants ought to be struck out for “lack of locus standi” and not for the entire claim as contained in the statement of claim to be struck out.
In so far as the application before the lower court, was for the names of the defendants to be struck out, the lower court cannot do anything more than just that the issue of whether any part of the statement of claim or indeed all of it ought to be struck out was not at all an issue before the lower court. It was not raised or argued by either of the Counsel before the Court. It was wrong for the learned trial Judge to raise the issue of the reasonableness of the claim or cause of action in suit No. W/284/2001 and proceed to resolve same without the prompting of any of the parties. The constitution of an action goes to the root of the action it is therefore wrong for a judge to take up a point suo motu and decide it without hearing the parties to the action.
In any legal contest a judge is seen as an impartial umpire and must remain so. It is an injustice and an improper exercise of judicial power for a judge to take up a point suo motu, no matter how clear it may appear, and without hearing any of the parties to be affected by the decisions, proceed to decide it. It is not even-handed Justice for a court to raise an issue for either of the parties and, without hearing both parties proceed to base its Judgment on it. See INUA V. NTA (1961) 1 ALL NLR 576 as considered and applied by the Supreme Court in CHUKWUMA KWUDILI UGO V. AMAM CHUKWU OBIEKWE & ANOR (1989) 1 NWLR (PT.99) 566 AT 582.
It has been held to be a basic and fundamental requirement of our system of administration of justice protected and safeguarded under the Constitution that no one can have a decision entered against him without being heard. Part of the essence of our Constitutionally guaranteed right to fair hearing under S.36 of the 1999 Constitution is captured under the latin maxim – audi alteram partem; which implies not only that all the parties to be affected by a decision are entitled to be heard in the case at hand before the decision is given but also that if; in the course of hearing, any new point material to the decision arises, each of such parties shall be heard on it before a decision based upon it can rightly be handed down. See TINUBU V. I.B.M. SECURITIES PLC (supra).
Based on the foregoing decisions and the circumstances of the instant appeal, I fully agree with learned Counsel Chief Jemide that the question raised in issue (i) must be answered in the negative.
The application of the defendants before the lower Court was for an order for their names to be struck out pursuant to Order II Rule 5(2) read together with Order II Rule 16. The issue here is that the names of the defendants be struck out if it was found that any or all the grounds for their application stand out to show that they were not properly joined in the action.
On the other hand, a defendant who knows that there is a point of law which can determine the action in his favour in limine can apply to the court by way of motion or as a point of his pleading to dismiss the action without evidence having been taken. This procedure is available to a defendant who alleges that the statement of claim does not disclose a reasonable cause of action in law against him. See FRED EGBE V ALHAJI ABUBAKAR ALHAJI (1990) 1 NWLR(PT.128) 546.
This is the procedure which, I believe, is envisaged or contemplated by Order 25 Rule 20 (supra). This procedure allows the Court to strike out the whole or part of the pleadings or to allow some amendment of it as it may deem fit in the circumstances or the facts of a matter.
The procedure under Order II Rule 5(2) and 16 (supra) on the one hand is entirely different from the one envisaged under Order 25 Rule 20 (supra). In dealing with the application of the defendants brought under Order II Rule 5(2) and 16, the learned trial Judge went out of the way to deal with it as if it was brought under Order 25 Rule 20. The defendants did not seek for a relief to strike out the statement of claim but for their names to be struck out.
A trial court has no right to grant a remedy which has not been sought by an applicant. See KALIO & ORS V. DANIEL KALIO (1975) 2 S.C. 15 AT 17-19. The learned trial Judge paid little attention to details when he granted a relief quite different from the one being sought in the application before him. The learned trial Judge was clearly in error to have ordered for the striking out of the statement of claim without a specific application for such a relief before him. Without any hesitation, the question raised in issue (iii) must also be answered in the negative.
In all, this appeal is allowed. In consequence of this, this matter is hereby remitted to the lower Court for the Chief Judge of the Delta State High Court to assign same to another judge of the Court, other than Anigboro J. to hear and determine same on the merits. I order for N130,000.00 costs against the respondent in favour of the appellant.
This appeal was heard on the 2nd October, 2007. Judgment was delivered today about 9 days outside the 90 days prescribed by the Constitution of the Federal Republic of Nigeria. The delay in delivering this judgment was due to an intermittent bout of ill-health on my part. I suffered a series of attacks of malaria fever and catarrh that kept me bedridden for about 16 days. Also, during the period when judgment ought to have been delivered this court officially closed for the Sallah, Christmas and New Year holidays between 14th December, 2007 to 7th January, 2008.
I am fully satisfied that none of the parties herein suffered any prejudice or miscarriage of justice as a result of the slight delay in delivering this judgment within 90 days.
Other Citations: (2008)LCN/2624(CA)
