Chief Robert O. Amamize V. S. I. O. Industries Limited (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the ruling of Z.A. Smith. J of the High Court of Delta State, Asaba Judicial Division, delivered on the 6th October 2004 in Suit No. A/110/2004 CHIEF ROBERT O. AMAMIZE V. S.I.O. INDUSTRIES LTD in which he upheld the preliminary objection against the competence of the Suit.

At the lower court the Appellant as Plaintiff had taken out a writ of summons against the Respondent as Defendant followed by a statement of claim dated the 14th June 2004 and filed on the 15th June 2004 which is reproduced hereunder-

IN THE HIGH COURT OF DELTA STATE

HOLDEN AT ASABA

BETWEEN SUIT NO.A/110/2004

CHIEF ROBERT O. AMAMIZE …. APPELLANT

AND

S.I.O. INDUSTRIES LIMITED …. RESPONDENT

STATEMENT OF CLAIM

1. The Plaintiff resides at No.8 Tanimola Street, Ilasamaja, Lagos and is the beneficial owner of all that land and buildings thereon lying being and situate at No. 22 Nnebisi Road, Asaba, Delta State registered as No.21 at Page 21 in volume 108 of the Lands Registry in the office at Asaba at all material time described as Ani-Ndida, Umuagu Quarters at the intersection of Nnebis Road and Fums Street, Asaba.
2. The Defendant claims to be a Limited Liability Company with its registered office at S.I.O. towers, 25 Boyle Street, Onikan, Lagos and carrying on business at Kilometer 129, Benin Asaba Expressway, Asaba, Delta State.
3. The Plaintiff avers that he has consistently exercised beneficial ownership on the property including letting and ejecting tenants and creating encumbrances thereon by way of mortgages – the several of which shall be founded at trial.

The Plaintiff avers that there was at all material time, and, is a subsisting legal mortgage on the property – whereof shall be founded at trial.

5. The Plaintiff avers that

(1) Sequel to a letter dated the 11th day of July 1997 his eminence Chief Olisa Chukwurah, O.F.R., S.A.N. (deceased) acting for and on behalf of the defendant communicated the terms of the proposed lease of No.222, Nnebisi Road, Asaba, between S.I.O. Industries Limited and the Plaintiff, the terms of which were affirmed by the Plaintiffs endorsement of the column therefore provided;

(2) the eminent O.F.R., S.A.N. subsequently engrossed the terms of the said proposed lease and caused the plaintiff to append his hand thereon-whereof shall be founded at trial;

(3) following therefore the Defendant forwarded to the Plaintiff a United Bank for Africa (UBA) PLC Cheque dated the 11th day of August, 1997 under cover of a letter dated 24th day of July, 1997 for the sum of N10,000,000.00 (Ten Million Naira) only as a deposit for the proposed lease.

(4) the Defendant assured the plaintiff profusely that in a matter of a dew days hence, not exceeding the 31st day of July, 1997 the outstanding sum of N5,000,000.00 (Five Million Naira) only would be settled to satisfy the rent of N15,000,000.00 (Fifteen Million Naira) only for the proposed 15 (fifteen years lease at N1,000,000.00 (One Million Naira) only per annum;

(5) the sum of N5,000,000.00 (Five Million Naira) was not and has not been settled in whole or in part to date whereof the Defendant frustrated the proposed lease.

6. The Plaintiff avers that in his letter to the Defendant dated the 8th day of September, 1997 he categorically insisted on withholding the keys to the two duplexes comprising part of the property, the other part being a two storey building consisting of warehouses and several flats, pending the further deposit of the outstanding sum of N5,000,000.00 (Five million naira) only so as to aggregate same into the agreed rent of N 15,000,000.00 (Fifteen million naira) only.
7. The Plaintiff avers that the Defendant forcefully broke into the two duplexes, vandalized and made away with all his belongings comprising of furnishing, personal effects, wearing apparel, photographs, cooking utensils, pressing irons etc, a suit for which is in contemplation.
8. The plaintiff further avers that the two duplexes are to date being stripped bare of toilet tiles, water systems, interior decoration etc.
9. The Plaintiff avers that sequel to a power of Attorneys, Peter Obi Esq., held a meeting with Chief (Dr.) Sunny Odogwu, the alter ego of the Defendant, at his office in Grand Hotel in Asaba, on Saturday, the 15th day of May, 2004 proposing to Chief (Dr.) Sunny Odogwu, on behalf of the Defendant, a first offer of sale/assignment of the property.
10. The Plaintiff aver that Chief (Dr.) Sunny Odogwu rebuffed the offer claiming that the Defendant bought and owned the property.
11. The Plaintiff aver that the Defendant followed the false claim by issuing a threat in writing by on Felix Odogwu to one Stanley Chukwuma of Chuma & Co., an Estate Agent, whom his Attorney had agreed with to source for prospective assignee(s) forbidding them thereon.
12. The Plaintiff avers that the Defendants are committing waste on the property including refusing to settle NEPA Bills thereon.
13. The Plaintiff shall at the trial contend that:

(1) not having settled the rent for the proposed lease, the Defendant breached a fundamental term of the contract of the proposed lease.

(2) the Defendant not having settled the rent for the proposed lease acquired no estate, titled and/or any interest whatsoever on the property;

(3) having challenged the titled of the Plaintiff as beneficial owner, even when in breach of a fundamental covenant to settle the rent for the proposed lease, the Defendant thereby became an illegal occupant on the property; or, at best, an occupant by sufferance.

(4) the rent for the proposed lease was reduced to N1,000,000.00 (One Million Naira) only per annum instead of N1,500,000.00 (One Million, Five Hundred Thousand Naira) only per annum as an incentive to the Defendant to take up the proposed lease for 15 (fifteen) years.

(a) the rent of N1,000,000.00 (One Million Naira) only per annum instead of N1,500,000.00 (One Million, Five Hundred Naira) only per annum was less than the economic rent for such like property at all material time.

(b) with the advent of Constitutional Democracy or governance more business and people have moved into Asaba, Delta State Capital, thus leading to astronomical increases in rent by more than 150%, particularly for property on Nnebisi Road, Asaba.

(c) the collapse in the purchasing power/value of the Naira has aggravated rent increases in Asaba in general, and for Nnebisi Road, Asaba in particular, to over 200%.

14. The Plaintiff avers that by reason of the willful default of the Defendant to settle the due rent for the proposed lease he suffered untold financial losses as he could not do with N10,000,000.00 (Ten Million Naira) only what he intended to do with the N 15,000,000.00 (Fifteen Million Naira) only.
15. The Plaintiff shall at the trial contend that, assuming but not conceded, the proposed lease (which was aborted by the willful default of the Defendant to settle the rent) was indeed valid to the proportion of the rent satisfied – N10,000,000.00 (Ten Million Naira) only – the Defendant would nevertheless be entitled only to a – ten year lease at N1,000,000.00 (One Million Naira) only per annum, that is from August, 1997 to July, 2007 Pro rata.
16. The Plaintiff avers that the Defendant did not howsoever intend to sell or assign his interest in the said property, and did not do so.
17. The Plaintiff shall at the trial hereof found on all documents whether directly mentioned or implied and/or on all available remedies whether equitable or otherwise as applicable.
18. WHEREOF the Plaintiff claims against the Defendant as follows:-

(1) A DECLARATION that the letter by the eminent Chief Olisa Chukwurah, O.F.R., S.A.N. (deceased) dated the 11th day of July, 1997 evidencing the terms of the proposed lease as well as the engrossed copy thereof do not constitute a lease in law between the Plaintiff and the Defendant by reason of the willful default of the Defendant to settle the agreed rent thereof, notwithstanding the deposit of N10,000,000.00 (Ten Million Naira) only.

(2) A DECLARATION that the willful default of the Defendant to settled the agreed rent of N15,000,000.00 (Fifteen Million Naira) only notwithstanding the deposit of N10,000,000.00 (Ten Million Naira) only constitute the breach of a fundamental term of the proposed lease and consequently nullifies same;

(3) A DECLARATION that in consequence of the declaration (1) and (2) hereof being affirmed or so declared, the occupation of the property on the failed promise to pay the agreed rent of N15,000,000.00 (Fifteen Million Naira) only notwithstanding the deposit of N10,000,000.00 (Ten Million Naira) only constitute occupation subject to payment of economic rent thereon;

(4) A DECLARATION that the sum of N10,000,000.00 (Ten Million Naira) only deposited by the Defendant in consequence off the proposed lease constitute a counter offer and thus nullifies the proposed lease;

(5) A DECLARATION that the Defendant’s act and deed in preventing, obstructing or howsoever forbidding the Plaintiff or his Agents, servants, Attorneys or their nominee(s) from ingress and egress to/from No.222, Nnebisi Road, Asaba – is a breach of the Plaintiff’s right to the exercise of beneficial ownership thereon;

(6) A DECLARATION that the Plaintiff is entitled to economic rent for the use and occupation of the property from the Defendant from the 11th day of August, 1997 till judgment and until the judgment debt is satisfied for the use and occupation of the property;

(7) AN ORDER annulling, nullifying, cancelling, voiding and/or invalidating the contract of lease arising from the letter by Chief Olisa Chukwurah, O.F.R. S.A.N. (Deceased) dated the 11th day of July, 1997 and the engrossed copies thereof, if ever same constituted a contract of lease, by reason of the willful default by the Defendant in paying the rent of N15,000,000.00 (Fifteen Million Naira) only notwithstanding the deposit of N10,000,000.00 (Ten Million Naira) only;

AN ORDER authorizing that the N10,000,000.00 (Ten Million Naira) only deposited in consequence of the proposed lease of NO. 222, Nnebisi Road, Asaba be pro rated in satisfaction of the economic rent for the use and occupation of the property at the rate of N1,500,000.00 (one Million, five Hundred Thousand Naira) only per annum from 11th August, 1997 to and inclusive of 10th August, 1999- being N3,000,000.00 (Three Million Naira) only; N2,000,000.00 (Two Million Naira) only per annum from 11th August, 1999 to and inclusive of 10th August, 2001-being N4,000,000.00 (Four Million Naira) only; N2,500,000.00 (Two Million, five Hundred Thousand Naira) only per annum from 11th August, 2001 to an inclusive of 10th August, 2003 being N5,000,000.00 (Five Million Naira) only; N3,000,000.00 (Three Million Naira) only per annum from 11th August, 2003 to and inclusive of 10th August, 2004 – thereafter at the rent to determine by the Honourable court;

(8) IN THE ALTERNATIVE to prayer (7) hereof AN ORDER enabling His Lordship to suo moto determine the rental value of No. 222, Nnebisi Road, Asaba – taking into a count the location of the property, the state of influx of business and people to Asaba occasioned by the advent of Democratic governance with its multiplier effect on the movement of people, the collapse in the purchasing power/value of the Naira whereof inflation has galloped to conservatively 200% per annum on property value;

(9) IN THE ALTERNATIVE to prayer 18 (7) and (8) hereof AN ORDER that the sum of N10,000,000.00 (Ten Million Naira) only deposited in consequence of the proposed lease constitute rent at the agreed rate of N1,000,000.00 (One Million Naira) only per annum from 11th August, 1997 to an inclusive of 10th August, 2007 to and inclusive of 10th August, 2007 PROVIDED that the Defendants shall vacate the entirety of No. 222, Nnebisi Road, Asaba consisting of a Block of Flats and Warehouses and Two separate Duplexes not later than the 10th day of August, 2007 PROVIDED ALSO that the Defendant SHALL put, render and/or DELIVER the property in GOOD AND TENANTABLE REPAIR:

(10) PUNITIVE OR AGGRAVATED COST for falsely disputing the beneficial ownership of the property thus putting the Plaintiff to the unnecessary and onerous expense of establishing his beneficial ownership through Court processes.

(II) AN ORDER OF PERPETUAL INJUNCTION restraining, forbidding, preventing and/or howsoever disturbing the plaintiff, his Agents, Servants, Privies, Attorneys and/or whosoever lawfully authorized therefore from ingress and egress to/from No. 222, Nnebisi Road, Asaba-whether for the purposes of inspection for the sale/assignment of the property and/or for whatever lawful purposes.

DATED this 14th day of June, 2004.

(SGD.) Peter Obi Esq.

Bukie P. Obi & Associates,

No. 82, Mobolaji Bank-Anthony

Way, Ikeja, Lagos.

08037272188.

Whose address within Jurisdiction is

C/O Chuma & Company

224/294. Nnebisi Road, Asaba.

Delta State.

FOR SERVICE ON:

S.I.O. Industries Limited,

Off S.I.O. Towers,

No. 25, Boyle Street,

Onikan, Lagos.

OR

Kilometre 129, Benin-

Asaba Expressway, Asaba

Delta State.

On receipt of the statement of claim, the Respondent did not file a Statement of defence but brought a motion dated 5th July 2004 pursuant to the inherent jurisdiction of court to strike out the suit for want of jurisdiction. The said motion and a supporting affidavit are reproduced-

IN THE HIGH COURT OF JUSTICE, DELTA STATE OF NIGERIA

IN THE ASABA JUDICIAL DIVISION

HOLDEN AT ASABA

BETWEEN SUIT NO.A/110/2004/M3

CHIEF ROBERT O. AMAMIZE …. PLAINTIFF/RESPONDENT

AND

S.I.O. INDUSTRIES LIMITED …. DEFENDANT/RESPONDENT

MOTION ON NOTICE

BROUGHT PURSUANT TO THE COURT’S INHERENT

JURISDICTION

Take NOTICE that this Honourable Court will be moved on TUESDAY the 27th day of July, 2004 at the hour of 9 0′ clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Defendant/Applicant praying this Honourable Court for an order STRIKING OUT THIS SUIT FOR WANT OF JURISDICTION on the grounds that:

(1) The action is Statute Barred.

(2) The Plaintiff does not have the locus standi to institute this action.

OR ALTERNATIVELY:

(3) No right of action had accrued to the Plaintiff.

(4) The Statement of claim does not disclose any reasonable cause of action.

DATED THIS 5TH DAY OF JULY, 2004.

(SGD.) CHIKE ONYEMENAM ESQ.

DEFENDANT/APPLICANT’S COUNSEL

WHOSE ADDRESS FOR SERVICE IS

GEORGE – ANN CHAMBER,

(CORNERSTONE VILLA), BEHIND DEMA

KITCHEN, BY WEST-END ROUND ABOUT,

ASABA

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE

I, Mr. Dennis Afamefuna Nwabasha, Male, Adult, Christian, Nigerian Citizen of George-Ann Chambers, Cornerstone Villa, West-End, Asaba, Delta State do hereby make oath state as follows:-

1. I am the Law Office Manager of the Law Firm of Chike Onyemenam and Associates, Solicitors to the Defendant/Applicant, and by virtue of same I am fully conversant with the facts of this case, and I depose to this affidavit with the full consent and authority of the Defendant/Applicant.
2. The Defendant/Applicant is praying this Honourable Court to strike out this suit for want of jurisdiction on the grounds stated in the motion paper.
3. The Defendant/Applicant intends to rely on the Writ and statement of claim to move the aforesaid Motion, and shall not rely on any other facts.
4. The aforesaid Motion is brought under the Inherent jurisdiction of the Court and I verily believe that it will be in the interest of Justice to strike out this suit for want of jurisdiction.
5. I make this affidavit solemnly, conscientiously and in good faith, believing its contents to be true, correct, and in compliance with the Oaths Laws of Delta State of Nigeria.

(SGD.) DEPONENT.

SWORN TO at the High Court Registry,

Asaba, this 5th day of July, 2004.

BEFORE ME:

(SGD.) COMMISSIONER FOR OATHS.

Arguments were canvassed on both sides and in conclusion the learned trial Judge held as follows, “Having considered all relevant issues for the due determination of this application I have come to the conclusion that the same succeeds. Suit No. A/110/2004 Chief Robert O. Amamize V. S.I.O. Industries Ltd. is hereby struck out for want of jurisdiction as the same is statute barred.”

Dissatisfied with this ruling the Appellant filed a Notice of Appeal dated the 31st day of December 2004 consisting of eleven grounds out of which five issues were distilled. The Respondent also distilled five grounds of appeal and raised a preliminary objection to the competence of ground 9 of the Appellant’s grounds of appeal.

When this appeal came up for hearing on the 21st March 2003, Mr. Peter Obi counsel for the Appellant adopted and relied on the Appellant’s Brief of Argument dated 20th July 2005 and filed on the 26th July 2005 and urged this court to allow the appeal and set aside the ruling of the trial court. Mr. Chike Onyemenam Counsel for the Respondent adopted and relied on the Respondent’s Brief of argument deemed properly filed and served on the 9th October 2006 and urged this court to dismiss the appeal.

The bedrock or main issue for determination in this appeal is issue 2 in the Appellant’s Brief of Argument which incidentally is also issue (ii) in the Respondent’s Brief of Argument and that issue is as to whether the statute of limitation can be invoked in limine without filing a defence. This issue effectively covers Grounds 2, 4, 5, 7, 9 and 11 of the Grounds of Appeal. The Appellant has submitted, relying on the following cases AJIZWURA V. DISU (2001) 2 WRN 43 and PROVISIONAL COUNCIL OF OGUN STATE UNIVERSITY & ANOR V. MAKINDE (1991) 2 NWLR PART 175 at page 613 that the invocation of the limitation Law Cap 89 Laws of Bendel State 1976 applicable to Delta State is subject to Order 24 Rule 2 of the Bendel State High Court (Civil Procedure) Rules 1988, Rule I of which abolished demurrer. It was contended for the Appellant that the several declaratory reliefs and other reliefs contained in the Appellant’s Statement of Claim which the trial Judge failed to examine sought a determination of the status of the relationship between the parties in relation to the N10 million deposit which would amount to a Counter offer. As to whether the special defence of limitation can be raised in limine without first filing a defence, the Appellant submitted that the position of the law is sacrosanct and it is that the special defence of limitation must be pleaded. Reliance was placed on the following cases

GULF OIL COMPANY (NIG) LTD V. CHIEF OLUBA & ANOR (2002) 12 NWLR PART 780, page 92 at page 108; ONWUCHEKWA V. NOIC (2002) 2 sc (Part 110) page 28 ; FEDERAL REPUBLIC OF NIGERIA & ORS V. ZEBRA ENERGY LTD (2002) FWLR PART 92 page 1749; SAVANNAH BANK (NIG) LTD V. PAN AFRICAN SHIPPING TRANSPORT AGENCIES LTD & ANOR (1987) 1 NWLR PART 49 page 212; P.M. UDDOH CO. LTD V. SUNDAY (2001) FWLR PART 57 page 900.

As to whether by the limitation law of Bendel State applicable to Delta State, the trial Judge was not bound to determine the status of the transaction between the Appellant and Respondent before proceeding to apply the limitation law thereto, Appellant’s Counsel relying on the following cases-

AFROTEL TECHNICAL SERVICES (NIG) LTD V. MIA & SONS LTD (2002) 12 S.C. 65 (25-30); PATKUM INDUSTRIES LTD V. NIGER SHOE MANUFACTURING CO LTD. (1988) 12 SC 1; FERRAND V. WILSON (1845) 344, 385; DANTATA & ANOR V. MOUKTAR MOHAMMED (2000) 5 SC 1, 7, 8, 18, 20, 26/27; CHIEF ABU V. ODUGBO (2001) 7 SC (PART 1) 168, 221- 225, submitted that in the presence of several causes of action and the undetermined question of the relationship of the parties, the learned trial Judge was bound to settle the question before deciding the applicability of the limitation law. Appellant further submitted that where the statement of claim is seeking the determination whether there existed a lease or not and it is trite law that resort must be had to the statement of claim in the determination of the question, the learned trial Judge’s finding of a simple contract while refusing to pronounce on the claim before him was improper in law Appellant urged this court to set aside the decision of the learned trial Judge and cause the suit to be heard on the merit.

The Respondent on the other hand has submitted with respect to this issue – No 2 that a preliminary objection is not the same as a demurrer which has been abolished by Order 24 Rule I of the Bendel State High Court Civil Procedure Rules 1988 applicable to Delta State and that in a preliminary objection, the objector is not taken to have admitted the Plaintiffs claim as is the case in a Demurrer application and that the objection raised by the Respondent at the trial court was never brought under order 24 rule 1 of the Rules of Court but was brought under the inherent jurisdiction of the court challenging the jurisdiction of the court to entertain the action. Reliance was placed on GEOMEK (NIG) LTD V. MATORI (2003) F.W.L.R. PART 154 page 423 at 431; A.R.C. V. J.D.P. CONSTRUCTION (NIG) LTD (2003) F.W.L.R. PART 176 pages 667 and 681.

On the question of filing a Statement of Defence before a defendant can raise the issue of limitation, Respondent relying on the Supreme Court case of JUSTICE ANYA V. IYAYI (1993) 10 Kings Law Reports page 122 at page 134; (1993) 7 NWLR PART 305 page 290 submitted that a defendant who believes that he has a good ground of law on the face of the Statement of claim which if raised could determine the case in limine is entitled to raise same without filing a statement of defence but that such a defendant may also raise same in his statement of defence. Respondent went on to further submit that it is trite law that an issue of jurisdiction can be raised at any stage and at any time during the proceedings even for the first time at the Supreme Court. Reliance was placed on the following cases- N.D. I.C. V. C.B.N. (2002) FWLR (PART 99) page 1021 at 1036; A.O. OBIKOYA V. REGISTRAR OF COMPANIES (1975) 4 S.C. 31 at 34. Respondent went further to submit that the issue of limitation to the effect that a plaintiff has lost his right of action due to effluxion of time or that he does not have the locus standi to bring the action any more is an issue of jurisdiction that can be raised at any time even before pleadings have been exchanged. Reliance was placed on IKINE V. EDJERODE (202) FWLR (PART 92) page 1775 at 1811; P.N. UDDOH TRADING CO. LTD V. ABERE (2001) F.W.L.R. PART 57 page 900 at 922. Respondent submitted that the various cases relied on by the Appellant were inapplicable to the present situation. In conclusion Respondent submitted that an objection to the competence of a suit based on the statute of limitation which is an indirect challenge to the jurisdiction of the court to hear same can be raised by way of a preliminary objection on the face of the statement of claim and urged this court to so hold.

It is instructive at this stage to examine the provisions of Order 24 of the High Court of Bendel State (Civil Procedure) Rules 1988 applicable to Delta State especially Rules 1 and 2 which touch on the issue now being considered.

Rule 1 – No demurrer shall be allowed.

Rule 2 – Any party shall be entitled to rise by his pleading any point of law and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial.

Provided that by consent of the parties or by order of the court or a Judge on the application of either party, it may be set down for hearing and disposed of at any time before the trial.

(Underlining mine for emphasis)

These provisions are to my mind very clear and unambiguous. Rule 1 of Order 24 abolished demurrer. Before demurrer was abolished, it was possible to have a suit dismissed on grounds of law with out the necessity on the part of the defendant to file a statement of defence. With the abolition of demurrer order 24 rule 2 now makes it mandatory for the defendant to raise that point of law on which he relies in seeking the court’s favour to have the suit dismissed in his statement of defence. There is a plethora of judicial decisions and pronouncements on this subject matter. In P.N. UDDOH TRADING CO. LTD V. SUNDAY ABERE (2001) FWLR PART 57 page 900 at 906, the Supreme Court held that all that is necessary for the pleading of the statute of limitation is to plead facts enabling the court to hold that the action is statute barred. It is more succinctly put in the case of ALEX O. ONWUCHEKWA V. NIGERIA DEPOSIT INSURANCE CORPORATION (2002) 2 S.C. (PART 11) page 28 at page 34 thus, “A cardinal rule of pleading is that whenever a statute is relied on as a bar to the action it should be specially pleaded. See COBURN V. COLLINS (1877) 35 CH.D 373; HAYWARD V. LELY (1887) 56 LT 418. Also, a defendant who relies upon the defence of illegality should state the facts on which he relies in his pleadings. The law is well put in Bullen & Leake and Jacobs precedents of pleadings page 1199 that: where the defendant relies upon the defence of illegality he should distinctly raise that defence by his pleading and should state the facts or refer to facts already stated in the statement of claim so as to show clearly what the illegality is”.

(Underlining mine for emphasis).

See also BULLIVANT V. ATT. GEN. FOR VICTORIA (1901) A.C. 196 at page 204. The Respondent has tried to argue its way out of a tight corner on page 6 of the Respondent’s Brief of Argument by contending that what was filed by the Respondent was a preliminary objection and not a demurrer which was abolished by Order 24 Rule 1 of the High Court of Bendel State (Civil Procedure) Rules 1988 applicable to Delta State. That argument does not hold water. Making what is sought for appear to look like a “want of jurisdiction” issue is not helpful. What are the grounds upon which the Respondent seeks a ‘striking out of the Appellant’s case?-

(1) That the Appellant’s action is statute barred.

(2) Appellant does not have the locus standi to institute the action.

Are these not grounds of law which would have found their way into the Respondent’s Statement of Defence? The position can be likened to an ostrich that hides its head in sand oblivious of the fact that the rest of the body is exposed for all to see, The Supreme Court has constantly warned against Counsel disguising claims to achieve their particular purpose. Let it be said that the learned trial Judge was clearly in error to have regarded the Respondent’s application for the striking out of Appellant’s case as a Jurisdictional issue when he stated in his ruling at page 194 of the Record of Appeal as follows, “It therefore follows that Order 24 Rule 2 (of the High Court of Bendel State (Civil Procedure Rules 1988 applicable to Delta State) does not make it mandatory that when an issue of want of jurisdiction is raised by a defendant the defendant must raise it in his statement of defence first before he can apply to have it determined,” The cases of KOKORO-OWO V. OGUNKANBI (1993) 5 NWLR (PART 313) 630; HIGH FLOW FARM LTD. V. UNILAG (1993) 4 NWLR (PART 280) 235 and ANYA V. IYAYI (1992) 7 NWLR (PART 305) 209 relied upon by the learned trial Judge are inapplicable to the present application. It is clear that the application by the Respondent far striking out of the suit was in the nature of a demurrer which has been abolished by Order 24 Rule 1 of the Rules of Court earlier referred to. To give the application the coloration of a lack of jurisdiction by the court to entertain the suit simpliciter is misleading. The case of ANYA V. IYAYI (Supra) which learned counsel for the Respondent made heavy weather of deals with the issue of jurisdiction which the Respondent’s application is not about and not an the issue of demurrer which the application is truly about. Demurrer is dead and has since been buried. The Respondent’s application for striking out the suit under the grounds stated in the motion is only a futile attempt to resurrect it albeit through the guise of a lack of jurisdiction of the trial court to entertain the suit. UDDOH’S case (Supra) and ONWUCHEKWA (Supra) are also Supreme Court authorities which state that whenever a ground of law is relied on by the defendant as a bar to the action it must be specifically pleaded.

I shall now deal with issue 3 in the Appellant’s Brief (same as issue 4 of the Respondent’s Brief of Argument and which is related to the subject matter just considered and it is as to whether Order 24 Rule 5 of the Bendel State High Court (Civil Procedure) Rules 1988 applicable to Delta State did not forbid a challenge in limine to declaratory claims. The learned trial Judge’s interpretation of Order 24 Rule 5 is that, “what the provision emphasizes is that a claim cannot be struck out as disclosing no cause of action simply because the claims are declaratory in nature. Such declaration must under limb 4 of Order 24 disclose a cause if they must survive”. Appellant’s counsel has submitted that the position of the learned trial Judge does not represent the true position in law and has referred this court to DANTATA V. MOUKTAR MOHAMMED (2000) 5 S.C. 1, 7, 8, 18, 20; CHIEF IKINE & ORS V. CHIEF ODJERODE & ORS (2001) 12 S.C. (PART 11) 94, 128; ATT. GEN. (KADUNA) V. HASSAN (1985) 2 NWLR PART 8, page 483 at 497; BEREDUGO V. COLLEGE OF SCIENCE & TECHNOLOGY (1991) 4 NWLR (PART 187) 651; IZUCHUKWU & ORS V. OKONKWO & ANOR (2002) FWLR PART 92 page 1708. To this the Respondent contended in its Brief of Argument that it never raised the objection to the suit at the court below on the ground that the Appellant’s claims were merely declaratory in nature, rather the Respondent’s objection was simply to the effect that the Appellant’s action was statute barred and that he had lost his right of action and that no reasonable cause of action had been disclosed.

The Respondent further submitted that Order 24 rule 5 never barred any objection to any action once it is declaratory in nature and neither did cases cited in the Appellant’s Brief of Argument decide that once an action is declaratory, no objection to same can be raised. Reliance was placed on the following cases: OGUNSANYA V. DADA (1990) 6 NWLR PART 156 page 347 at 361 (B-C); IRE V. AHMED (1992) 4 NWLR PART 235 page 311 at 319 (B-E).

Order 24 Rule 5 of the High Court of Bendel State (Civil Procedure) Rules 1988 applicable in Delta State states as follows – “No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the court may make binding declarations of right whether any consequential relief is or could be claimed or not”.

Ample light was thrown on the interpretation of Order 24 Rule 5 by the Supreme Court in the case of ALHAJI USMAN DANTATA & ANOR V. MOUKTAR MOHAMMED (2000) 5 S.C. 1 at page 7 where the apex court in interpreting Order 22 Rule 5 of the High Court (Civil Procedure) Rules of Lagos State which has similar provisions with Order 24 Rule 5 of the High Court of Bendel State (Civil Procedure) Rules 1988 applicable to Delta State had held that from the provisions of this rule it is clear that declaratory judgments are not to be regarded as auxiliary or consequential and that a claim for a declaration is itself a cause of action created by the rule. Reference was made in this case to the English case of EASTHAM V. NEWCASTLE UNITED FOOTBALL CLUB LTD. (1963) 3 All E.R. 139 wherein it was held that even though there is no cause of action the court has ample power to grant a declaratory judgment. The Supreme Court in this case – DANTATA’s case (Supra) had observed thus, “As a declaratory relief is an independent and a separate cause of action on its own in that it is the law that the jurisdiction of the court to make a declaration is not confined to cases where a plaintiff has a complete and subsisting cause of action but may also be employed in all cases where the Plaintiff conceives he has a legal right.” See also ADIGUN V. ATT. GEN OF OYO STATE (1987) 1 NWLR (PART 53) 678 at 741; IGBOKWE V. UDOBI (1992) 3 NWLR (PART 228) 214; GUARANTEE TRUST COMPANY OF NEW YORK V. HANNAY & COMPANY (1951) 2 K.B. 536 at 572. These authorities clearly contradict the position adopted by the learned trial Judge.

From the foregoing it is therefore clear that the learned trial Judge was in error in striking out the suit. The Appeal is therefore allowed and the ruling of Z.A. Smith J delivered on the 6th October 2004 in Suit No. A/110/2004 upholding the preliminary objection against the competence of the suit is hereby set aside and the suit is hereby restored to be heard and determined on the merits by another Judge of the Delta State High Court other than Z.A. Smith J.

There shall be N5,000 costs in favour of the Appellant against the Respondent.

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Other Citations: (2007)LCN/2429(CA)