Ekpe Ansa Okoho Otudor V. Ekanem Ansa Otudor (2006)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

The Respondent, as plaintiff, instituted Suit No C/222/95 in the High Court of Cross River State, Calabar Judicial Division against the appellant, as defendant. He claimed the following reliefs:

“1. An order of perpetual injunction restraining the defendant by himself or his servant, agents, privies or representatives in interest from interfering or intermeddling in any way or shape with the estate of the deceased Ansa Okoho Eyo Otudor.

2. An order of perpetual injunction restraining the defendant from presenting himself as the lawful administrator or representative of the deceased’s estate in any other way, however.
3. A declaration that the letters of administration dated 30th day of March, 1995 and issued to the defendant herein is null, void and of no effect.”

Pleadings were duly filed and exchanged and trial in the matter opened before Ekpe, J. on 1st December, 1998. After the evidence in chief and cross-examination of Francis Bassey as PW1 learned counsel for the defendant (respondent herein) set down four issues for the trial Court to determine, pursuant to Ord. 24 r. 3 of the High Court Rules of Cross River State. The four issues, lifted from paragraph 11 of the statement of defence are as follows:

“i. That the plaintiff’s suit is not properly constituted.

ii. That it is not open to the plaintiff or anyone else to contend that the defendant who is a Nigerian citizen by birth has no proprietary interest in the property of his late father having regard to S. 39 (2) of the 1979 Constitution of the Federal Republic of Nigeria.

iii. That even then in the light of the pleadings and evidence before the Court, the plaintiff has not been able to establish any legal ground for the revocation or impeachment of the letters of administration duly granted by the Court.

iv. That the reliefs claimed by the plaintiffs are not sustainable in Law”

Issue No (iii) is curious for at the time the statement of defence was settled, the plaintiff had not offered any evidence in proof of his claim.

This issue was lifted from the statement of defence.

The learned trial Judge took the submissions of learned counsel on the issues raised and on 18/2/2000 delivered a considered ruling in the matter. In its ruling the trial Court regarded the issues set down by the appellant as technicalities and formulated two issues of its own from counsel’s arguments:

“1. That the defendant is not the son of the deceased whose estate he has letters of administration to administer.

2. That the letters of administration ought to be revoked on the grounds that the plaintiff is not the recognized son of the deceased Ansa Okoho Otudor.”

(See page 53 of the records). The Court held “From the totality of all the evidence so far adduced and the exhibits filed herein, this Court is minded to hold the following views:

1. That the plaintiff Ekanem Ansa Otudor is indeed of unsound mind as majested in the hospital records and has rightly and legally chosen Francis Bassey her best friend to act on her behalf.
2. That the defendant Ekpe Ansa Okoho Otudor alias Ekpe Ansa Eyo has not from the pleadings satisfied this Court of his paternity and that the deceased Ansa Otudor never acknowledged the defendant’s paternity until his death in 1971.
3. That the letters of administration dated 30/3/95 was not rightly issued to the defendant as the defendant has not been so acknowledged by his father and thus cannot share in his estate after his death. Consequently, judgment is hereby granted to the plaintiff as per the writs of summons.” (See pp.54-54).

Aggrieved by the said ruling the defendant, now appellant, appealed to this Court on six grounds.

Consistent with the rules and practice of the Court, the parties herein filed and exchanged briefs of argument. In his brief of argument, learned counsel for the appellant framed four issues for determination, thus:

“(i) Whether the learned trial Judge was right to formulate two different issues upon which judgment was denoted to the plaintiff in advance when the plaintiff did not close her case and the defendant and witnesses were yet to testify.

(ii) Whether the learned trial Judge was right to enter final judgment at that preliminary stage of the proceedings having regard to Order 24 of the High Court Civil Procedure Rules of Cross River State.

(iii) Whether the plaintiff’s case was not liable to be dismissed on grounds that it discloses no reasonable cause of action.

(iv) Whether this suit was properly constituted at the time it went to trial.”

In his own brief of argument learned counsel for the respondent, under the heading “PRELIMINARY OBJECTION” stated that the respondent would raise a preliminary objection to the competency of the appeal on six stated grounds. Learned counsel argued the preliminary objection in his brief before formulating the following three issues for determination.

“a. Whether the learned trial Judge was right in entering judgment in favour of the plaintiff.

b. Whether Order 24 Rule 2 of the High Court Civil Procedure Rules 1987 (Cross River State) allows for the raising of issues during trial.

c. Whether the learned trial Judge rightly held that the appellant had not satisfied the trial Court of his paternity.”

Learned counsel for the appellant filed a reply brief of argument.

At the hearing of the appeal learned counsel for the appellant adopted and relied on his brief as well as the reply brief and urged the Court to allow the appeal.

In his own case, learned counsel for the respondent adopted and relied on his brief, including the preliminary objection and urged the Court to dismiss the appeal.

In issue one in his brief, learned counsel for the appellant argued that the appellant’s right to fair hearing under s. 36 of the Constitution of the Federal Republic of Nigeria 1999 was breached. He said the trial Court summarily dismissed the four issues for determination and that the two issues framed by the Court can only be properly decided at the conclusion of the trial if the objection was over-ruled. He relied on Kotoye Vs. CBN (1989) NWLR (pt 98) 419, Commissioner of Works, Benue State Vs Devcon Ltd (1988) NWLR (pt 83) 407 at 408, Kaimi Olanrewaju & Ors Vs Amos Bamgboye & ors ( 1991) 3 L RCN 897 (923) and urged the Court to set aside the ruling of the Lower Court as it occasioned a miscarriage of justice.

On issue 2 learned counsel argued that it was wrong for the trial Court to enter judgment after argument on the 4 issues presented by the appellant. He relied on Order 24 Rule 3 of the High Court Civil Procedure Rules of Cross River State 1987. He said the application raising the 4 issues after the testimony of the PW1 was in line with the Supreme Court case of NDIC Vs CBN (2002) 18 WRN 1 (15). Counsel referred to Mammalian Vs. Adebayo & Ors (2003) 8 WRN 102 (122) and urged the Court to allow the appeal on ground 2 from which issue 2 was formulated. On issue 3 counsel argued that viewed from evidence and or law, the plaintiff’s case in the Lower Court disclosed no reasonable cause of action. In relation to the letters of administration he submitted that based on S. 42 (2) of the 1999 Constitution, the Court is barred from inquiring into the circumstances of birth of the appellant. He urged the Court to hold that in law and the evidence led, the respondent had no cause of action.

The 4th issue deals with the competence of the suit. Learned counsel argued that the respondent cannot represent the lunatic in the suit in which he has personal interest which would conflict with his duty. He referred to Order 11 r. 13 of the High Court rules and argued that failure to file a written authority in the registry is fatal to the case, so also is the failure to join the probate registrar who is an essential party to the suit. Also counsel argued that the suit is incompetent as the appellant was sued to in his personal capacity and not as an administrator. He urged the Court to dismiss the respondent’s case.

In his argument on the preliminary objection learned counsel for the respondent contended that the appeal is incompetent on the following grounds:

1. All the grounds of appeal of the appellant’s Notice and grounds of appeal are prolix, argumentative and conclusive.
2. Grounds 1, 2, 3, 5 and 6 of the appellant’s Notice and Grounds of Appeal are not based on the decision of the Lower Court appealed against:

3 The particulars of error in grounds 1 and 5 do not relate to the said grounds of appeal:

4. Lack of sufficient particulars of misdirection in grounds 3 of the Appellant’s Notice and Grounds of Appeal.
5. Issues for determination, especially issues Nos 1, 3 and 4 thereof, are not based on any of the Appellant’s notice and Grounds of Appeal; and
6. The reliefs sought are unknown and this Honourable Court has no original jurisdiction to grant such reliefs as stated by appellant in his Notice and grounds of Appeal.

Learned counsel made copious submission on the six points above. He cited Order 3 rule 2 (3) and (4) of the Court of Appeal Rules 2002 and a plethora of cases including Okudo vs IGP (1998) 1 NWLR (pt 533) 335 at 340, Okumochi Vs Sowumi (2004)2 NWLR (pt 856) 1 at 3, Abiola Vs Abacha (1997) 6 NWLR (pt 509) 413 at 425. In conclusion, counsel submitted that the reliefs sought in the Notice and Grounds of Appeal are strange and unknown to the appellate practice. He argued that the court has no original jurisdiction to grant such reliefs.

In case the preliminary objection is over-ruled, counsel argued the three issues he said he framed from the Appellant’s grounds of Appeal. Arguing issue one (relating, according to counsel to grounds 1,3,5 and 6) counsel referred to the 4 issues set down at the instance of the appellant for hearing and said the appellant exercised the right to move the court to dismiss the suit without any need to adduce evidence in support of the statement of defence. He cited Mobil Oil Nigeria Ltd Vs Federal Board of Internal Revenue (1977) 3 SC 1 at 5 and submitted that the court can not interfere with the exercise of the appellant’s right to adduce evidence or rely on the issues set down for hearing. He relied on Akanbi Vs Aluo on the decision not to call evidence. On the issue of fair hearing he relied on Adeniran Vs Ashabi (2004) 2 NWLR (pt 857) 375 at 399 in his argument that the appellant was given the opportunity of being heard in his defence. He relied further on Amana Vs Robinson (1979) 3 and 4 SC 1, DPMS Ltd Vs Larmie (2000) 5 NWLR (pt 655) 138 at 150 in his argument that the Court below was right to have resolved the matter against the appellant who chose not to call evidence. He stated the principle, that pleadings must be proved by evidence and relied on S. 137 (1) of the Evidence Act Laws of the Federation 1990 and Adekanbi Vs Falami (1998) 11 NWLR (pt 574) 498, Oikherelue Vs Inwanfero (1997) 7 NWLR (pt 512) 226. On the authority of the Supreme Court in Toriola Vs Williams (1982) 7 SC 27 or NSCC Vol. 13 187 counsel submitted that the appellant having failed to call evidence, is bound by the evidence adduced by the respondent.

On issue 2 counsel for the Respondent argued that the issues raised under Order 24 R. 2 of the High Court Civil Procedure Rules ought to have been raised before the commencement of trial. He contended that the trial court was bound to give effect to the provision of the Order as the rules of court are meant to be obeyed. He relied on UTC Vs Pamotei (1989) 2 NWLR (pt 103) 244 at 296.

In issue 3 counsel said the issue is not that of inquiry into the circumstances of the appellant’s birth, but rather it is that the appellant is a total stranger to the family. He argued further that only the late Ansa Okoho Eyo Otudor would have acknowledged the appellant as his son but did not do so until he died in 1971 and since the appellant was not so acknowledged he has no interest in the estate of the deceased. He relied on Olympio Vs Oluwole (1968) NWLR 469 and Dejonwo Vs Dejonwo (1993) 7 NWLR (pt 306) 483 at 507. He contended that the trial Court was right in its decision that the appellant who led no evidence failed to prove his alleged paternity. He urged the Court to dismiss the appeal.

In his reply brief learned counsel for the appellant spent time and energy on what he called “An overview” and “summary of facts”. He then submitted with authorities, that the preliminary objection is spurious and urged the Court to discountenance same and decide the appeal on merit. Counsel for the appellant then replied to each of the three issues argued in the respondent’s brief and asked for judgment for the appellant.

I shall first determine the preliminary objection raised by the respondent in his brief of argument thus

“The respondent will at the hearing of this appeal raise a preliminary objection on the competency of…”

Learned counsel argued the preliminary objection on six grounds in his brief. While it is usual for the Court to allow arguments on preliminary objection to be incorporated in the briefs, the respondent has a duty to comply with Order 3 R. 15(1) of the Court of Appeal Rules 2002 hereunder reproduced: Order 3 R. 15(1)

“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with 20 copies thereof with the registrar within the same time.”

This means that the Respondent has to present his notice together with 20 copies thereof to the Registrar of the Court who shall assess same and collect the appropriate filing fees. Once the notice has been filed, argument thereon can be incorporated in the brief of argument. In this case the Respondent did not file a notice of preliminary objection at all and the argument on preliminary objection in his brief had no foundation. The argument in the Respondent’s brief of argument is predicated on a non-existing notice of preliminary objection. The said argument and the reply thereto are hereby discountenanced.

The crucial point in this appeal is the application of Order 24 of the High Court (Civil Procedure) Rules of Cross River State 1987. I consider the appellant’s issues one and two germane to the determination of the appeal. The Respondent’s issue one is subsumed in the appellant’s issue two. I will adopt the appellant’s issues number one and two for the determination of the appeal. The other issues raised by the parties relate to the merit of the case which should not be an issue in this appeal. The two issues are:

“1. Whether the learned trial Judge was right to formulate two different issues upon which judgment was denoted to the plaintiff in advance when the plaintiff did not close her case and the defendant and his witnesses were yet to testify.

2. Whether the learned trial Judge was right to enter final judgment at that preliminary stage of the proceedings having regard to Order 24 of the High Court (Civil Procedure) Rules of Cross River State”

The proceedings in the Lower Court is in lieu of demurrer and not on demurrer. In the latter case where and when it existed the defendant raising same is deemed to have admitted the truth of all the allegation of fact contained in the plaintiff’s statement of claim. In that case the Court will not allow evidence in respect of matters of fact. The defendant is therefore not required to file a statement of defence but will raise the issues upon service on him of the plaintiff’s statement of claim. Once the defendant has joined issues on facts with the plaintiff by filing his statement of defence he is estopped from raising the issue of demurrer. See Mobil Oil (Nigeria Plc) Vs AAL 36 INC. (2000) 77 LRCN 918 at 931 – 932. In proceeding in lieu of demurer the preliminary issues to be raised by the defendant are required to be set out in the statement of defence before he can raise them. See Mobil Oil Nig. Plc. Vs AAL 36 INC (supra). One factor common to both proceedings i.e. demurrer and proceeding in lieu of demurrer is that the issues raised must be issues of law and not fact. See Order 24 r. 2 of the Cross River State High Court Rules which provides that

“Any party shall be entitled to raise by his pleadings 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.” (Underlining mine for emphasis).From the provision reproduced above, it would appear that the setting down of the issues after the testimony of the PW 1 cannot be faulted. The issues lifted from paragraph 11 of the statement of defence are:

“11. The defendant avers specifically that this suit is totally an abuse of the process of Court in that it does not contain any triable issue upon which this Honourable Court is expected to adjudicate having regard to the following:-

(i) That the plaintiff suit is not properly constituted.

(ii) That it is not open to the plaintiff or anyone else to contend that the defendant who is a Nigeria citizen by birth has no proprietary interest in the property of his late father having regard to S. 39(2) of the 1979 Constitution of the Federal Republic of Nigeria.

(iii) That even then in the light of the pleadings and evidence before the Court, the plaintiff has not been able to establish any legal ground for the revocation or impeachment of the letters of Administration duly granted by the Court.

(iv) That the reliefs claimed by the plaintiff are not sustainable in Law.”

The above are issues of fact not law and it is immaterial that the Lower Court found that “At this junction both learned counsel agreed that certain issues in the statement of defence be set down for trial and put the plaintiff’s counsel on notice.” (See page 57 of the certified true copy of the records). It is the duty of learned counsel for the parties as well as the trial Court to ensure that the “certain issues in the statement of defence set down for trial” are issues of law and not facts.The initial mistake of addressing the issues of fact raised in violation of Order 24 Rule 2 of the High Court Rules (supra) led to other errors.

Thus the Court resorted to the preponderance of evidence (see page 54 of the records).

Even if the issues were issues of law, the Lower Court is bound to decide on them rather than formulate its own issues unrelated to the issues raised before it. The two issues formulated by the Court are:

“1. That the defendant is not the son of the deceased whose estate he has letters of administration to administer.

2. That the letters of administration ought to be revoked on the grounds that the plaintiff is not the recognized son of the deceased Ansa Okoho Otudor”

The above issues raised by the trial Court suo motu are bedeviled by fundamental defects. They are issues of fact just like the issues raised by the defendant and secondly they are completely unrelated to the issues set down for trial by the appellant. The Court in its superior wisdom can modify, summarize or even reframe issues presented for determination in order to do justice to the parties, which is the purpose of its existence. See Ogwuegbu Vs. Agamuo & Ors (1999) 7 NWLR (pt 609) 144 CA.

In the case at hand the trial Court descended into the arena of conflict, thus abandoning its adjudicatory rule in litigation and participating in the conflict as if it were a party thereto. This, the Court can hardly do without giving undeserved advantage to one side to the detriment of the other side. The effect is to tilt the balance of justice and this is fatal to the proceedings. See Okapo Vs Sunmorui (1987) 2 NWLR (pt 58) 587, Akana Vs Silver Edge Shipping Agencies (1987) 4 NWLR (pt 63) 472. Even if the issues set down for trial were in conformity with order 24 r 2 of the High Court Rules (supra) the Court is not entitled to abandon them in preference to issues formulated suo motu and which issues are different from the ones presented by the appellant. Even if the Court can properly raise the issues suo motu it cannot decide upon such issues without giving the parties opportunity to be heard. See Ugo Vs. Obiekwe (1989) 2 SC (pt 11) 41. I resolve issue one in favour of the appellant.

Issue two calls for a consideration of Order 24 Rule 3 of the High Court Rules (supra) which provides: Order 24 r. 3 “If, in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge may there upon dismiss the action or make such order therein as may be just.” The rule deals with issues of law and I have already determined that the issues set down by the appellant and the issues framed by the Court suo motu and upon which it based its decision are issues of fact. The short answer to issue two is that the learned trial Judge was in error to have entered final judgment based on the said issues. But assuming, without conceding, that the, issues raised by the appellant were issues of law and the Court found in his favour the proper order would have been the dismissal of the Respondents suit or that part of the claim to which the issues relate. On the other hand if the Court determined the issues against the appellant the proper procedure would be to continue hearing in the main suit and determine same on its merit. The Court should not have relied on the preponderance of the evidence at a stage when only one witness testified or on pleadings (See page 54 of the records), which do not constitute evidence before the Court. The second issue is resolved also against the respondent. Accordingly the appeal is allowed.

The appellant urged us to allow the appealed and dismiss the respondent’s case. Granting this relief will amount to a greater error than the error of the Lower Court in giving judgment to the respondent after the trial of the issues set down for trial. The case is to be heard and determined on the merit. I therefore order that the case be remitted for trial de novo by a Judge of the High Court of Cross River State other than Ekpe J. who presided over the case.

I make no order as to costs.

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Other Citations: (2006)LCN/2096(CA)