Fidelis Ejike O. Ume & Ors. V. Nigeria Renowned Trading Co. Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A. 

The dispute which has given rise to the motion has come a long way. It commenced from the High Court Onitsha, and got to the Supreme Court. It is making a repeat journey or trip. I need not tell the full story in this interlocutory matter. That has to wait probably, till the appropriate time. For now, I have to deal with the application brought by the applicant, Chief Dr. F. Ejike O. Ume. It is for stay of proceedings “in Suit No.0/403/92 pending the determination of the appeal against the-order of the Onitsha High Court contained in the ruling of His Lordship Hon. Justice C.J. Okoli on the 3rd day of April 1995 refusing to hear two motions which, inter alia, challenged the jurisdiction of the court and striking them out without hearing the applicants.”

Moving the application in person, Chief Dr. Ume, in his own right as Senior Advocate of Nigeria, relied on Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979, Order 3, Rule 3 of the Court of Appeal Rules, the 36 paragraph affidavit in support as well as the exhibits Verified therein. He submitted that where a party has not been given an opportunity to be heard, or defend himself or through counsel of his own choice, that amounts to breach of the principle of fair hearing, as enshrined in Section 33 of the 1979 Constitution. He relied on F.O.N. Atake v. Chief Nelson Afejuku (1994) 9 NWLR (Pt.368) 379 and Elder Brown v. Elder Brown (1994) 7 NWLR (Pt.355) 217 at 232 – 233. Elder Brown v. Elder Brown (1994) 7 NWLR (Pt.355) 217 at 232 – 233.

He contended that where an applicant has challenged the jurisdiction of the lower court which is refused, an appellate court will grant it. The court from where the appeal is lodged and the court to where the appeal is lodged have a duty to preserve the res and that res is the appeal, learned Senior Advocate submitted. He relied on Kotoye v. Saraki (1993) 5 NWLR (Pt.296) 710 at 723.

Learned applicant contended that there are arguable points of law in the appeal. He referred to the Notice of Appeal and urged the court to grant the application in the interest of the preservation of the res.

Mr. B. O. Anyaduba, the 2nd respondent associated himself with the submissions of the applicant and urged the court to grant the application.

Learned Senior Advocate for the plaintiff/respondent, Mr. G.R.I. Egonu, in opposing the application relied on the 47 paragraph counter-affidavit sworn to on 28th June, 1996, the 14-paragraph counter -affidavit sworn to on 30th January, 1997 as well as the 39-paragraph affidavit sworn to on 3rd March, 1997.

Referring the court to the relevant paragraphs of the counter-affidavits, learned Senior Advocate submitted that the lower court overruled the objection of the applicant to jurisdiction and that a similar application for stay of proceedings at the lower court was dismissed on 19th June, 1995, and the applicant had 15 days within which to file a similar application in this court. Learned Senior Advocate argued that once an issue of jurisdiction has been previously dismissed, similar issue cannot be entertained.

Relying on Order 3 rule 3(3) of the Court of Appeal Rules, 1990, learned Senior Advocate submitted that the present application must be dismissed because it was not brought within the prescribed period of 15 days and no leave to extend time having been sought and granted.

The applicant, in his reply, submitted that the application is competent by virtue of section 6(6) of the 1979 Constitution and Order 3 Rule 3(4) of the Court of Appeal Rules. He submitted that by the combined effect of the constitutional provision and Order 3 Rule 3(4) of the Court of Appeal Rules, this court can entertain the application. Learned Senior Advocate argued that since Order 3 Rule 3(4) appears directory and not mandatory, this court can mitigate anything in the rule. To the applicant, the position should have been different if the mandatory “shall” was used. He urged the court to discountenance the decision of Chief Ojukwu v. Onyeador, supra, because the facts are not the same. He pointed out that while section 6(6) is a constitutional provision, Order 3 Rule 3(3) is a rule of court.

The applicant submitted that the counter affidavits of 39 paragraphs and 47 paragraphs cannot be relied upon because they were not duly exhibited in the counter-affidavit of 14 paragraphs. He urged that paragraph 13 of the counter-affidavit of 14 paragraphs does not avail the respondent because the facts in a counter-affidavit must be referrable to the motion in support of the relevant motion. Since the two counter-affidavits of 39 paragraphs and 47 paragraphs were in response to the affidavits which have been withdrawn they cannot stand, applicant contended. Once a motion is struck out, the affidavits in support as well as the counter-affidavit, including exhibits annexed thereto, go with the motion, applicant argued. The court can only look at live documents in its file and not dead documents applicant further argued.

Mr. Egonu, S.A.N., pointed out that the counter-affidavit of 39 paragraphs is before the court, and the court is entitled to look at the documents in its file, although a motion is struck out. He urged the court to look at all the counter affidavits.

There are quite a handful of affidavits which have generated some heat in the different positions taken by parties and or counsel. Applicant sought leave of court to withdraw his motion dated 18th October, 1996 and filed on 13th November, 1996. The motion was accordingly struck out. What is the legal status of an affidavit which is deposed to in a motion struck out? The applicant submitted that the affidavit is in law dead. I agree with him. A motion which is struck out of an affidavit which is deposed to in a motion struck out? The applicant submitted that the affidavit is in law dead. I agree with him. A motion which is struck out goes with the supporting affidavit, including exhibits, if any. What happens to counter-affidavit in respect of the motion struck out? The applicant and learned Senior Advocate for the plaintiff/respondent take divergent positions. While the applicant submits that the counter-affidavit is also dead, learned Senior Advocate submits that the court can make use of it. The applicant is correct. With respect, learned Senior Advocate is wrong. Let me try to draw a fairly remote analogy. There cannot be a statement of defence without a statement of claim. There cannot be a Reply without a statement of defence. Similarly, there cannot be a respondent’s brief without an appellant’s brief. There cannot be a Reply brief without a respondent’s brief. Therefore there cannot be a counter-affidavit without an affidavit in support of a motion. Accordingly, where an affidavit in support of a motion is gone, a counter-affidavit based on it can no longer stand. It goes with the affidavit in support.

As indicated above, the motion which was struck out by this court on 5th March, 1997 at the instance of the applicant was dated 18th October, 1996 and filed on 13th November, 1996. In addition, two motions of Mr. Anyaduba were struck out on 5th March, 1997, following an application for their withdrawal. They are CA/E/89/M1/96 dated 13th November, 1996 and CA/E/89/M4/96 dated 24th February, 1997. By this, the only counter-affidavit of the plaintiff/respondent which is current and therefore relevant is that of the 14 paragraphs dated 3rd March, 1997 and filed on the same day. Paragraph 9 of that counter-affidavit is relevant. It reads:-

“That the Honourable Justice C.J. Okoli after refusing the application for stay of proceedings in the above case on the 19th day of June, 1995, there and then referred the case to the Administrative Judge to assign the case to another Judge for hearing and determination, that it was the Administrative Judge of the High Court, Onitsha that assigned Suit No. 0/403/92 to His Lordship, the Honourable P.I. Amaizu for hearing and determination.”

The relevant averment is the first arm which is the refusal of the application for stay of proceedings by Okoli, J. on 19th June, 1995.

It is clear from paragraph 9 of the counter-affidavit dated 3rd March, 1997 that this application was brought after the 15 days period provided for under Order 3 Rule 3(3) of the Court of Appeal Rules, 1990. The sub-rule provides:”

Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal”

The applicant submitted that the provision is not mandatory but permissive in the light of the word “may”. I do not agree with him. In my view, the word “may” in the context is not used in contradistinction to “shall” but rather it conveys a discretionary power on the part of an applicant. In other words, an applicant whose application has been refused in the court below, could if he so wishes, make a similar application to this court. The word “may” underscores the fact that an applicant is not under a duty to make a similar application in this court. As a matter of fact, there are known cases where applicants stop at the court below and decide to hear the matter on its merits rather than pursuing another application for stay of proceedings. My understanding of the provision is that if an applicant decides to, make a similar application, he must do so within a period of 15 days after the date of the refusal of the first application by the court below.

Where an applicant fails to do so, the rules enjoin him to seek for enlargement of time to enable him make the application. It is trite law that where an enabling rule provides for leave to file a court process, failure to seek and obtain the leave, before filing the process will automatically render the process incompetent, as the court lacks jurisdiction to entertain it. See generally Tilbury Construction Co. Ltd and another v. Ogunniyi (1988) 2 NWLR (Pt.74) 64; Metal Construction (West Africa) Ltd. v. Migliore and Others (1990) 1 NWLR (Pt. 126) 299; Chief Ojukwu v. Miss Onyeador (1991) 7 NWLR (Pt.203) 286. Accordingly, it is my view that this application which was brought out of time is incompetent as it offends Order 3 Rule 3(3) of the Rules of this court.

What should this court do in the circumstance? Should the court dismiss the application on the ground that it is incompetent or should it be struck out? That is the next consideration. There is a procedural distinction between dismissal of a matter and striking it out. Black’s Law Dictionary defines dismissal as “an order or judgment finally disposing of an action, suit, motion, etc., without trial of the issues involved”. With respect, the second limb of the definition may be correct in American law, but is not so in Nigerian Law. In the latter, an action, suit or motion which has been fully tried could be dismissed. As a matter of law, it is such category of matters that attract more the juridical penalty of dismissal. This is not to say that Nigerian courts do not dismiss matters coming within the embrace of Black’s Law Dictionary definition of the word. They do.

In Olowu and Others v. Abolore and Another (1993) 5 NWLR (Pt.293) 255, the Supreme Court held that the Court of Appeal Rules give the Court of Appeal the power to dismiss an appeal in the following circumstances, viz: (a) When there is non-compliance on the appellant’s part with the conditions of appeal. This is by virtue of Order 3 rule 20(1). (b) When the appellant fails to appear when his appeal is called for hearing. (c) When the appellant fails to file his brief of argument within the time provided in Order 6 rule 2 or within the time as extended by the court to do so. This is by virtue of Order 6 rule 10. See also Onumajuru v. Akanihu and Others (1994) 3 NWLR (Pt.334) 623. The obvious should be stated that an appeal which is not meritorious will be dismissed.

If a matter is dismissed on its merits, it cannot be resuscitated. It finally dies and the pleas of res judicata (if a civil matter) or autrefois acquit or autrefois convict (if a criminal matter) will avail the other party. It is not correct law that any matter dismissed cannot be resuscitated. It depends upon the factual situation and the particular order of the court in the light of the enabling statute or law.

On the other hand, a matter struck out could be revived by the party. This he could do either by repeating the same court process or by an amended form; in either case, returning the process in its original or amended content to the cause list. The order of striking out is mostly invoked where either the court process is incompetent or the party lacks competence or locus standi. Similarly, where the court lacks competence or jurisdiction to hear the matter, the appropriate order to make is one of striking out. This is to enable the party have another look at the process and see whether he can carry out, what one may naively call “some repairs”, to bring back or return the matter to the jurisdictional “stream” of the court.

It is available only as a general statement of law that while an order of dismissal puts an end to a claim, an order of striking out, like that of non-suit, keeps the claim alive. I say so because there are instances where a matter dismissed can return to the cause list. For instance, a matter dismissed by virtue of Order 3 Rule 20(1) could be restored by virtue of Order 3 Rule 20(4) of the Court of Appeal Rules, 1990. Similarly, a trial Judge has the jurisdiction to strike out a matter with an order barring the party from the institution or commencement of the same action where, for instance, an enabling statute or law so specifically provides or where the matter is an abuse of the court or judicial process.

Mr. Egonu urged the court to dismiss the motion. He did not advance any argument to justify the submission. Dismissal of an action in a court, in the context of final disposal of the matter, is the most punitive measure against a plaintiff or applicant. This is because he is barred for all times and forever from instituting or commencing the action. This calls for an exercise of great caution on the part of a court to give such an order of dismissal in limine. While a court must dismiss a matter in clearly deserving instances, it should not do so where striking out is an option which will meet the justice of the case. In Nigeria Airways Limited v. Lapite (1990) 7 NWLR (Pt.163) 392, Wali, J.S.C. warned at page 405:

“The power of the court to dismiss a case in limine should be exercised with utmost circumspection and not lightly as a matter of course.”

It is not my understanding of the law that the moment a motion is fully heard and is not successful, the order must invariably be that of dismissal. It is not so. If the full hearing of the motion relates to the merits of the motion, then an order of dismissal shall lie. But where the motion is refused on technical grounds of procedure without hearing the merits, an order of striking out is appropriate. In my humble view, the latter is the situation here.

It is clear to me that the motion before this court is incompetent on the ground that it was brought out of time. Being incompetent, it is struck out and I do so by awarding N1,000.00 costs in favour of the plaintiff/respondent.

Other Citations: (1997)LCN/0274(CA)