Mrs. Rose Nkem Amobi & Ors V. Dr Charles Chiedu Anazodo (2016)
LawGlobal-Hub Lead Judgment Report
RITA NOSAKHARE PEMU, J.C.A.
This is an Appeal against the Judgment of Hon. Justice J. I. Nweze of the High Court of Justice of Anambra State, sitting at Otuocha, delivered on the 14th of March 2013 in Suit No. OT/81/2010.
FACTS LEADING TO THE APPEAL
The Suit, the subject matter of this Appeal was instituted vide Writ of Summons dated 22nd of December 2010. – Pages 1 – 2 of the Record of Appeal.
In Paragraph 16 of the Statement of claim filed on the 22nd of December 2010, the Plaintiff (Respondent in this present Appeal) claims against the defendants jointly and severally the following:
(a) “A declaration that the plaintiff is entitled to a certificate of occupancy over and concerning the said piece or plot of land in dispute otherwise known and called Plot 163 Enuovuve Layout Phase 11 Nkwelle Ezunaka and were particularly shown and delineated in Survey Plan No. CD/AN/D.36/2010 wherein it is shown verged pink.
(b) N3,000,000.00 damages for trespass and malicious damage.
(c) Perpetual injunction restraining the defendants, servants, agents, privies, workmen from further
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entering into the aforesaid piece or parcel of land and or from in any manner whatsoever interfering with the Plaintiffs right over same”.
– Page 7 of the Record of Appeal.
The land, the subject matter of the suit at the lower Court is all that piece or parcel of land situate and known as Plot 163 Enuovuve Layout, Phase 11 Nkwelle Ezunaka in Anambra State.
The Respondent (as plaintiff at the lower Court) are claiming that the land in dispute was not allocated to Chief Ogbuefi John E. Anyakora, nor any individual member of the Akupukwu family, as it had been reserved by the Akupukwu family, together with Plot 152 for the purpose of building their family hall. But the Akupukwu family sold the land in dispute to the Appellants, through their representatives and used the money to build their family hall on Plot No. 152.
There is pleaded and relied on by the Appellants, a Memorandum of Customary Grant, executed between the acknowledged representatives of Akupukwu family and the 2nd and 3rd Appellants, which evidences the customary land transaction in respect of the land in dispute.
There is Certificate of Land Ownership issued
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to the 2nd and 3rd Appellants by the Akupukwu family in respect of the land in dispute.
The Appellants claim that they had been in exclusive possession and occupation of the land in dispute since 2006. The Respondent has never been in possession of the land in dispute. The Respondent had approached the Appellants requesting to buy the land in dispute from them. The Appellants refused to sell to them, and the Respondent had resorted to writing petitions to the police, claiming ownership of the land.
The Respondent has it, with the partition of the Akupukwu family land amongst the members of the family, Plots 153, 154, 161, 162 and 163 were allocated/leased to one Chief Ogbuefi John E. Anyakoro. He claims that he bought the land in dispute from the said Chief Ogbuefi John E. Anyakoro.
At the hearing of the case, the Plaintiff called five witnesses and tendered Exhibits P1 ? P11 while the Defendants called two witnesses and tendered Exhibits D1-D6.
?At the close of hearing, the learned trial Judge found for the Respondent, and was adjudged entitled to the right of occupancy over that piece or parcel of land, the subject matter
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of this Appeal. He was also awarded the sum of N90,000.00 as nominal damages for trespass, against the defendants (Appellants in the present appeal) – Pages 202-208 of the Record of Appeal.
The Appellants are dissatisfied with the decision of the lower Court.
Desirous of appealing it, they, pursuant to the Practice Direction of this Honourable Court, filed a Notice and Grounds of Appeal on the 25th of March 2013 encapsulating five (5) Grounds of Appeal – (Pages 209-212 of the Record of Appeal).
The Appellants filed their brief of Argument on the 3rd of February 2015, but same was deemed filed on the 11th of February, 2015. It is settled by E. S. Nri-Ezedi, Esq.
The Respondents filed his Brief of Argument on the 4th of March 2015. It is settled by D. M. N. Nweke, Esq. The Appellants filed their Reply brief of argument on the 12th of March 2015.
Pertinent to note that the Appellants filed an amended Notice of Appeal on the 10th of October 2014, which was deemed filed on the 18th of November 2014. It has ten (10) Grounds of Appeal.
The Appellants distilled and articulated six (6) issues for determination from the
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Grounds of Appeal. They are ?
1. “Whether the writ of summons by which this suit was initiated is incompetent and fundamentally defective and thereby robbed the trial Court of the jurisdiction to entertain this suit.
Ground 6
2. Whether the Deed of Transfer “Exhibit P4” relied upon by the Respondent as his root of title is void and a nullity in law as it was not prepared by a legal Practitioner but rather by a law firm “Ikpeazu Chambers” which is not a legal Practitioner under the Legal Practitioners Act.
Ground 7
3. Whether the Deed of Transfer “Exhibit P4” which was not registered in accordance with the provisions of Section 22 of the Land Instruments (Preparation and Registration) Law Cap 75 Revised Laws of Anambra State 1991 and also not pleaded as mere receipt or evidence of payment of purchase price, is admissible in law and ought to have been ascribed any evidential value.
Ground 8
4. Whether the learned trial judge was right and/or justified in failing to consider and determine issue 3 formulated by the Appellants’ counsel to the effect that the Deed of Transfer “Exhibit P4” was not executed or signed by the
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alleged signatory – Dr. Onyechi Ikpeazu SAN.
Ground 9
5. Whether the learned trial judge was right and/or justified in failing to evaluate Exhibits “D” “D2” and “D4” for the purpose for which they were tendered by the Appellants.
Grounds 10 and 1
6. Whether based on the totality of evidence adduced in this case, the judgment delivered by the trial Court is sustainable.
The Respondent, on their part in Paragraph 3.00 of their brief of Argument adopts the Appellants’ issues for determination as stated in Paragraph 3, – Pages 2-3 of the Appellants brief.
On the 21st of April 2016, the parties adopted their respective briefs of Argument.
Issue No. 1 in the Appellants issues for determination comes to focus. It has this to say –
“WHETHER THE WRIT OF SUMMONS BY WHICH THIS SUIT WAS INITIATED IS INCOMPETENT AND FUNDAMENTALLY DEFECTIVE AND THEREBY ROBBED THE TRIAL COURT OF THE JURISDICTION TO ENTERTAIN THE SUIT”.
I deem it pertinent to consider this issue first and foremost to see how viable it is. This is because the Writ of Summons in any Suit is the foundation and lifewire of it. If it is fundamentally
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defective, then it knocks the bottom of the entire process and proceedings.
Where a suit is not initiated by due process of law, the suit is incompetent; and where that suit was heard by a Court, the proceedings before the Court are a nullity ? W.A.E.C. v. AKINWUMMI (2008) 9 NWLR (Pt. 1091) page 151 @ 167-169; D.E.R.N.R. LTD v. TRANS INTERNATIONAL BANK LTD (2008) 18 NWLR (Pt. 1119) @ 388 @ 417 PARAGRAPHS C-G.
Where a Statute or a rule of practice or both for that matter, provides a method for commencing a proceeding in respect of a particular cause of action or matter, it must comply with it or the action instituted becomes irregular and incompetent. OGUDU v. STATE (1994) 9 NWLR (Pt. 586) 1 @ 48.
A painstaking perusal of the Writ of Summons at page 1 of the Record of Appeal shows the following –
(a) “It was not signed by the Plaintiff at the lower Court (Respondent in the present appeal).
(b) It was not signed by the Plaintiff’s Counsel.
(c) There was no address for service thereon.
(d) The Writ of Summons, indeed the Entire Record of Appeal was not certified.
(e) There is no amended Writ of summons
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filed.”
The Writ of summons is the originating process of the Suit in Suit No OT/81/2010. The Writ of summons ex-facie is bereft of who prepared same – the Respondent (Plaintiff at the lower Court) or his Counsel. Again the Plaintiff’s address and that of his Counsel are not indicated thereon.
The suit, the subject matter of this Appeal, was instituted at the Anambra State High Court. Order 6 Rule 1 and 2 (3) of the High Court of Anambra State (Civil Procedure) Rule 2006 provides that –
Order 6 Rule 1
“Originating process shall be prepared by a Plaintiff or his Legal Practitioner, and shall be clearly printed on Opaque A4 paper of good quality.
Order 6 Rule 2(3)
“Each copy shall be signed by the Legal Practitioner or by a Plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
Indeed Order 4 Rule 1 and Rule 6 (1) and (2) of the High Court of Anambra State (Civil Procedure) Rules 2006 provides thus –
Order 4 Rule 1
“Every originating process shall contain the claim, the relief or remedy sought and the full names and
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address of the Plaintiff”.
Order 4 Rule 6(1)
A plaintiff suing in person shall state on the originating process his residential or business address as his address for service. If he lives and carries on business outside the judicial division, he shall state an address within the Judicial Division as his address for service.
(2) Where a plaintiff sues through a Legal Practitioner the Legal Practitioner shall state on the originating process his chambers’ address as the address for service. If the Legal Practitioner is based outside the Judicial Division he shall state a chambers address within the Judicial Division as his address for service.
There is nothing to show that the Writ of Summons was prepared by the Respondent or his Legal Practitioner. The Writ of Summons remains therefore an unsigned one – OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521; NEW NIGERIAN BANK PLC v. DENCLAG LTD (2005) 4 NWLR (Pt. 916) 549.
In Order 4 Rule 8 of the Anambra State High Court (Civil Procedure) Rules state inter alia that –
“If the originating process does not state an address for service, it shall not be
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accepted…”
Curiously the Registrar accepted and signed same.
What sanction does the Rules of Court provide for failure to comply with the above provisions? It is stated in the provisions of Order 5 Rule 1 (1) of the High Court of Anambra State (Civil Procedure) Rules 2006.
It says –
“Where in beginning or purporting to begin any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements of these Rules, the failure shall nullify the proceedings”.
The effect of the non-compliance referred to in Order 5 Rule 1 (1) of the High Court of Anambra State (Civil Procedure) Rules is that it goes to the very root of the originating process thereby making it void ab initio. Save where the Writ is amended, it remains void ab initio. But there is nothing to show that there was an amended Writ in the record.
Having held that the Writ of Summons in Suit No OT/81/2010 is incompetent, and grossly so, every proceeding predicated on it at the lower Court is rendered a nullity and I so hold. The abysmal failure of the Plaintiffs to comply with the Rules of Court, and indeed
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the law render the Writ of Summons void ab initio.
This issue is resolved in favour of the Appellants and against the Respondent.
A consideration of the other issues for determination in this Appeal would amount to embarking on an academic exercise. The proceedings at the lower Court and the Judgment delivered on the 14th of March 2013 are all rendered a nullity.
The Appeal succeeds and the judgment of Hon. Justice J. I. Nweze delivered on the 14th of March 2013, sitting at Otuocha in Suit No. OT/81/2010 is hereby set aside, with N50,000 costs in favour of the Appellants. Suit No OT/81/2010 is hereby struck out.
Other Citations: (2016)LCN/8722(CA)
