Obianwuna Ogbuanyinya & Ors V. Obi Okudo & Ors. (1990)

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BELGORE, J.S.C. 

I dismissed this appeal on 30th April, 1990 and reserved the reasons for the judgment to today. I now give the reasons.

There was a suit dated 28th day of April, 1958 filed at Onitsha in the High Court of the former Eastern Region of Nigeria. It was given a writ of summons number 0/71/58. The action was in a representative capacity with both parties representing their respective communities of Ogidi and Egbunike.

The sum of 33,36d. was paid with the application for the writ of summons and a revenue collector’s receipt was issued to the plaintiff. On 6th October, 1958, Obianwuna Ogbuanyinya (deceased, who is on the papers before us the 1st appellant) appeared in obedience, no doubt, to a writ of summons served on him and asked for pleadings which were ordered.

On 8th February, 1965, on application by the plaintiffs, 2nd and 3rd plaintiffs were added to the suit. On 9th February, 1960, barely two years after the suit was filed, the 2nd, 3rd, 4th, 5th and 6th defendants were joined on the application of the defendants.

The ease was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka Agu, J. (as he then was) delivered judgment which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal. The Supreme Court set aside the judgment and remitted it for trial de novo (see Ogbuanyinya & 5 Ors. v. Obi Okuda (1979) 69 S.C. 32).

When the matter came up at Onitsha for trial de novo, G.R.I. Egonu, S.A.N., for the defendants raised a preliminary objection as follows:

“TAKE NOTICE that the defendants intend, at the hearing of this action, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-

That the above action is incompetent and it is not properly made before the court.

TAKE NOTICE that the grounds of the said objection are as follows:

(1) That the action was not initiated or constituted by due process of law.

(2) That no writ of summons signed by a Judge of the then High Court of Eastern Nigeria or any other valid writ of summons was issued to commence the above action or alternatively, there is no evidence of such a writ of summons.

(3) That the parties in the action were altered and there is no evidence of any order of the court authorising the alterations.

Dated this 27th day of January, 1981.”

(SGD) G. R. I. EGONU, S.A.N.

COUNSEL AND SOLICITOR

FOR THE DEFENDANTS.

The defendant (now appellants) now appear to raise issue of competency with regard to whether a writ actually subsists or not. Order 2 rule 1, High Court Civil Procedure Rules of Eastern Region of Nigeria 1955 was being relied upon. It reads:

“Every suit shall be commenced by a writ of summons signed by a Judge, magistrate or other officer empowered to sign summons”

The submission by learned counsel for the appellant from the High Court through Court of Appeal to this court has been adumbrated on the proposition that there was no writ of summons in this suit and as such all proceedings in all the courts up to the Supreme Court judgment in suit SC.13/1979 were a nullity. This to my mind is a very novel proposition. Clearly the respondents as plaintiff applied for issuance of a writ of summons and appropriate fee was paid for which a revenue collector’s receipt was issued. Thereafter parties appeared and pleadings were ordered and finally filed. From 1958 to 1976 the status of the High Court of Eastern Region had changed remarkably due to political and administrative situations. Eastern Nigeria was occupied by a rebellious regime for almost three years, not to talk of independence in 1960 and republican constitution of Eastern Nigeria 1963. The Military Regime came in 1966 and remained up to 1979. During the same periods, Eastern Nigeria had ceased to exist and new states were created. Onitsha is now part of Anambra State. Several changes thus took place but the most trying period was the civil war years when several documents got destroyed and/or were missing. The writ of summons could not be found. But missing writ of summons does not manifest that it was not issued.

All a plaintiff had to do was to apply for a writ of summons in accordance with rule 2 order 1 and pay the prescribed fee. This, the respondents did. Unless a writ of summons was issued the other side could not appear for it is the writ that invites the defendant to court. Surely parties who appeared in court and asked for pleadings and finally filed one could not be said to have received no writ of summons. But for the judgment of Supreme Court which decided the all important question of jurisdiction of the trial Judge there was no challenge to the validity of the trial.

Now what the appellant resorted to in the trial de novo which has unfortunately protracted the hearing of substantive issue is nothing but delay tactic. Would the court of trial declare a nullity what this court tried and remitted for trial de novo It seems this precisely is what the appellants indirectly want to achieve. The appearance of the parties in the trial court, the filing of their pleadings and offering of testimonies manifest regularity as I cannot imagine a situation where a party not invited via a writ of summons would appear in court to file pleadings or apply to be joined. Evidence Act says:

149(1) “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”

In the face of substantial compliance with steps normally taken if a suit exists, as the filing of pleadings, joinder of parties etc, it is presumed a writ of summons signed by a Judge in compliance with order 2 rule 1 exists. It is however to be pointed out that the duty to issue a write of summons is not that of the plaintiff. The plaintiff, having applied for a writ of summons is not that of the plaintiff. The plaintiff, having applied for a writ of summons on payment of appropriate fees leaves the rest to the court, his appearance in court and the presence of defendants suffice to arrive at the presumption envisage in s.149(1) Evidence Act (supra). The burden of proof of a particular fact, in this case, that there was no writ issued is on the person that makes the allegation section 138 Evidence Act.

Againt this allegation of non-issuance of writ of summons are acts of the parties appearance in court, filing of pleadings, moving the court to join additional defendants. These acts are consistent with those of an existing suit and notice of the suit is the service on the defendants of writ of summons.

The appellants despite the long journey on this trivial matter, have not explained how they decided to go to court and participate in the suit without being served any writ of summons. The burden is on them to explain how they came to court without service of a writ on them.

It is true, as submitted by counsel for the appellants, that competency is fundamental to the trial of a case by court, but he has not up to now explained how his clients appeared other than by way of being served with a writ of summons. The burden is on his clients. The cases cited, to wit. Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587, 589, 595; Ajao v. Sonola & Anor. (1973) 5 S.C. 119,120,121; Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & Anor. (1986) 6 S.C. 35, 50,51,52; (1986) 3 N.W.L. R. (Pt.30) 617 and Management Enterprises Ltd. and Anor. v. Jonathan Otusanya (1987) 2 N.W.L.R. (Pt.55) 179, at 188 are of great authorities on competency. They, however, have no bearing on this case in hand. It would appear the device behind the preliminary objection subject of appeal now before this court is an indirect way of asking the High Court at Onitsha declare invalid the decision of this court in suit no. SC.13/1979 because the decision was based on a suit that never existed. This appeal has not served well the cause of justice. If it is meant to help develop the law so as to fish out the effect of the missing writ of summons, it could unwittingly defeat justice by sheer length of the delay in hearing the substantive issue.

For the above reasons, I dismissed the appeal on 30th day of April, 1990 with N500.00 costs to the respondents.

SC.111/1988