Prince Nwamunamma Ifeanyi Onyejekwe V. Nnanyelugo Fred Achebe Akunwata Fred Enweonwu & Ors (2008)

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VICTOR AIMEPOMO O. OMAGE, J.C.A.

In this appeal against the judgment of P.N.C. Umeadi J. delivered on 29/4/2005, the court ruled thus “though no notice of discontinuance was found in the court’s file, inspite of that the court ruled that he is of the view that the suit was actually discontinued, and he could not explain how the notice took wings and flew.”

The ruling followed the content by affidavit evidence before the court below in which the applicant/appellant deposed that he did not file a notice of discontinuance of Suit NO.0/287/2002. He said no notice of discontinuance was filed by him on behalf of his client and none was served on the defendant/respondent. That the only document he filed on 19/6/02 was a notice to produce in the said suit. The respondents, 1, 3 to 12 insist that the appellant filed a notice of discontinuance on 19/6/02 to discontinue the suit against them that at the Government House at Awka, the plaintiff’s counsel in the presence of the plaintiff so informed the gathering. The respondents averred that the said notice of discontinuance was attached to the originating summons filed by one Amalunweze Odukwe, which said notice was attached to the said originating summons, saying it is because the appellant’s claim was discontinued that Amalunweze filed his own claim against the same respondent, Obi of Onitsha and other.

It is noteworthy to observe that none of the Respondents in suit No. 0/287/2002 said he was served by the bailiff of the court, of the notice of discontinuance and received the alleged notice of discontinuance. The learned trial court did not in his judgment asked for proof of service.

In the court below the plaintiff had issued a writ of summons in which he claimed the following:

(a) A declaration that the plaintiff Prince Nwamunamma Charles Ifeanyi Onyejekwe is the rightful Obi elect of Onitsha.

(b) A declaration that the selection of the 1st defendant as Obi of Onitsha is null and void, and of no effect whatsoever being in breach of custom and tradition of Onitsha and against the principles of fairness and equity.

(c) A declaration that the 1st defendant has not performed his father’s funeral rites in accordance with Onitsha custom and tradition his father being an Ozo titled man. Ozo being a traditional socio religious institution and as such his father is still alive in accordance with custom which fact disqualifies him from been an obiship aspirant.

(d) A declaration that the descendants of Oreobi who constitute Ogbendida ward of Umuezearoli Village Onitsha are precluded from producing Obi of Onitsha by reason of atrocious act of one of them Enendu a long time ago with their active support and connivance which resulted in a ban placed on them by the entire Onitsha community after which an oath was taken to solemnize it.

(e) An order setting aside the purported coronation rites performed by the 1st defendant as being a breach of Onitsha Custom and tradition.

(f) An order setting aside the purported installation of the Obi of Onitsha.

(g) A declaration that the 2nd defendant having neither been accepted nor approved by the Umuezechima Dynasty is not eligible to be Obi of Onitsha.

(h) An order compelling the 3rd to 11th Defendants to present the plaintiff to the 12th defendant for the purpose of coronation rites at Udo shrine and compelling the 12th defendant to confer the Udo rites on the plaintiff.

(i) Perpetual injunction etc.

The response of the defendant was a motion worded thus:

“For an order pursuant to order 22 rule 8(1) (2) & (3) of High Court rules 1988 striking out the suit, with an order that it shall not thereafter be replaced in the cause list.” The motion is supported by an affidavit.

Further arguments in the alleged notice of discontinue followed by affidavit. The gravamen of these is that the then Governor of Anambra State had been invited; indeed pressurized by some prominent people of Onitsha to intervene and resolve the challenge to the obiship of Onitsha. Among the several write up on the issue are the annexures exhibited by the Respondents to this appeal. Upon the invitation of the Governor a meeting took place at the instance of the Governor, at the meeting one of parties objected to the intervention or resolution of the matter which as of 19/6/02 was pending in court, whereupon one of the parties produced a document said to be a notice of discontinuance issued by the Appellant The counsel to the Appellant whose signature was alleged to be appended to the alleged notice of discontinuance said he was amazed to see the document because he said he did not issue it and did not sign any such notice. He said all that he issued and signed for on 19/6/2002 was a notice to produce. The matter of the existence of the notice of discontinuance went to court on the affidavit and counter affidavit, and the court in its ruling wrote “I have perused the signature on the claim, the statement of claim and the motions on notice filed in this suit and I have compared the signature on exhibit 3, supra. I hold that it was the same person who signed the claim etc and the motion on notice who signed the notice of discontinuance as in exhibit 3. The person is Chudi Obieze of counsel.

It is a mystery that the notice of discontinuance as in exhibit 3 is not in the court’s file and no one could say how it came that there were two documents filed on the same date one is notice to produce and another a notice of discontinuance, while one survived the other vanished. I have no doubt in my mind that the notice of discontinuance took life and existed exhibit apparently grew wings and flew away. I hold the firm view upon the existence of exhibit 3 which is a certified true copy from the Registry of the court. I agree that the mere fact of identification attest to its genuineness. See Section 114 and 115 Evidence Act I agree also that once certified, it could be tendered and relied upon in court See Ogbonyiya v. Ohudi (1979) 6 S.C., but exhibit 3 came from somewhere. I have perused the 2nd further affidavit of Defendant/Applicant with document attached. There is no gainsaying that all documents attached to the 2nd further affidavit being exhibit attached to the affidavit are validly before the court and assume a life of its own as document properly before the court. I see exhibit G.U.O.7, G.U.O.9, GU.O.10a emanating from paragraph 39 of the affidavit attached to the motion exparte dated 29/11/2002 in suit No. O/191M/2002 are genuine etc. I hold that the effect of such filing of the notice of discontinuance when the suit has not been fixed for hearing is that the suit self terminates and the only thing the court will do is to strike out the suit. I hold that this motion on notice is real and succeeds. It is hereby ordered that suit No.0/287/2003 (sic) 2002 is struck out. The applicant was dissatisfied with the ruling of the court and has filed the appeal on which he formulated the following issues:

(1) Did the defendant/Respondent adduce any evidence showing that a notice of discontinuance was filed and tendered at a meeting, such as would warrant to find that such was the case?

(2) Is exhibit 3 attached to the reply to the counter affidavit certified true copy of the alleged notice of discontinuance in the true sense of the word certified true copy, so as to permit the learned trial judge to treat it as genuine and compare signatures on document in the court’s file?

(3) Was there evidence before the trial court showing that a notice of discontinuance and notice to produce were both filed on the same day and that a notice to produce survived whilst the notice of discontinuance vanishes so as to justify the finding of the trial judge?

In his brief filed on 1/11/07 the Respondent formulated the following issues for determination of the appeal thus:

“(1) whether the learned trial judge adopted a proper approach in the evaluation of the affidavit evidence of the parties and in placing reliance on exhibit 3.

(2) Whether the learned trial judge was correct which he compared the notice of discontinuance exhibit 3 to other processes filed by the appellant in the case to hold that the appellant duly discontinued the suit.”

I have read the submissions of both counsel and the reply brief of the appellant. The issues formulated by the respondent encapsulate the issues loosely formulated in the appellant’s brief. Besides the defect and denial of the appellant that he filed any notice of discontinuance, it is not in issue that the alleged notice of discontinuance was never found in the court’s file. At no time did the defendant now respondent aver that he was served the notice of discontinuance. The notice of discontinue on which the court ruled is exhibit 3, which is found to be annexed to the process filed by another litigant in another matter. The alleged comparison of signatures by the learned trial judge leaves a great deal to being satisfactory. It is certainly wrong.

A notice of discontinuance of a pending suit must necessarily be made on notice, Exhibit 3; annexure to another suit was made on notice. Service of process is a sine qua non to commencement of proceedings in a court of law, It is not merely a defect or an irregularity to effect service of process of court on the adversary party, it is a fundamental defect which cannot be rectified when hearing or proceeding has commenced, See Odutola v. Ermosho (1966), All NLR 250 at 252, and the failure of service denies jurisdiction to the court in the matter. The court must have jurisdiction before it can exercise its coercive power. See A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 252, It means therefore that all due processes have not been completed and the court is not properly constituted, See Gabriel Madukolu & ors. V. Johnson Nkemdilim (1962) All WLR (Pt.4) at 587/589. Since the subject matter is not initiated by due process of law. My lords, ordinarily once the court is dispossessed of jurisdiction, there is nothing further to be said, however the second ground on which the trial court erred is the trial by affidavit evidence, There is clearly a conflict in the affidavit’s evidence presented by the parties, It is settled practice, that a judge presiding over a matter in which there is conflicting averment in the affidavit, does not make himself a participant in the litigation. When therefore a judge finds such conflict it is proper indeed desirable to call viva voce evidence on which he may resolve the conflict. See Ahinduri v.Iwahun (1994) 3 NWLR (Pt.104); Falobi v. Falobi (1976) 91 SC. The only exercise for not calling viva voce evidence is if the issue is clearly on an issue of law which he can suo motu determine.

In the given case, (1) the process is not in the court’s file, and the applicant deposed that he never filed a notice a of discontinuance, what he filed is a notice of produce, Clearly this is contradictory to a notice of discontinue, a party who filed a notice to produce, implies a desire to proceed with the case, not discontinue it, (2) the Respondent was not served the process of discontinue which is the reason why the Respondent has to make copies exhibit 3 from annexure made to suit No O/191M/2002, and relied on same to submit to the court to discontinue suit No. 0/287/2002.

It is not difficult to conclude that the respondent wishes to realize the content of the motion which alleged the court to strike out the suit No. O/287/2002. If there is no more to it, why should a party alleged to have filed a notice of discontinuance which is not on the file of the court and not served on the adversary not say, he did not file it, and he cannot be held on to a process that is not before the court. It seems to me strange that the court having held that the notice of discontinue is not in the file of court and is not served on the respondent should found himself adjudicating on a matter not legally before him, and he relies for his decision on an annexure made in another suit, to which the appellant is not a party. I resolve issues 1 and 2 of the respondent against the appellant and rule in favour of the appellant.

I allow the appeal, and set aside the order of the court below. I direct that suit No. O/287/2002 should go before another judge for hearing and to conclusion.

I make an order for costs of N10, 000 in favour of the Appellant.

Other Citations: (2008)LCN/2856(CA)