Uche Nwokedi & Anor. V. Mr. Fred Egbe (2004)

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SULEIMAN  GALADIMA, J.C.A.

 is an appeal by the defendants in the court below, against the ruling of the High Court of Lagos State, delivered by the Honourable Justice Ade Alabi on 20/6/95. The respondent as plaintiff had instituted an action against the appellants as defendants at the High Court claiming jointly and severely the sum of N100,000.00 (One hundred million Naira) as damages for injurious falsehood.
The injurious falsehood was contained in a letter written by the appellants to solicitors in England (Messrs Sears, Tooth and Co.) which was tendered in evidence in an action No. 6163/91 “Caroline Egbe v. Fred Egbe”. Consequent thereto, the sum of (#1,690,000) was awarded against the respondent.

The respondent aggrieved by this action of the appellant instituted action against the said appellant at the lower court claiming damages in the sum of N100,000,000.

In the course of the proceedings at the lower court, the appellant filed a motion dated 1/11/94, praying the lower court to dismiss the action with costs on the ground that the particulars of claim disclosed no reasonable cause of action; that the plaintiffs action was frivolous, vexatious and otherwise an abuse of the court process. The plaintiff filed counter-affidavit to the said motion. In a ruling of 20/6/95, the lower court held that plaintiff’s action was competent, sustainable, in law and disclosed reasonable cause of action.

Being dissatisfied with the ruling, appellants have appealed to this court and filed six grounds notice of appeal from which they distilled two issues for determination, set down below as follows:
“1. Does Order 22 rules 2 and/or 4 of the Civil Procedure Rules of Lagos, 1972, limit the court to examine the writ of summons and statement of claim only, and no other pleadings or processes filed in support or opposition of the application?
2. In an application under Order 22 rule 4 brought by a defendant, can the court properly and effectively consider the application without reviewing the facts averred to and relied upon by the parties, and which facts gave rise to the application?

On his part, the respondent adopts the two issues formulated by the appellants.

On 15/1/2004, this appeal was heard. Learned Counsel for the appellants, Uche Nwokedi, Esq. referred us to their brief of argument deemed filed 7/10/2002 and the reply brief filed on 9/12/2002. He urged us to allow the appeal. Having adopted the brief of argument filed on behalf of the respondent learned Counsel B.A. Onyekwere, (Mrs.) urged us to dismiss the appeal and remit the case to the lower court for hearing on the merit.

In considering this appeal, I will take the two issues formulated for determination by the parties serially.

In the first issue the question is whether Order 22 rules 2 and/ or 4 of the High Court of Lagos State (Civil Procedure) Rules of Lagos State 61, Laws of Lagos State, 1972, limits the court to examine the writ of summons and statement of claim only and no other pleadings or processes filed in support or in opposition in an application for striking out statement of claim and dismissing an action on the ground of not disclosing reasonable cause of action. Order 22 is in pari material with the new Order 23 of the High Court of Lagos State (Civil Procedure) law Cap. 61, Laws of Lagos State, 1994. It provides as follows:

Proceedings in Lieu of Demurrer
1. Demurrer abolished
Points of law may be raised by pleadings.

2. Any party shall be entitled to raise by his pleading any point of law and, unless the court or a Judge in chambers otherwise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.

Dismissal of action.

3. If in the opinion of the court or a Judge in chambers, 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 Judges may thereupon dismiss the claim, or reply.

Therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just.

Striking out pleading where no cause of action disclosed.

4. The court or a Judge in chambers may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or Judge in chambers may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

5. No action or proceeding shall be open to objection, on the ground that a merely declaratory Judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.

In a demurrer application, where applicable, under the relevant court rules, the only relevant and competent document that the trial court is obliged to look at is the plaintiff’s statement of claim. Considering the provisions of rules 1 and 2 or Order 27 of the Federal High Court (Civil Procedure) Rules, 1976 Cap. 134 Laws of the Federation 1990, relating to demurrer procedure, Achike, J.S.C. has this to say in Boothia Maritime Inc. v. Fareast Mercantile Co Ltd. (2001) 9 NWLR (Pt.719) 572; (2001) MJS C32 at 43.

“For the proper understanding of the procedure law contemplated by application relating to demurrer, it must be borne in mind that by rules 1 and 2 of Order 27 as amplified by a maze of judicial authorities relating to these two rules, that is now trite, that in demurrer proceedings that only relevant and competent document that the trial court is obliged to look at is plaintiffs statement of claim. This is of necessity, must be so because the combined effect of rules 1 and 2, forbid the defendant to answer upon question of fact or embark on discussion of question of fact because the defendant will be deemed to have admitted the truth of the plaintiff’s allegations as set out in the statement of claim. Such a defendant is precluded from filing an affidavit because the content of an affidavit, necessarily, by the rules governing such a document, must contain statements of facts and circumstances to which the defendant deposes: See S. 86 of the Evidence Act.”

Demurrer proceedings having been abolished in the light of provisions of Order 22 set out above, an application under this rule cannot be considered as a demurrer.

The learned trial Judge in considering the application of the respondent in the instant case, treated it as if it was a demurrer when he ruled that at pp. 46 – 47 of the records as follows:
“In application for striking out statement of claim and/or dismissing an action on the ground of not disclosing reasonable cause of action, the court is limited to examine just the writ of summons and the statement of claim and no other document for that purpose no other outside document is referred to. If the defendant has filed any process at all, no reference is made to it for any purpose. The defendant is deemed to leave admitted all the averments in the statement of claim as true”.
It is in this regard, the learned trial Judge refused to examine all the processes necessary for the proper consideration of and adjudication on the issues raised by the appellants. The learned author of the “Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria ”

1st ed., T. Akinola Aguda, in reviewing this procedure stated at paragraph 31.08 p. 392 in reference the provisions of Order 22 of the High Court (Civil Procedure) Rules of Lagos State, that:
“As can be seen, the application under above provisions can only be usefully made, after pleadings have been completed, or at least after the statement of defence has been filed since conceivably it is only by a statement of defence that a point of law as anticipated by the rules can be raised.”

Fidelis Nwadialo, learned Author or of Civil Procedure in Nigeria at p.344 of his book reiterated this point with reference to order 22, when he said.
“Its application envisages that the statement of claim and the statement of defence must have been filed. It is in any of these pleadings that a party may raise the point of law.” (Italics ‘mine for emphasis).

In the case of Lasisi Fadare v. A.-G., of Oyo State (1982) 4 SC. 1, in considering the scope and purport of Order 22 of the Civil Procedure Rules of Western Nigeria, which is in pari materia with order 22 of the High Court of Lagos State (Civil Procedure) 1972 rules (supra), Nnamani JSC, stated, inter alia, that the Order is one under which “a preliminary point of law would be raised after both the statement of claim and defence have been filed”. See also, the cases of Kingsley Madu v. Victoria Ononuju (1986) 3 NWLR (Pt. 26) 23 at 24 and Provisional Council, O.S.U v. Makinde (1991) 2 NWLR (Pt. 175) 613, where Lasisi Fadare’s case was followed and applied: Furthermore, in an application under Order 22, the court will not act unless the defendant is able to show that on the facts pleaded by the plaintiff and admitted by the defendant that the claim cannot succeed. It then follows therefore that where the court refuses to look at the statement of defence filed by the defendant, then the defendant is completely precluded from showing that on the facts pleaded by the plaintiff and admitted by the defendant the claim cannot succeed.

If so, I would say that the learned trial Judge, with due respect, grievously erred when he refused to look at the statement of defence and thereby prejudiced the application of the defendant. See Foko v. Foko (1968) NMLR 441. In essence an application of this nature is clearly designed to assist the court in disposing of cases, so as to avoid the taking of unnecessary lengthy evidence of the parties to a suit, where it appeared that the whole suit would be decided upon the pleadings. See John Mills v. Renner (1940) 6 WACA 144.

A close study of the ruling of the learned trial Judge will reveal that in dealing with the issues raised the court did not consider the facts as having been admitted. They are treated as allegations which have to be proved. This is clear at p.47 of the record where the learned trial Judge said thus:
“That to my mind is an allegation whether the plaintiff will be able to prove and establish the allegation, no one knows and no one can say at this stage… ”

The learned trial Judge went further to say as follows:
“In this case, the matter has not reached the stage where we can take a look at the statement of defence of the defendants. Even if this court does so and finds that the defence of privilege has been pleaded, that does not mean that the court can take the defence of privilege as proved and established.”

I agree with the learned Counsel for the appellants that the ruling and the ratio of learned trial Judge are founded on wrong principles. It would appeal, that the learned trial Judge failed to consider the very same principles that ought to have guided him in the proper determination of the appellant’s application. As earlier observed the appellants’ claimed that the subject matter of their action was a letter presented to the High Court of England in a matter before it “petition no. 6163/91 – Caroline Egbe v. Fred Egbe”. If this averment as well as those in paragraphs 5, 10 and 11 of the statement of claim are taken as admitted then the learned trial Judge would have found that the appellant’s claim is premised on matters that arose directly out of judicial proceedings, which is trite law, an absolutely privilege occasion, and on that ground the court would have upheld the appellant’s application and dismissed the action.

The second issue poses the question whether in an application under Order 22 rule 4 brought by a defendant the court can properly and effectively consider the application without reviewing the facts averred to and relied upon by the parties and which facts gave rise to the application. It suffices to say that issue No.2 of the appellant’s brief flows and is interwoven with issue No. 1. The appellants are seeking this court to uphold its view that an application brought pursuant to Order 22 rules 2 and 4 of the High Court of Lagos State Civil Procedure rules, 1972, for the striking out of pleadings and dismissal of the suit for want of reasonable cause of action, the courts will be constrained to examine and rely on the affidavit evidence in support of the application and any statement of defence filed before any determination of the said fact.

It is submitted by the learned Counsel for the respondent that in an application to determine the suit in limine, the court must have recourse only to the statement of claim filed to ascertain if a reasonable cause of actions is therein contained fit for determination by a court. Reliance was placed on Shell BP Petroleum Dev. Co. & Ors v. Onasanya (1976) 6 SC 89 at 14 and the English authority of Wenlock v. Moloney (1965) 2 All ER 871.

The argument here is that the procedure caters for striking off or dismissal of pleadings for want of reasonable cause of action or that the action is frivolous. Wenlock’s case (supra) cited and relied upon by the Respondent deals completely with different rule of procedure. It is not relevant to the principles and procedure applicable to the question of proceedings in lieu of demurrer. Again, in Drummond Jackson v. British Medical Association (1970) 1 All ER 1094 CA; it was held that an application to strike out an action had to be on the consideration of pleadings. It did not state that the court should not look at the statement of defence, nor did it state that in consideration of the application the court is limited to the statement of claim only.

It should also be noted that the facts of this case is not in any way similar to that of the present appeal in that the matter therein, did not arise out of judicial proceedings, nor was the question of judicial privilege ever considered. All the cases cited by the respondent do not have the same set of circumstances and facts nor do they even consider the same rules or principles of procedure. Furthermore, none of the cases considered the position of the law where the defence of absolute privilege is raised based on the averments in the statement of claim.

By not considering the statement of defence filed and the counter affidavits of the respondent, the learned trial Judge had shut out and prejudiced the application before him. It is the duty of a court to consider, whether of first instance or appellate court all the issues that have been joined by the parties and raised before it for determination.In Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131, the Supreme Court has held that it is the duty of a court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the court failed to do so without a valid reason, then it has certainly failed in its duty. For in our judicial system, it is a fundamental principle of administration of justice that every court has a duty to hear, determine and resolve such questions.

It is for reasons stated above that I will allow the appeal and set aside the ruling of the lower court. The case is hereby remitted to the said lower court for the appellants’ motion, dated 1/11/94 to be heard by a different Judge. Costs of this appeal are assessed at N5,000 against the respondent but in favour of the appellants.

Other Citations: (2004)LCN/1549(CA)