Hon. Stephen Bassey & Ors V. Sat Guru Maharaji & Anor (2016)

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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

The present appeal is against the ruling of the High Court of Cross River State, delivered on April 24, 2014 in suit No. HC/490/1998. By the said ruling, the Court below struck out the Appellants’ (Defendants’) counter-claim on the ground that it was “incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof?.

BACKGROUND FACTS
By the Amended Statement of Claim thereof filed in the Court below on June 3, 2002, the Respondents (Plaintiff’s) claimed against the Appellants (Defendants) the following reliefs:
i. N500,000 for trespass,
ii. N50,000.00 for lease of the land from 1996 till Judgment or valuation.
iii. An Order of perpetual injunction restraining the defendants by themselves, Agents or any Privies from entering into the said place or Parcel of land perpetually.
See pages 1 – 4 of the Record.

Pleadings were filed and served by the respective parties. The case proceeded to trial. However, on April 10, 2013, the Court below ordered for a trial de novo, consequent upon the re-assignment of the

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case to another judge.

Prior to the commencement of hearing de novo, the Appellants raised a preliminary objection to the competence of the Amended Writ of Summons of May 18, 2011, which made the Appellants parties to the suit.
The objection in question was argued on February 11, 2014. The Court below delivered the ruling the following day, to the conclusive effect thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be valid and properly taken and so valid in law and would make the following orders to wit:
ORDERS
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioners.
2. I make no order as to costs.
See pages 86 – 92 of the record.

The two sets of Defendants then asked the Court to set down their respective counter-claims for hearing. Where upon, the Court below ordered the parties to address it on the competence of the counter-claims, in view of the ruling striking out the

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writ of summons.

On April 29, 2014, the Court below delivered the vexed ruling, to conclusive effect, thus:
In the circumstance, I am unable to agree with the defendants in this case that their counter-claims can even with the writ of summons of the claimants having been declared incompetent. Therefore and in the circumstance, I will make the following declarations in this case on the point, to wit:
1. I hereby declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law the writ of summons having been declared incompetent.
2. The same is accordingly hereby struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs.
See pages 95 – 101 of the Record.

?The Appellants’ notice of appeal was dated December 9, 2014, but filed on December 23, 2014. The record of appeal was transmitted on 04/2/2015, but deemed properly transmitted on 20/4/2016. The Appellants’ brief was filed on 12/02/2015, but deemed properly filed on 21/4/2016. It spans a total of 8 pages. At page 2 of the said brief, a

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sole issue is canvassed, viz:
WHETHER THE TRIAL COURT WAS IN THE CIRCUMSTANCES HEREIN JUSTIFIED TO STRIKE OUT THE COUNTER CLAIMS OF THE DEFENDANTS/APPELLANTS AND THEREBY DENY THEM OF HEARING ON MERIT.