Benneth N. Okeke & Ors V. Lawrence Chukwu (2002)

LawGlobal-Hub Lead Judgment Report

ABOYI JOHN IKONGBEH, J.C.A. 

On 12/09/97 the respondent herein, as plaintiff, applied to the Registrar of the Imo State High Court, sitting at Orlu for a writ of summons to issue against the appellants herein, as defendants. He did not accompany his application for the writ with a statement of claim but only with particulars of claim to be endorsed on the writ. By Order 25, rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988 –

“1. Unless the court gives leave to the contrary, or a statement of claim is endorsed on the writ, the plaintiff shall serve a statement of claim on the defendant and shall do so either when the writ, or notice of the writ, is served on the defendant or at any time after service of the writ or notice but before the expiration of 30 days after the defendant enters an appearance.
Provided that in land cases, the plaintiff shall serve his statement of claim on the defendant not later than 60 days after the defendant enters an appearance, unless the court gives leave to the contrary.” (Italics mine)

The respondent’s claim before the trial court did not involve land. It was for damages for libel. Therefore, the proviso to the rule just set out did not apply. The plaintiff/respondent, therefore, had only 30 days, after the defendants/appellants entered appearance, to file his statement of claim.

It is common ground, and the record shows, that the defendants/appellants entered appearance on 23/09/97. The plaintiff/respondent should, therefore, have filed the statement of claim on or before 23/10/97. He however did not file it until 28/10/97. He was, therefore, out of time by 5 days. It is common ground also that he did not seek and obtain leave of Court of before filing it.

This last fact prompted the defendants to cause a motion on notice to be filed, seeking orders of court –
“1. Striking out the plaintiff’s statement of claim…for want of compliance with the rules of court as the same was filed and served out of time without leave of court.
2. Striking out or dismissing Suit No. HOR/112/97 Lawrence Chukwu v. Benneth N. Okeke & 2 Ors for want of diligent prosecution.”

The record shows that the motion was fixed for hearing on 16/12/97. Mr. K. V. A. Okwandu, for the defendants/appellants, complained, and Mr. S. N. Chukwuma for the plaintiff/respondent, conceded before us that it was never in fact heard. Neither counsel was heard on it. After recording counsel appearances the learned trial judge just wrote and read a ruling, dismissing the motion and, suo motu, letting the statement of claim in. The record of proceedings at page 12 bears this out. Because of the relevance of the proceedings of that day to the arguments in parties’ briefs and the oral submissions of counsel before us, and because it is short, I think I should set it out in full:

“Parties are present in court
K. V. A. Okwandu for the defendants/applicants
S. N. Chukwuma for plaintiff/respondent.
Court: At a look of the decision of the Supreme Court in U.B.A. Ltd & 2 Ors v. Dike Nwosu (1978) 11 – 12 S.C. page 1 at 9 and 10 where the Court held that the statement of claim having been filed and served, the Court could suo motu without any application from the defendant (sic) accept the filing and service of the statement of claim out of time as regular in order to mitigate cost and waste of time, this court legitimizes the statement of defence (sic) filed by the respondents and served on the applicant.
The motion is dismissed.” (Italics mine for highlight).

Aggrieved by this ruling, the defendants/appellants have come before this court on two grounds of appeal, which, without their particulars, read:

“1. The learned trial judge erred in law and failed to exercise his discretion judicially by merely relying on the decision of U.B.A. Ltd. & 2 Ors v. Dike Nwora (1978) 11 – 12 S. C. 1 at 9 – 10 and suo motu regularized the respondent’s statement of claim already filed by the respondent and served out of time on the appellants without leave of court and without any application from the respondent or his counsel for extension of time.
2. The trial judge exercised his discretion wrongly by dismissing defendants/appellants’ application for striking out of plaintiffs/respondent’s statement of claim…filed… and served…out of time without leave of Court and dismissal of Suit No. HOR/112/97:..for want of diligent prosecution without hearing defendants/appellants or their counsel on 16th day of December 1997 when the said application came up for hearing in court thereby occasioned a miscarriage of justice.” (Italics mine for highlight)

Out of these two grounds, Mr. Okwandu, who prepared the appellants’ brief, formulated the following two issues for determination:
“ISSUE ONE
Whether the manner the trial judge exercised his discretion in the circumstances of the case in hand was based on correct principles.
GROUND 1
ISSUE TWO
Whether the refusal by the trial judge to hear the appellants before he exercised his discretion and dismissed appellants’ motion on notice on 16th December 1997 when it came up for hearing occasioned a miscarriage of justice.
GROUND 2”

On behalf of the respondent Mr. S. N. Chukwuma, who prepared his brief of argument formulated the following two:
“1. Whether the learned trial judge exercised his discretion judiciously by regularizing suo motu the statement of claim of the plaintiff/respondent, filed and served out of time?
2. Whether the said exercise of discretion suo motu by the learned trial judge occasioned a miscarriage of justice.”
It can be seen that the two sets of issues correspond.

Arguing the appeal on the first issue Mr. Okwandu first drew attention to the fact that even as at 16/12/97, when the defendants’ motion for striking out was fixed for hearing, the plaintiff had not applied for order of Court regularizing his position regarding the filing of his statement of claim. While conceding that it was within the discretion of the judge to regularise the plaintiff’s position, counsel submitted that such discretion could, in the circumstances of this case, only be exercised if and when the plaintiff applied for it. Counsel cited in support of this submission Orders 8, rule 2(1) and 22, rule 3(1) and (2) of the State’s High Court Rules and the Supreme Court decision in NIPOL Ltd. v. Bioku Investments (1992) 4 S.C.N.J. 58, @ 71, per Akpata, J.S.C. This case is also reported in (1992) 3 NWLR (Pt. 232) 727.