Igwe Uzur & Sons (Nig.) Ltd. V. Robinson Onwuzor & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The Respondent, as plaintiff instituted this suit at the Abakaliki High Court, Ebonyi State, sometime in 2001 against the 1st, 2nd and 3rd Defendants claiming to be a beneficiary of the estate of one late Beniah Onwuazor and also challenging the sale of a family property to the 1st and 2nd Defendants to the 3rd defendant. On 19/7/2001 the Registrar of Court issued the writ of summons, which was duly served on the respective defendants. Then plaintiff’s statement of claim was served on the defendants through the then 3rd defendant (J.A. Nduagubu now late) who was also their counsel. Later on 18/7/2002 this counsel withdrew his legal representation for the defendants whereupon the present counsel took over. When the said J. A. Nduagubu died his name was struck out of the process of court on 29/10/2002. On 29/11/2002, E. Uwakwe Esq. of counsel moved for the amendment of the statement of defence of the then remaining three defendants shown above. The trial court allowed the counsel for the plaintiff to file reply to the amended statement of defence.

On 28/2/2003, the learned counsel for the defendants by his own application urged the court to join the appellant as the 4th defendant. This application not opposed the court granted the application. His counsel was therefore served with an amended writ of summons on behalf of the 4th defendant. On 4/4/2003, the counsel filed a motion wherein he raised preliminary objection to the competence of the suit on the ground that the writ of summons is incompetent in that:-

“(a) The writ of summons served on the defendant/appellant does not bear the endorsement mandatorily prescribed by the High Court Civil Procedure Rules.

(b) There was no affidavit of verification of endorsement of the mandatory requirements of the High Court Civil Procedure Rules.”

After taking the arguments of both counsel for the defendant/applicant and the plaintiff/respondent, the learned trial Judge in his considered ruling overruled the objection and consequently dismissed the motion.

Dissatisfied with this ruling of the trial judge, the defendant has appealed to this Court upon seven grounds of appeal out of which he formulated four issues for determination as follows:

“3.1 Whether the learned trial Judge was right when he held that the absence of the endorsement on the writ of summons together with the affidavit of verification in this suit was the fault of the Registrar of court who issued the writ and which cannot be visited on the litigant.

3.2 Whether the learned trial Judge was justified in suo motu raising and relying on an issue during his ruling and which issue both counsel for the parties did not address him on but at the same time declining to rule on an issue duly submitted before him by counsel to the parties.

3.3 Whether the learned trial Judge having held that the appellant was not guilty of delay and did not take any step in the proceeding before raising his objection, exercised his discretion judicially and judiciously in relying on Order 2 Rule 1(1) of High Court Rules as enabling it to treat all cases of non compliance with the Rules of Court as an irregularity that cannot nullify any proceeding or document.

3.4 Whether the learned trial judge was right in treating the absence of endorsement on the writ and affidavit of verification specifically prescribed by the rules of court in probate actions as mere irregularity that cannot vitiate the validity of a writ of summons.”

The Plaintiff/Respondent in his brief for argument formulated the following three issues of determination of this appeal as follows:

“1. WHETHER THE TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE AMENDED WRIT OF SUMONS ISSUED BY THE REGISTRAR AND SERVED UPON THE APPELLANT WAS BEREFT OF FEATURE (S) NOT FUNDAMENTAL ENOUGH TO VITIATE OR INVALIDATE THE WRIT.

2. WHETHER THE AMENDED WRIT OF SUMMONS SERVED ON THE APPELLANT OCCASIONED ANY MISCARRIAGE OF JUSTICE TO THE APPELLANT.
3. WHETHER THE TRIAL JUDGE RAISED ANY ISSUE SUO MOTU AND IPSO FACTOR, DENIED THE APPELLANT OR ITS COUNSEL FAIR HEARING.”

Issues formulated by the learned counsel on behalf of the parties are similar. However, the issues set out by the respondent for determination are considered relevant and apt to determine this interlocutory appeal. The first and second issues will be taken together.