Chief Berthrand E. Nnonye V. D. N. Anyichie & Ors (1999)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A. 

The plaintiff/appellant filed an action at the High Court, Awka for damages and return of money collected from the plaintiff. The respondent filed a motion praying the court for “an order striking out the suit for not being properly filed before the court.” The motion was argued and upheld by the learned trial Judge. He said:

“The affidavit in support of this motion has merit on the issue prayed for in the motion paper. There is no need for me in this application to go into the non-observance of sec. 87 of the Evidence Law because this application succeeds on the issue of jurisdiction. The case of the plaintiff is therefore struck out.”

Dissatisfied, the plaintiff filed an appeal. Briefs were filed and exchanged. Appellant filed six issues while respondents filed only one issue for determination. I do not intend to reproduce the issues here.

Taking Issues Nos. 1 and 2 together, learned counsel for the appellant, Dr. Felix Obi argued that where there is no patent defect on the face of a writ which indicated incompetence in Law, and particularly where pleadings have been filed and no facts were pleaded suggesting a challenge to jurisdiction or competence, a trial Judge should not dismiss a suit without hearing the evidence adduced before him by the parties.

He contended that a party who relies on statutory provision for his case should plead such statute, otherwise he cannot found his defence at the trial on the provision of the statute. Contending further that parties are bound by their pleadings, counsel cited Chief Ikeanyi v. A.C.B. Ltd. (1997) 2 SCNJ 93 at 94 – 95; (1997) 2 NWLR (Pt. 489) 509.

On Issues Nos. 2, 3, 4 and 5, which counsel argued together, it was submitted that the failure of the trial Judge to consider evidence and the pleadings before him judicially occasioned a miscarriage of justice. The trial Judge has a legal duty to consider judicially, the materials before him, in order to arrive at the conclusion as to whether or not he has jurisdiction to hear the suit. Especially as there was nothing patent on the face of the writ which would indicate that he lacked jurisdiction. learned counsel argued.

In a situation where affidavit evidence of the parties was in conflict, the Judge ought to call oral evidence to resolve the conflict before arriving at his decision, counsel further argued. His failure to do so in the case, occasioned a miscarriage of justice, he submitted. Counsel cited Onuoha v. The State (1988) 7 SCNJ (Pt. 1) 20: (1988) 3 NWLR (Pt. 83) 460: Egbunike v. ACB Ltd. (1995) 2 SCNJ 58 al 62 and 78; (1995) 2 NWLR (Pt. 375) 34; Adeyemo v, Arokopo (1988) 6 SCNJ 1 at 6: (1988) 2 NWLR (Pt.79) 703 and Adkins Scientific Ltd. v. Adadetoyinbo (1995) 7 SCNJ 233 at 234 and 235: (1995) 7 NWLR (Pt. 409) 526.

On Issue No.6, learned counsel submitted that the learned trial Judge by clinging strictly to the exact word used in the Law failed to consider the meaning of the expression “demand” and the relevance and intendment of the act in respect of the provisions. The Judge therefore failed to understand and apply the meaning of the words, “change to produce” authority as being synonymous and with the same effect as “demand” for authority, counsel submitted.

Learned counsel also submitted that the Judge stuck to extreme technicality in his consideration of the motion, and was therefore wrong in Law and occasioned a miscarriage of justice. It is the Law and practice by courts of record that they should consider the substance of any case before it and not merely adhere to extreme technicality of interpretation and proceedings, he contended. He cited Dr. Okonjo v. Dr. Odje (1985) 10 SC 267, Counsel urged the court to allow the appeal, Learned counsel for the respondents, Mr. C. O. Anah, submitted that failure lo comply with Section 41(1) of the Sheriffs and Civil Process Law which is a condition precedent to the filing of the action, rendered the suit incompetent and the court lacked jurisdiction to entertain it. He cited Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 595; (1962) 2 SCNLR 341.

Counsel urged the court to dismiss the appeal.

Learned counsel for the appellant formulated six issues in this appeal.

Learned counsel for the respondents formulated one issue. In my humble view,

Learned counsel for the respondents rightly formulated only one issue because the appeal in reality involves one issue and it is the issue of condition precedent to the filing of an action.