Dr. Jonathan Cookey V. Mrs. Evangeline Fombo & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiff in paragraph 14 of her statement of claim which superceded the writ of summons, claims as follows:-

“Wherefore the plaintiff claims against the 1st defendant and 2nd defendant jointly and severally for –

(a) Declaration that the purported sale of property situated at No. 155 Niger Street, Port-Harcourt by the 1st defendant to the 2nd defendant is null and void.

(b) An order of court rectifying the said sale.

(c) An injunction restraining the 2nd defendant, his agents, servants or privies from tampering with the said property or any part thereof.”

The defendants filed their statement of defence separately. The 2nd defendant counter-claimed against the plaintiff.

Thereafter the 2nd defendant by motion on notice prayed the court for the following reliefs.

“1. An order setting down for hearing the point of law raised by the 2nd defendant in paragraphs 15(i) and (ii) of his , statement of defence before trial;

2. An order dismissing the plaintiff’s action; further and in the alternative
3. An order discharging the interim order for stay of further proceedings made in this case in respect of suit No. PRT/878/92 between Dr. J. A. Coo key v. Mrs. Evangeline Fombo. And further take notice that the grounds for this application are as follows:-
4. The bundle or aggregate of facts or factual situation on which the plaintiff relies to support her claim as stated in paragraphs 14(a), (b) and (c) of her statement of claim is the recommendations of Major David Mark’s Committee on the Implementation of Abandoned Property as stated in paragraph 14 of the statement of claim.
5. The said recommendations remains a mere recommendation and nothing more. It cannot be elevated to the status of a decree, edicts and/or law. It is at most binding in honour and has no binding force of law.
6. The said recommendations has not created in the plaintiff any legally enforceable right for which she could seek to enforce by an action and consequently this suit does not disclose any reasonable cause of action known to law.
7. The interim order for stay of further proceedings in PRT/878/92 was made to last for a short period. The return date was 14/12/94 for hearing of the motion on notice. The plaintiff has since then not taken any positive step to ensure the diligent prosecution of the motion on notice.”

The motion was supported by an affidavit of 13 paragraphs.

The plaintiff filed a counter-affidavit of 4 paragraphs only. The application was argued and ruling reserved. In a considered ruling the learned trial Judge allowed the 2nd defendant’s application and granted all the reliefs sought by the applicant in the motion.

Dissatisfied with the ruling of the High Court, the plaintiff” appealed to the Court of Appeal holden at Port-Harcourt. In a unanimous judgment, the Court of Appeal allowed the appeal, set aside the ruling of the High Court and remitted the case back to the High Court of Rivers State for retrial by another Judge.

Aggrieved by the decision of the Court of Appeal, the 2nd defendant has now appealed to this court. In obedience to the rules of court, the pm1ies filed and exchanged briefs of argument which were adopted by counsel at the hearing on 22/2/2005.

In the amended appellant’s brief the following two issues were submitted for determination in this appeal:-

“1. Whether the Court of Appeal was right in holding that the learned trial Judge erred to have examined the 1st respondent’s proposer; amended statement of claim in concluding that no reasonable cause of action was disclosed, without formally inviting the parties to first argue the motion for amendment.

2. Whether the Court of Appeal was right to have declined to make any determination as to whether or not the plaintiff’s claim disclosed a reasonable cause of action.”

The two issues will be taken together. The starting point will be to find out the reasons given by the trial court in dismissing plaintiff’s suit.

After setting out the plaintiff’s claims on page 52 of the record, the ruling continued thus –

“What are the facts pleaded in support of these claims

They are to be found in paragraphs 10 and 14 of the plaintiff’s statement of claim filed on 23/9/92 already

stated above. By the said paragraphs plaintiff in instituting the action placed reliance on the recommendation of the Major David Mark’s Implementation Committee on Abandoned Property which amongst others gave an inhabitant of a property right of preference or priority to purchase a property where he or she has stayed longer in the property sought to be purchased. It could be seen from the above that plaintiff’s action is predicated on paragraphs 10 and 14 of the statement of claim. The recommendation of Major David Mark’s Committee on Implementation of Abandoned Property averred to in paragraphs 10 to 14 of the statement of claim cannot be said to have created any enforceable legal right. They are mere recommendations which cannot be elevated to a Decree, Edict or Law enforceable by the plaintiff. They cannot give rise to a cause of action as they are not binding on the 1st defendant as to whom it could exercise its right of sale of the property in question. It is pertinent to observe that no where in the writ of summons or statement of claim is the plaintiff saying that her right as a tenant has been infringed by the sale to the 2nd defendant. In view of the foregoing, the aggregate of the facts relied upon by the plaintiff in the statement of claim cannot entitle her to obtain from the court any remedy against the defendants. Having regard to the foregoing the writ of summons and statement of claims disclose no reasonable cause of action. The action should be dismissed and it is hereby dismissed.”

It should have been clear by now that the learned trial Judge in his ruling relied on the plaintiff’s writ of summons and the statement of claim filed on 23/9/92 (see pages 1-8 of the record) and not the proposed amended statement of claim. The record, however, shows that the plaintiff filed a motion for leave to amend her statement of claim on 8/1/96. This motion was never argued or moved up to the date the learned trial Judge delivered the ruling herein on 20/3/96.

But in the ruling on page 54 the court observed as follows:-

“The proposed amendment in the circumstance also discloses no cause of action against the defendants particularly the 2nd defendant. It is trite law that where the statement of claim discloses no cause of action and if the court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action dismissed. See Chief Dr. Irene Thomas & 5 Ors. v. The Most Rev. Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 671-672, paras. G-B.”

The trial court by commenting or remarking as it did above gave the impression that the proposed amended statement of claim was part of the motion, and the Court of Appeal was of the view that the learned trial Judge incorporated his views on a motion to amend the statement of claim yet to be argued in his ruling and thereby dismissed plaintiff’s claims. In addition, the Court of Appeal said the learned trial Judge ought to have taken the motion for amendment first, before proceeding to dismiss the suit and without hearing the parties on the merit of the amendment sought. The Court of Appeal as noted above relied solely on this issue of fair hearing when it allowed the appeal and sent the case back for retrial by another Judge giving rise to this appeal. And because of this order, the Court of Appeal said it was not in a position itself to decide at that stage whether or not the plaintiff’s claims disclose a reasonable cause of action.

There is no doubt that the plaintiff filed a motion in court for leave to amend her statement of claim on 8/1/96. That motion was never argued or moved up to 20/3/96 when the ruling herein was delivered. The 2nd defendant’s motion to dismiss the plaintiff’s claims had been argued by his counsel on 17/7/95. So for all intents and purposes the proposed amended statement of claim remains a proposal only and of no legal consequences. The 2nd defendant’s motion and the arguments thereon all relate to the writ of summons and the statement of claim and not the proposed amended statement of claim which was not yet before the court when the motion to dismiss was argued on 17/7/95. The learned trial Judge also throughout his ruling referred to the writ of summons and various paragraphs of the statement of claim only, and not to any proposed amended statement of claim. In other words, plaintiff’s claims were dismissed relying on the writ of summons and statement of claim only and not on any proposed amended statement of claim. I think the comment or remark made about the proposed amended statement of claim should be treated as merely gratuitous which does not affect the merit of the ruling. The remark is unnecessary. The Judge had reached the conclusion before that remark. The Court of Appeal was therefore wrong in my view to say that the learned trial Judge had incorporated his views on the motion yet to be argued and dismissed plaintiff’s case. What views if I may ask That the proposed amendment also disclosed no reasonable cause of action That was the conclusion long arrived at after closely examining various paragraphs of the plaintiff’s statement of claim before the court and not the proposed amended statement of claim. I think the trial court was right.

It is settled law that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined to ascertain whether or not there is a reasonable cause of action. That was what the learned trial Judge did in this case. I think he was right (see for example Ogbimi v. Ololo (1993)7 NWLR (Pt. 304) 128; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.

The Court of Appeal is however perfectly right for declining to rule on its own whether or not the plaintiff’s claims disclosed a reasonable cause of action having regard to the nature of the order for a retrial it had made. To have done otherwise, would have defeated the purpose of the order for a retrial.

The appeal therefore succeeds in part. Issue (1) succeeds while issue (2) fails. For the avoidance of doubt the judgment of the Court of Appeal is set aside while the ruling of the trial High Court is restored.

Plaintiff’s claims before the High Court stand dismissed.

The 2nd defendant/appellant is awarded costs of N10,000.00 against the plaintiff/respondent only.

---

SC.121/2000