Effiong Asuquo Omon & Ors V. Mrs. Rosemary Eyo Effiong Omon (2003)
LawGlobal-Hub Lead Judgment Report
SIMEON OSUJI EKPE, J.CA.
This is an appeal against the ruling of Effiong, J. delivered on 30/3/2001 at the Calabar Division of the High Court of Cross Rivers State in suit No. HC/MSC.52/2001.
The respondent herein as plaintiff in the court below initiated the proceedings against the defendants, now appellants leading to this appeal by motion ex parte filed on 19/3/2001, and prayed that court for the following:
“1. An order restraining the 1st and 4th defendants from attempting to contract any form of marriage whether customary or English whilst the marriage between the plaintiff and the 1st defendant still subsists.
2. An order of interim injunction restraining the 2nd and 3rd defendants from arranging for any form of marriage between the 1st defendant and the 4th defendant or any other person without first of all, dissolving the earlier marriage between the plaintiff and the 1st defendant.
3. And for such further order(s) as this honourable court may (sic) deem fit to make in the circumstance.”
The motion ex parte is supported by an affidavit of 23 paragraphs sworn to by the respondent. It is reproduced hereunder as follows:
“1.That by my position aforestated, I am conversant with the facts of this case.
2.That I am the plaintiff/applicant and the deponent to this affidavit.
3.That I am the legal wife of the first defendant on record.
4.That the first defendant on record is a Nigerian of Efik descent in Cross River State who resides in the United States of America.
5.That in 1990, precisely 8/12/90 the plaintiff was given out in marriage to the 1st defendant on record in a well celebrated ceremony and in line with the Efik custom and tradition, the invitation card/programme for the ceremony are attached herein as exhibits A-A1.
6.That on the same date this same marriage was blessed in the Sacred Heart Cathedral, Egerton, in Calabar with members of both families and the public in attendance. The invitation cards printed and paid for by the 1st defendant is attached herein as exhibit ‘B’.
7.That the rush to do this marriage on the same day was to enable the 1st defendant to travel back to the USA since he was already out of time.
8.That after these forms of marriage were contracted, the 1st defendant travelled back to the States with an arrangement which will enable the wife join him in the States.
9.That the processes for plaintiff acquiring her international passport and visa had reached an advanced stage before they were frustrated by the 1st defendant who could not furnish the embassy with her bank or account number.
10.That after the marriage, the 1st defendant hurried the process of change of name of the plaintiff to enable her complete her visa processes.
11.That the plaintiff in line with her new status changed her name which was published in the Nigerian Chronicle of Friday, April 5th, 1991. The said Chronicle Newspaper is hereto attached and marked exhibit ‘C’.
12.That before the change of name, the 1st defendant wrote to his father-in-law (plaintiff’s father) on the 13/2/91 first authorising him to execute affidavit attesting to the fact of the marriage on his behalf. The two letters dated 13/2/91 are hereto attached and marked exhibits D-D 1.
13.That from 8/12/90 till date, the plaintiff is bearing the name of the first defendant and has so carried herself being fully secured as a married woman.
14.That as a result of her status as a married woman, she had continuously, for this long, not made any attempt to remarry since she was convinced her husband will come to take her away one day.
15.That the plaintiff, kept cool, not wanting to ask questions about her husband’s long absence because she thought he could be going through some financial problems.
16.That, this was not minding the fact that information had reached her to the effect that the 1st defendant was now married to a white lady.
17.That it is now clear and the 1st defendant had sent messages down to Calabar, to the effect that he has finally disposed of his white wife (no matter what that means).
18.That inspite of the collapse of the marriage between the 1st defendant and the white woman, the defendant did not deem it fit to call or write to the plaintiff intimating her of his predicament and possibly apologising for her (sic) misdeeds.
19.That to the plaintiff’s shock and surprise, she became privy to an invitation card which purports to publicise a marriage between her husband and one Lizzy Oku Ita, the 4th defendant on record. The invitation card for the new marriage which commence on the 17th – 31st of March, 2001 is here attached as exhibit ‘E’.
20.That the plaintiff has suffered well in excess of any normal woman and if this new marriage is allowed to be contracted, plaintiff will not only suffer untold hardships, but both physical and psychological trauma which may lead to something she cannot ordinarily control.
21.That the only way this gross breach of the plaintiff’s right can be mitigated is for an order of this court restraining the parties from contracting this new marriage.
22.That the plaintiff is willing to pay cost of this application if found frivolous.
23.That I make this oath conscientiously believing its contents to be true to the best of my knowledge and in accordance with the Oaths Acts, 1990 as amended.”
The respondent also filed a further and better affidavit of 5 paragraphs in support of the motion ex parte, which is reproduced as follows:
“1.That I am the deponent in this affidavit being the plaintiff/applicant.
2.That I filed this suit against the defendants to forestall the new marriage contemplated by my husband with another woman without first of all divorcing me.
3.That during the initial filing, I forgot to exhibit my marriage certificate which my counsel, A.E. Akan, Esq. of Esu & Associates informed me was necessary.
4.That this further and better affidavit is to enable me exhibit the said certificate of marriage dated 21st December, 1990, is hereby attached and marked exhibit ‘A’.
5.That I make this oath conscientiously believing its contents to be true to the best of my knowledge and in accordance with the Oaths Act, 1990 as amended.”
The motion ex parte came up before the court below on 20/3/2001 and was adjourned to 21/3/2001 for hearing.
On that 20/3/2001, the appellants in reaction to the motion ex parte filed a motion on notice praying the court below as follows:
“1.An order dismissing the proceedings (initiated by the motion ex parte), there being no jurisdiction in this court to hear and determine same.
2. An order dismissing this proceedings as being predicated upon fraud and as being an abuse of court process, or
3.An order directing the plaintiff therein, to put the defendants on notice in regard to the pending application ex parte filed.
4.An order for accelerated hearing of the proceedings and for the abridgement of time set by the rules of court.”
The motion was supported by an affidavit with the following paragraphs as hereunder reproduced:
“1That I am the 1st defendant in this proceedings, and I have the consent of the other defendants to depose to this affidavit.
2.That my attention has been drawn to this proceedings commenced by the plaintiff against me and the other defendants.
3.That though the said process was filed on the 19th March, 2001, the plaintiff is yet to file a writ of summons and thereby specify the relief sought against me.
4.That there being no cause of action disclosed against me, this court has no jurisdiction to hear and determine this proceedings or grant the application sought. This I am informed of by my solicitor, Edem Effiom Ekong, Esq. and I verily believe.
5.That the act sought to be restrained comes up on Saturday the 24th of March, 2001 while this application was filed on Monday the 19th of march, 2001. There was therefore, ample time to file and serve a writ of summons and a motion on notice.
6.That the reason why the plaintiff has chosen to come through a miscellaneous suit filed ex parte is that the processes filed before this court are tainted with fraud.
Particulars
(a)That while paragraphs 5, 6, 7 and 8 of the plaintiff’s affidavit and exhibits A, A1 and B annexed thereto alleges that both the traditional marriage and church wedding took place the same day, (8/12/90) exhibits ‘A’ to the further affidavit filed by the same plaintiff exhibits a marriage certificate issued on a different day entirely (21/12/90).
(b)That I was never married to the plaintiff in the Sacred Heart Cathedral, Calabar, or at all and the said marriage certificate exhibited by the plaintiff is a forgery. A self-explanatory letter dated 20/3/2001 from the administrator of Sacred Heart Cathedral, Calabar, is hereto annexed as exhibit 1.
(c)That in the same vein, the other exhibits annexed to the plaintiff’s are clever forgeries manufactured to mislead this court and abuse its process.
(d)That while paragraphs 5 and 6 of the plaintiff’s affidavit alleges that the traditional marriage was concluded before the church blessing, their exhibits A and B show that the church blessing was at 10.00 a.m. while the traditional was at 2.00 p.m. i.e., the church blessing was before the traditional marriage.
7.That indeed, all the allegations contained in the plaintiff’s affidavit are false. The plaintiff is a former acquaintance of mine and is doing this out of malice and envy.
8.That invitations have already gone out for my marriage on the 24th of March, 2001, and a church wedding on the 31st of March, 2001.
9.That a granting of the plaintiff’s application without giving me an opportunity to be heard will cause me irreparable and unquantifiable humiliation, embarrassment and pecuniary losses.
10.That on the other hand, whatever cause of action the plaintiff may have against me can be adjudicated upon without preventing my marriage.
11.That if the court eventually holds that I am lawfully married to the plaintiff, then whatever I do on the 24th and 31st of March, 2001 will be a nullity anyway.
12.That I undertake to waive my rights to 48 hours, if I am served with a motion on notice by the plaintiff.
13.That I am ready for an accelerated hearing of this matter, in order to avoid this potentially harmful situation.
14.That I swear to this affidavit conscientiously believing its contents to be true and correct and in accordance with the Oaths Act, 1990.”
The 1st appellant also filed a further and better affidavit of 6 paragraphs, set out hereunder as follows:
“1.That I deposed to an affidavit on the 20th day of March, 2001, in support of a motion on notice.
2.That after filing the said affidavit, I came upon a further affidavit filed on the same day by the plaintiff, wherein a certificate of marriage was exhibited thereto.
3.That knowing fully well that I contracted no such marriage, I sent the said certificate to the administrator of the Sacred Heart Cathedral, Calabar, requesting to ascertain the genuineness thereof.
4.That in reaction to my enquiries, the said administrator categorically denied the authenticity of the said certificate and communicated same to my solicitors through a letter dated 21st March, 2001 and annexed hereto as exhibit II.
5.That the date on the certificate also contradicts the dates on which the said marriage is alleged to have taken place.
6.That I swear to this affidavit conscientiously believing its contents to be true and correct and in accordance with the Oaths Act, 1990.”
The motion on notice was also set down for hearing on 21/3/2001 by the court below.
On 21/3/2001, both the motion ex parte and the motion on notice came up before the learned trial Judge for hearing. The learned trial Judge first took the motion ex parte which was moved by the learned counsel for the respondent and adjourned it for ruling on 27/3/2001.
As for the motion on notice filed by the appellants, the trial court adjourned the same to 27/3/2001 for hearing.
On 27/3/2001, the learned trial Judge delivered his ruling on the motion ex parte and granted all the prayers therein and by way of abridgement of time, he ordered that the motion on notice, if already served, be argued immediately then. The appellants’ counsel then moved the motion on notice dated 20/3/2001, challenging the propriety of the motion ex parte as a method of initiating or beginning the action in the court below and also the jurisdiction of the court below to entertain the action.
Thereafter, the respondent sought for adjournment to reply and the trial court adjourned to 28/3/2001 for reply. On 28/3/2001, the respondent filed a counter-affidavit opposing the motion on notice. The learned trial Judge then adjourned the matter to 29/3/2001 to enable the parties call witnesses for oral evidence before the court.
On 29/3/2001, the matter was further adjourned to 30/3/2001 when the respondent called two witnesses and she also gave evidence on oath. The appellants opted not to call any witness. At the close of evidence for the respondent, both counsel for the parties addressed the court. Thereafter, the learned trial Judge delivered his ruling at pages 72 to 73 of the record of appeal.
In the ruling, the learned trial Judge observed at page 72 of the record thus:
“An aggrieved person in the case of urgency can run to court for help and mistakes and irregularity in so doing may be treated, as mere irregularities is only to get to the heart of the matter.”
He referred to Order 2 rule 1 and Order 25 rule 28 of the High Court Rules 1987. Continuing at page 73 of the record, the learned trial Judge without an order expressly dismissing the motion on notice filed by the appellants, held as follows:
“In this case, in which parties have made sound and lengthy arguments and oral evidence taken to resolve contradictions in affidavits, I hold that a prima facie case has been established against the 1st defendant and order that my order ex parte made on 27th March, 2001 stands. For avoidance of doubt, the defendant is prevented to contract any marriage until this action ends.”
It is pertinent to mention here that after filing the motion ex parte on 19/3/2001, by which the proceedings in this matter were originated or initiated, the respondent on 29/3/2001 filed a writ of summons in suit No. HC/141/2001 at the Calabar Judicial Division, vide pages 43 to 44 of the record of appeal and claimed against the appellants the following reliefs:
“1. The sum of N10,000.00 (Ten thousand naira) only as damages for the mental, physical and psychological trauma caused the plaintiff having abandoned her for eleven years without words or any means of sustenance.
2. The sum of N1,000,000.00 (One million naira) only as damages for the embarrassment for publicly rejecting the plaintiff as the 1st defendant’s lawful wife.
3. The sum of N500,000.00 (Five hundred thousand naira) as damages for falsely calling the plaintiff a fraud.”
However, from the record of appeal, nothing further happened about the said writ of summons.
The appellants, not being satisfied with the ruling of the learned trial Judge, appealed against the same to this court on a notice of appeal predicated on three grounds of appeal.
Later, on the application of the appellants, the court granted a departure from the rules of the court for the compilation of the record of appeal, so that the bundle of documents compiled by the appellants and marked exhibit ‘A’, annexed to the affidavit in support of the application was adopted as the record of appeal.
Thereafter, the appellants filed their brief of argument and formulated two issues for the determination of the appeal, to wit:
“(a) Whether the lower court was right in dismissing defendants/appellants application challenging its jurisdiction, having regard to the manner of commencement of the suit leading to the appeal herein.
(b) Whether the lower court was right when it declined to set aside the ex parte orders made on 27th of March, 2001.”
The respondent did not file her brief of argument inspite of the application on notice filed by the appellants on 20/3/2002 for the court to hear the appeal based solely on the appellants’ brief of argument and granted on 22/4/2002. Therefore, this appeal is heard solely on the appellants’ brief of argument, since the respondent refused or neglected to file the respondent’s brief of argument. Arguing issue No. (a), the appellants in their brief of argument contended that the learned trial Judge was manifestly wrong to dismiss the appellants’ motion on notice challenging the jurisdiction of the lower court. It was submitted that the action was not commenced in accordance with the mandatory provisions of Order 1 rule 2 of the Cross River State High Court (Civil Procedure) Rules 1987, as the action was initiated by ex parte application.
Furthermore, it was submitted for the appellants that in the absence of the respondent filing a writ of summons to initiate the action, the court below had no jurisdiction to hear and determine the case as the action was incompetent. It was contended that the learned trial Judge by classifying fundamental defects in the manner the respondent initiated the action as a mere irregularity curable by Order 2 rule 1 of the High Court Rules, revealed a clear misunderstanding of the law.
It was also contended that the court below being a creature of statute was bound by the rules of procedure, and to that extent, it acted outside the scope of the rules of the court resulting in the suit and the proceedings being null and void and that the court below was bound to strike out the respondent’s action for want of competence. Cases of Quo Vadis Hotel & Restaurant Ltd. v. Commissioner of Lands, Midwestern State of Nigeria (1973) 1 ANLR 660; Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587; Uwah Printers (Nig.) Ltd. & Anor. v. Emmanuel Umoren (2000) 15 NWLR (Pt. 689) 78, (2001) FWLR (Pt. 42) 19 were cited.
On issue No. (b), the appellants contended that the lower court was wrong when it refused to set aside its ex parte orders dated 27th March, 2001 in the court’s ruling of 30th March, 2001, when the whole action was incompetently initiated. It was also contended that having regard to the material contradictions in the testimonies of the respondent and her witnesses, any reasonable tribunal ought to have discharged the ex parte orders of 27th March, 2001. The appellants, therefore, urged this court to set aside the said ex parte orders of the court below and to strike out the whole suit because it is a nullity, having been commenced by ex parte application and the court below lacked jurisdiction to entertain the same.
I will deal with the two issues formulated by the appellants in their brief of argument together.
The fundamental question is whether the proceedings in the instant case were properly commenced or initiated by ex parte motion in the High Court as was done by the respondent.
By Order 1 rule 1 of the Cross River State High Court (Civil Procedure) Rules 1987, it is provided that subject to provision of any Act, civil proceedings may be began by writ, originating summons, originating motion or petition. In other words, there are four different methods as shown above by which a litigant may commence actions of civil proceedings in the High Court of Cross River State as is obtainable in any other High Court in Nigeria under its Civil Procedure Rules.
Order 1 rule 2(1) of the self same High Court Civil Procedure Rules of Cross River State sets out proceedings which must begin by a writ of summons, while Order 1 rule 2(2) and rule 2(3) respectively set out the proceedings, which may be began by originating summons and by motion or petition as the case may be.
I do not deem it necessary to itemise here the various proceedings that should be begun in the High Court by each of the four different methods stated above, but suffice it to say that if a law or a rule of practice or procedure prescribes that proceedings in respect of a particular cause of action shall be commenced by one method, it would be wrong and indeed indefensible for a litigant to commence the proceedings in respect of that particular cause of action by any of the other method or methods. See Karimu Alade Obajimi v. A.-G., Western Nigeria (1967) 1 All NLR 31; (1968) NMLR 96. Clearly, under Order 1 rule 2(3) of the Cross River State High Court (Civil Procedure) rules 1987, it is provided that proceedings may be commenced by originating motion or petition whereby these rules or under any written law, the proceedings in question are required or authorized to be so begun, but not otherwise.
From my close perusal of Order 1 rule 2 of the said High Court (Civil Procedure) Rules of Cross River State, there is no provision for commencing an action or proceedings by ex parte motion.
Therefore, I am of the view that the respondent was in a grievous error by commencing the proceedings in this case by ex parte motion instead of by writ of summons as prescribed in Order 1 rule 2(1) of Cross River State High Court (Civil Procedure) Rules 1987. The action or proceedings thus commenced by ex parte motion in this case is incompetent. The error in so doing has occasioned a fundamental defect to the action or proceedings and not a mere irregularity which can be cured by Order 2 rule 1 of the self same High Court (Civil Procedure) Rules.
Consequently, the court below lacked the competence or jurisdiction to entertain this action or proceedings that was wrongly initiated by ex parte motion. In Madukolu v. Nkemdilim (1962) 1 All NLR 587 at page 595, it was held inter alia by the Federal Supreme Court that a court is said to have jurisdiction or competence when the case comes before the court initiated by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction. And that any defect in competence is fatal for the proceedings are a nullity, however well conducted and decided the case may be.
Accordingly, the proceedings in this case in the court below are a nullity and ought to be set aside having been wrongly initiated or commenced by ex parte motion.
For the above reasons, I therefore allow this appeal and set aside the proceedings in the instant case, including the ex parte orders granted by the learned trial Judge on 27/3/2001 upon the ex parte motion of the respondent filed on 19/3/2001.
I award costs to the appellants assessed at the sum of N5,000.00 against the respondent.
Other Citations: (2003)LCN/1378(CA)