F. Wakwah & Ors. V. S. A. I. Ossai (2001)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A. 

T

his is an appeal against the judgment of Ichoku J. (as he then was) of the Rivers State High Court holden at Port Harcourt, delivered on 9/6/93 and 3rd February, 1993 in suit No. PHC/312/92.

By originating summons, the respondents claimed against the appellants who were tenants in his property situate at No. 61 Ikwerre Road, Port Harcourt the following relief:

“An order of this Honourable Court directing all the defendants to pay their arrears of rents and mense profits into the High Court Registry forthwith and in default of such payments to deliver up vacant possession of the premises forthwith.”

The appellants’ case put briefly is that they were tenants at No. 61, Ikwerre Road, Port Harcourt, which property is in dispute between one Chief Uche (the builder and the owner of the house) and the respondent (who claimed to have acquired the house through an abandoned property deal). The dispute over the house is still pending before the Court of Appeal No. CA/PH/134/89. During the pendency of the appeal, the respondent commenced an action by means of an originating summons against them to recover possession of the premises and to claim arrears. Despite the fact that the suit raised very contentious issues, the learned trial Judge refused to allow them to defend the suit by filing a counter-affidavit. He also discountenanced the counter affidavit filed by them to challenge the originating summons.

At the hearing of the originating summons, the learned trial Judge relied solely on the affidavit filed by the respondent and a document marked Exhibit A by him which was not tendered in evidence by any of the parties.

The respondent’s case put briefly was that by originating summons, he claimed against the defendants who were tenants in his property at No 61 Ikwerre Road, Port Harcourt for arrears of rents and mense profits to be paid into the High Court Registry and in default, to deliver up vacant possession of the promises.

The originating summons which was fixed for argument on 1/6/92 was duly served on the appellants and they entered a conditional appearance on 21/5/92. They filed no counter-affidavit. Counsel commenced his argument on 1/6/92 and it was further adjourned. After a series of adjournments at the instance of defence counsel, the learned trial Judge entered judgment in favour of the respondent against the appellants based on the affidavit in support of the originating summons and a document Exhibit A filed by both counsel in court.

At the end, the learned trial Judge delivered his judgment and granted the relief claimed by the respondent.

Dissatisfied with the judgment, the appellants have appealed to this court and filed a brief and a reply brief in which they framed five issues for determination:-

“1. Whether the trial Judge was right in denying the appellants the right of defence by refusing to look at the counter-affidavit filed by the appellants in answer and in opposition to the originating summons, (arising from Ground 1)?

2. Whether the trial Judge was right in giving judgment in an originating summons in a matter in which the facts are highly contentious and disputable (arising from Ground 4)?.
3. Whether the trial Judge was right in basing and founding his decision on a piece of evidence that was not before or properly before the said court (arising from Ground 2)?.
4. Whether the trial Judge was right in granting possession of vacant premises to the respondent and the right to collect and manage rents when such was not claimed in the summons (arising from Ground 3)?.
5. Whether the trial Judge was right in refusing to join Chief Okafor the claimant to the property, in this suit when he is a person likely to be affected by the outcome of this suit. (arising from Ground 1 of the notice of appeal on page (8) of the records of appeal)?.

The respondent also filed a brief and identified five issues for determination:

“(i) By way of preliminary objection, whether the interlocutory appeal filed by Obi Eze on 5/4/94, against the decision of the lower court dated 9/6/93 (pursuant to the order of this Honourable Court given on 21/3/94) is not incompetent?.

(ii) Whether or not originating summons was inappropriate in the commencement of this suit having regards to the nature of the claim against the defendants?.

(iii) Whether or not the learned trial Judge was right in ignoring the counter-affidavit subsequently filed by the defendants/appellants?

(iv) Whether or not the learned trial Judge was right in relying on Exhibit ‘A’ jointly prepared and filed by both the counsel to the defendants/appellants and the respondent which document established a fact in issue in this case?.

(v) Whether or not the learned trial Judge was right in refusing the motion for joinder?.”

It is my view that the resolution of this appeal hinges on, whether or not an originating summons can be used to commence this suit and, whether there was a denial of fair hearing by the refusal of the learned trial Judge to allow the appellants file a counter affidavit and based his judgment solely on the supporting affidavit and Exhibit ‘A’, which was not tendered by any of the parties.

On the first issue, learned counsel for the appellants submitted that in proceedings under originating summons, trial is by affidavit evidence and the defendants are entitled to file a counter-affidavit and that the refusal of the learned trial Judge to consider the counter affidavit filed by the appellants and relied solely on the evidence of the respondent, denied them of fair hearing which occasioned a great miscarriage of justice. Reliance was placed on the cases of Gbadamosi v. Odia (1992) 6 NWLR (Pt.248) 491; Onwuka Hi-Tek v. ICON Ltd. (1992) 2 NWLR (PC 236) and Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44.

On the second issue, it was his submission that the commencement of the suit by an originating summons is wrong and  improper as such procedure is not designed for contentious suits such as this and relied on Order 1 rule 2(7) of the High Court (Civil Procedure) Rules 1987. He also relied on the cases of University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; National Bank of Nigeria v. Alakija (1978) 9-10 S.C. 59.

He further argued that, this suit is a gross abuse of process in view of the pendency of appeal No. CA/PH/134/89 at the Court of Appeal, Port Harcourt in respect of the same property, the subsistence of the judgment in suits Nos. PHC/43/89 and PHC/73/90 at the High Court, Port Harcourt which were brought before the trial court and are contained at pages 83 to 113 of the records of appeal. The reliefs sought in the said originating summons were interlocutory in nature as they were stated to be pending the hearing of the appeal and since the appeal had been entered at that time, the proper forum for the reliefs ought to have been the Court of Appeal, Port Harcourt and relied on section 15 of the Court of Appeal Act and the cases of Governor of Anambra State & Ors v. C.O. Anah & Ors (1995) 8 NWLR (Pt.412) 213.

On issue three, it was submitted that the learned trial Judge based and founded his decision on a piece of evidence that was not before or properly before the court, stressing that the questionable document marked Exhibit A by the trial Judge in his judgment was not annexed by any of the parties to any affidavit before the court, and there was nothing to show from the record of proceedings where it was tendered.

He further argued that from the records, it was during the judgment that the learned trial Judge suo motu admitted and marked Exhibit A and not during the trial. He therefore forcefully submitted that, the entire judgment of the lower court was based on an inadmissible evidence Exhibit A, stressing that without it, the judgment could have not been the same and relied on section 227(2) of the Evidence Act and the case of Abdullahi v. Elayo (1993) 1 NWLR CPt.268) 171 at 200, Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 and Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203 at 225.

On issue 4, he submitted that the learned trial Judge was wrong when he granted the respondent possession of any or all vacant flats, rooms, stores or shops of 61 Ikwerre Road, Port Harcourt and to have granted him right to collect fresh rents therefrom and use at his absolute discretion when none of such reliefs was claimed by him.  Reliance was placed on the case of Obijiaku v. Offiah (1995) 7 NWLR (Pt.409) 681; Ojeme v. Momodu (1995) 6 NWLR (PtA03) 583.

On issue of possession, he submitted that the learned trial Judge was wrong in making the order of possession and for mesne profits in this case against the appellants in absence of any evidence and the service of any relevant and mandatory statutory notices on the appellants to determine their tenancies before the delivery of possession was ordered. He relied on Gambari v. Gambari (1990) 5 NWLR (Pt.152) 572. It was also his submission that mense profits cannot be ordered where there has not been determination of the tenancy and relied on Umenyi v. Ezeobi (1990) 3 NWLR (Pt.140) 601.

On the fifth issue, he submitted that refusal to join Chief Uche Okafor who has been disputing the ownership of the property with he respondent who claims an interest on the property and the rents accruing therefrom is a necessary party in this case and the learned trial Judge was wrong in refusing to join him despite his application to join and relied on Green v. Green (1987) 3 NWLR (pt. 61) 480.

In reply to all the issues argued by learned counsel for the appellants, Mr Ukiri learned counsel for the respondent submitted that the notice of appeal filed by Obi Eze is incompetent because it was filed out of time and urged the court to strike it out, the appeal filed on 5/4/94 by him.

On the issue of the joinder of Obi Eze as a co-defendant which was refused by the learned trial Judge, he submitted that he was quite right in refusing it because the respondent had no cause of action with respect to payment of rents against him as he was not one of the tenants in the premises. It was also his submission that the contention of learned counsel for the appellants, that Chief Uche Okafor who has been disputing ownership of the property with the respondent who has interest in the rents accruing therefrom, is a necessary party and ought to have been joined, overlooked the relief sought by the appellants in their originating summons.

On the second issue, learned counsel for the respondent submitted that the procedure adopted by the respondent is proper because there was no dispute of the facts in the originating summons because counsel for the appellants admitted in writing and filed same in court that the appellants were in arrears of rent. He further argued that as the appellants having fully participated in the proceedings, they cannot be heard to complain about the validity of the commencement of the action by originating summons and relied on Order 2 rule 1(1) of the High Court Rules of Rivers State 1987. On the submission of learned counsel for the appellants that the suit is an abuse of the process of court, because the appellants were not parties in suit No. CA/PH/134/89 and the reliefs claimed in the suits are not the same. He further submitted that reference to suit Nos. PHC/43/89 and PHC/23/90 in support of the abuse of court process by the present suit was not made out.

It was also his submission that there was no appeal by the appellants against the refusal to file a counter-affidavit by the learned trial Judge. He finally urged the court to hold on this issue that the procedure adopted in commencing the suit was proper and there was no abuse of process whatsoever.

On the third issue, he submitted that once argument has commenced on either a motion or an originating summons, no further affidavit may be filed unless with the leave of court and subject to its discretion of which discretion was refused by the learned trial Judge in this case and relied on page 46 lines 16-24 of the records. On the counter-affidavits filed by the appellants without leave of court, he submitted that they are incompetent and as such the learned trial Judge was right to have ignored them.

On the fifth issue, he submitted that the main issue to be received in this suit was whether or not the appellants were in arrears of rents and relied on Exhibit A, prepared and signed on behalf of the parties by their counsel to show the arrears of rents each of them was owing. He therefore submitted that Exhibit A was an admission on behalf of the appellants and they are bound by it and relied on Ikeanyi v. A.C.B. Ltd & Anor. (1991) 7 NWLR (Pt. 205) 626. He further submitted that having regards to the respondent’s claim, the date of the filing of the document titled Rents Owed by Defendants and the fact that the lower court rightly based its decision entirely on the document admitting the claim before the court, the judgment appealed against is consent judgment and cited in support the cases of Taiye Oshoboja v. Amuda & Ors. (1992) 6 NWLR (Pt. 250) 690, Vulcan Gases Ltd. v. Okulola (1993) 2 NWLR (Pt. 274) 139. He also relied on section 220(c) of the Constitution on leave to appeal against consent judgment which was not sought and obtained in this case.

On the contention of learned counsel for the respondents, that the learned trial Judge granted reliefs not claimed by the respondents, it is not borne out from the evidence before the court because he claimed “vacant possession” in default of payment of the arrears of the rents into court.

On the submission that the appellants were not served with statutory notice, he contended that it was not raised in the court below. He further submitted that as the order for vacant possession was subject to the appellants’ failure to comply with the order of court, services of statutory notices were not required since it was the consequence of failure to obey an order of court that will require such services. I will first of all consider the preliminary objection of learned counsel for the respondent to the competence of notice of appeal filed by Obi Eze on 5/4/94. The main contention of learned counsel for the respondent is that the interlocutory appeal filed by Obi Eze on 5/4/94 against the refusal of his application for joinder as a party in the proceedings in the lower court is incompetent because the notice of appeal was filed out of time. In reply, learned counsel for the appellants submitted that as Obi Eze, the interlocutory appellant is not a party in the substantive appeal, cannot render this appeal incompetent, stressing that there being no nexus between the interlocutory appeal filed on 5/4/94, and the substantive appeal filed on behalf of the appellants by Chief Uche on 11/2/94, the preliminary objection is misconceived and should be overruled.

I am in full agreement with the submission of learned counsel for the appellants that as Obi Eze was not a party to the substantive appeal, his omission or commission cannot in any way render this appeal incompetent and as such the incompetence of the interlocutory appeal of 5/4/94 against the decision of 9/6/93 cannot affect this appeal on 11/2/94 against the judgment of 3/2/94. The preliminary objection is struck out.

As I said from the onset, the resolution of this appeal hinges on whether or not commencement of this action by originating summons is appropriate in the circumstances and, whether there was a denial of justice or fair hearing by the refusal of the learned trial Judge to allow the appellants to file a counter-affidavit and at the end based his judgment solely on the supporting affidavit of the respondent and Exhibit A, a document which was not tendered by any of the parties.

On the first issue, I would like to reproduce the relief claimed by the respondent in his originating summons. It reads:

“An order of this Honourable Court directing all the defendants to pay their arrears of rents and mense profits into the High Court Registry forthwith and in default of such payment to deliver up vacant possession of the premises forthwith.”

The High Court Civil Procedure Rules 1987 of the Rivers State provides the circumstances in which proceedings may be begun by originating summons. Order 1, rule 2(2) provides as follows:

“I. Proceedings may be begun by an originating summons where:

(a) the sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law.

(b) there is unlikely to be any substantial dispute of fact.

See also Order 38 rules 1 and 2, of the said rules. The originating summons of the respondents does not fall within the provisions of the above rules.

In the case of University of Lagos v. Aigoro (supra), it was held that an originating summons is intended to be used in limited situations like the construction and interpretation of documents. Again, in the case of Sadiku v. Attorney-General of Lagos State (supra), it was held that originating summons is only applicable in such circumstances where there in no dispute on question of facts or even the likelihood of such dispute and the determination of such question of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings.

It is therefore my view that the commencement of this suit by originating summons where the facts are highly contentious is wrong.

The submission of learned Counsel for the respondent on the third issue that, once an argument has commenced on either a motion or on an originating summons, no further affidavit may be filed unless with the leave of court and subject to the court discretion which was refused in this case. The reasoning of the trial Judge that the motion was started and counsel went to file a counter affidavit which therefore cannot be used is grossly erroneous. The motion came for the first time on 1/6/92 and the trial Judge refused an adjournment on the application of counsel for the appellants who was reported sick because he did not exhibit a medical certificate to his letter of adjournment. See page 43 of the records. He has a discretion to allow them file a counter-affidavit in order to hear them. The learned trial Judge therefore relied on the evidence of the respondent only and thereby denied the appellants of any hearing which occasioned miscarriage of justice. It is trite law that it is the duty of the court to hear the case of the plaintiff and that of the defendant on the merit before arriving at a decision in order to do substantial justice between the parties as each party has the right to have his dispute tried on the merits and the court should do everything it properly can do to favour the trial of the questions between the parties.

In the case of The State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33 at 56, it was held that it is an elementary and fundamental principle of the administration of justice that no decision can be regarded as valid unless the trial Judge or court heard both sides in the conflict. See also the case of Onwuka Hi-Tek Plc v. ICON Ltd. (1992) 2 NWLR (Pt.226) 733 where it was held that a hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused a hearing or not given opportunity to be heard, the hearing cannot qualify as fair hearing.

By deciding the matter solely on the affidavit in support of the originating summons, the learned trial Judge adopted a procedure that is akin to ignoring a statement of defence and proceeding to give judgment based only on a statement of claim. This issue is also resolved in favour of the appellants against the respondent.

On the fifth issue, learned Counsel for the respondent submitted that Exhibit A prepared and signed on behalf of the parties by their counsel to show the arrears of rents each of the appellants was owing and they were bound by it. It is curious to note that Exhibit A which was admitted in evidence was not tendered by any of the parties. It was not attached to any of the affidavits before the court. At page 168 of the records, the learned trial Judge said:

“The court will at all times look at its records and the case file and take notice of the processes so far filed and the proceedings. Both counsels for the plaintiff and the defendants jointly filed in court the document signed by them showing the rent owed by the defendants. The document I will admit and marked Exhibit A to these proceedings. All the rents he owned had been calculated up to and including 1st January, 1994.”

From the above, it is quite clear that the learned trial Judge suo motu admitted and marked the document Exhibit A and not during trial as ought to be. The learned trial Judge based his judgment on Exhibit A which was wrongfully admitted by him. Suffice it to say that the manner in which Exhibit A became an exhibit in the judgment rather than during trial is improper and such procedure of reception of evidence occasioned miscarriage of justice.

On the refusal to join Chief Uche Okafor, who has been disputing the ownership of the property with the respondent who claims an interest on the property and the rents accruing from it is a necessary party and the court was wrong in refusing to join him as a party in the case.

Before concluding this judgment, I would like to refer to the case of Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt.222) 132 where Olatawura, J.S.C. said at page 162:

“We must balance the need not to delay justice with an important requisite in the administration of justice-non-denial of justice. Delay of justice is bad, but denial of justice is worse and the denial inflicts pain, grief suffering and untold hardship.”

The learned trial Judge in this matter was sacrificing the need for justice on the alter of speed.

In conclusion, this appeal succeeds. It is hereby allowed. The ruling of the court below is hereby set aside. Pleadings shall be ordered in this case. The learned trial Judge having already heard too much on the merit of the case, and made findings on issues to be tried on proper pleadings and evidence could no longer be considered detached.

The case shall therefore be transferred to the Chief Judge Rivers State High Court for assignment to another Judge other than himself within jurisdiction.

The appellants are entitled to costs assessed at N5,000.00 against the respondent.

---

Other Citations: (2001)LCN/0957(CA)