Lemna Nigeria Limited & Ors V. La’iyoba Nigeria Limited (2016)

LawGlobal-Hub Lead Judgment Report

PAUL OBI ELECHI, J.C.A. 

This is an appeal against the interlocutory decision (Ruling) of the High Court of Cross River State, Calabar Division delivered by Honourable Justice F. Nnang Isoni on the 1/4/2014 dismissing the Appellants Notice of preliminary objection challenging the Writ of Summons on the grounds of non-Certification and improper service contrary to Order 8 Rule 2(3) and Order 12 Rule 2 of the High Court of Cross River State (Civil Procedure) Rules, 2008.
The brief facts of this case is that the Respondent instituted this suit via a writ of summons dated and filed on the 23rd January 2014 seeking to enforce the terms of three equipment lease agreement between it and the Appellants. The said writ was duly served on the 1st Appellant. On the 27th day of January 2014, the Appellants filed a joint memorandum of appearance and followed it up on the 20th February 2014, by filing a Notice of Preliminary Objection challenging the jurisdiction of the Lower Court to entertain the suit on two grounds to wit:
(1) Whether failure to serve the 2nd and 3rd Defendants as required by the Rules of Court has not robbed

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the Court of the jurisdiction to hear this suit.
(2) Whether non-compliance with the mandatory provisions of Order 8 Rule 3 and Order 12 of the High Court of Cross River State (Civil Procedure) Rules 2008 is not fatal to this case?

The Respondent filed a Written Address in opposition to the Appellants’ Preliminary Objection on the 24th February 2014.
Both processes were adopted and relied upon by parties. On the 1st April 2014, the learned trial Judge delivered a considered Ruling dismissing both grounds of Preliminary Objection.
Dissatisfied with the said Ruling, the Appellants appealed on two grounds.

From the two grounds of appeal, the Appellant distilled one issue for determination viz:
(1) Whether in the light of the decision of this Court, it unreported Judgment in Appeal No. CA/C/174/2009: ONUN OTU ECHU IGRIGA V. ELDER EFFIONG OKON BASSEY, the Learned trial Judge was right in over ruling the Preliminary Objection of the Appellants?

To argue this issue, Learned Appellants’ Counsel stated that their contention in the Preliminary Objection was that the Respondent did not comply with the provisions of Order 8 Rule 2(3)

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and Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2008. Against the above provision, Learned Appellants’ Counsel submitted that the procedure for issuing of a Writ of Summons does not permit for substantial compliance because the provisions of Order 8 of the Cross River State (Civil Procedure) Rules 2008 are not disjunctive but are conjunctive. The validity of issuing a valid originating process goes to the root of the matter. SeeKIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) 402 at 406. Also that the word ‘SHALL’ as cited in both Order 8 Rule 2(3) and Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2008 imports mandatoriness as opposed to permissiveness. See FIDELITY BANK PLC VS. MONYE (2012) 4 FWLR (PT. 1291) IBAKU v. EBINI (2010) 17 NWLR (PT. 1222) 286.

On the basis of the above, Learned Appellant Counsel then urged the Court to allow the appeal, set aside the Ruling delivered in Suit No. HC/26/2014 on the 1st April 2014, strike out the Writ of Summons and other Originating processes in Suit No. HC/26/2014 and finally to strike out Suit No. HC/26/2014 for being incompetent.

In reply, the

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Respondents filed and raised a Preliminary Objection to the competence of the Notice of Appeal filed on the 3/4/2014 together with one ground of appeal and urged the Court to strike out the said ground and the entire Notice of appeal together with the Appellants’ brief predicated thereon.
The grounds of the Objection he stated include:
(1) That Section 14(1) of the Court of Appeal Act 2011 and Section 243(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) mandatorily requires that the Leave of either the Lower Court or this esteemed Court be sought and obtained before a notice of appeal challenging on interlocutory decision can be validly filed.
(2) That the Appellant/Respondents did not seek and obtain Leave of either the Lower Court or this esteemed Court before they filed their notice of appeal on the 3/4/2014.
(3) That the aforesaid notice of appeal purportedly filed on the 3/4/2014 is invalid and therefore incompetent to sustain the appeal.
(4) That a party cannot raise two issues or complaints in the same ground of appeal.
(5) That ground one of the grounds of appeal at pages 88-89 of the records

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raises two different issues of certification and service of the originating processes respectively, as envisaged in Order 8 Rule 2(3) and Order 12 Rule 2 of the High Court of Cross River State (Civil Procedure) Rules 2(3) and same is therefore defective and/or incompetent.
(6) That the sole issue in the Appellant brief distilled from the said ground one is therefore in the air and same is liable to be struck-out or discountenanced.

In arguing the Preliminary Objection, the Respondent’s Counsel contended that the Appellants’ Notice of appeal is incompetent and therefore impotent to initiate and or sustain this appeal. The Law he submitted is trite that every appeal from an interlocutory decision of the High Court to the Court of Appeal must be with Leave of the High Court or the Court of Appeal in compliance with Sections 14(1) and 24(1) (2) (a) of the Court of Appeal Act 2011; Sections 242 (1) and 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Also ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT. 1426) page 168 at 189. The Law he also stated that where a statute stipulates a procedure, failure or neglect to comply with such

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procedure invalidates every step taken and every process initiated. See CHIEF SUNDAY EVONG V. OBONO OBONO & ASSOCIATES (2012) 6 NWLR (PT. 1296) page 388 at 404.

Since the Appellants did not seek and obtain the requisite Leave of either the Lower Court or this esteemed Court as required by Law before the notice was filed, same is consequently invalid and cannot suffice to constitute a foundation for this appeal as there is no valid appeal. He urged the Court to so hold and resolve same in their favour.

On another issue, Learned Respondent Counsel submitted that a party cannot raise two issues or complaints in a single ground of appeal. Also that any ground of appeal which raises two distinct and incompatible issues or complaints is incompetent and liable to be struck-out. Ground one of the grounds of appeal in this appeal shows that the Appellant raised the issue of certification (Order 8 Rule 2 (3)) and issue of service of the originating process (Order 12 Rule 2) and this makes the said ground of appeal incompetent and he urged the Court to strike out same.
See NWADIKE V. IBEKWE (1989) 4 NWLR (PT. 67) 718 at 747; ALHAJI ADO SULEIMAN KACHIA

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VS. ALHAJI AMIRU YAZID (2007) 17 NWLR (PT. 742) page 431 at 460. Issues distilled from incompetent ground of appeal are also incompetent. See TINUBU VS. I. M. B. SECURITIES LTD. (2001) 16 NWLR (PT. 740) at 691.

Arguing further Learned Counsel stated that a brief filed when a notice of appeal has not been filed as in this case amounts to a nullity. SeeNIWA VS. SPDCN LTD. (2011) 6 NWLR (PT. 1244) 618. Consequently, the notice of appeal together with ground one of the grounds of appeal are invalid. The purported Appellants brief anchored on same ought to be struck out otherwise it would amount to placing something on nothing. See ODUNKWE VS. OFOMATA (2010) 18 NWLR (PT. 1225) 404 at 440.

On the basis of the above, he urged the Court to uphold the Preliminary Objection, strike out ground one of the grounds of appeal together with the whole notice of appeal and the Appellants brief predicated thereon and dismiss the appeal.
Turning to the main appeal in the event that the Preliminary Objection is not upheld Learned Respondent Counsel then formulated one issue for determination:
“Whether having regards to the provisions of Order 8 Rules 2

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(3) and 4 and Order 12 Rule 2 of the High Court of Cross River State (Civil Procedure) Rules 2008 and in view of the unreported decision of this esteemed Court of Appeal No. CA/C/174/2009 between ONUN OTU ECHU IGIRIGA VS. ELDER EFFIOM OKON BASSEY & 7 ORS the Lower Court was right to dismiss the Appellants Preliminary Objection?” (Ground One).

While answering the above issue in the affirmative, Learned Counsel submitted that the purported failure and/or neglect of the Registrar of the High Court of Cross River State to certify the Writ of Summons filed on the 23/1/14 and to serve the duly certified copy of the said Writ on the Appellants in accordance with Order 8 Rule 2 (3), Order 8 Rules 4 and Order 12 Rule 2 of the Cross River State (Civil Procedure) Rules 2008 cannot by any means howsoever suffice to impeach the validity of the Writ of Summons and/or divest the Court of the requisite jurisdiction to entertain Suit No. HC/26/2014. See ANYANWOKO VS. OKOYE (2010) ALL FWLR (PT. 515) 214 at 227.

The complaint of the Appellant is that the originating processes were not certified as required by the Rules before service was effected. On the

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other hand, the Learned Respondent’s Counsel contended that as the Writ of Summons is duly signed and sealed, same remains competent and the failure and/or neglect to certify it before service cannot and does not affect its validity to render the Respondent’s action incompetent and consequently to rob the Court of the requisite jurisdiction to entertain Same. See ONUN OTU ECHU IGIRIGA VS. ELDER EFFIONG OKON BASSEY & 7 ORS. (2013) LPELR – 20346 (CA). Failure to certify a Writ of Summons cannot invalidate it. The authority of IBAKU vs. EBINI (supra) does not apply to this case as the word “SHALL” does not in all cases connote mandatoriness. See CHIEF SUNDAY EVONG vs. OBONO OBONO & ASSOCIATES (2012) 6 NWLR (Pt. 1296) 388 at 399. Even the case of IGIRIGA (supra) does not also avail the Appellant because in that case, there was no issue of certification in Igiriga’s case.

Learned counsel stated that assuming but without conceding that the failure and/or neglect to certify the Writ can only suffice to invalidate it, he submitted that by the combined effect of Order 8 Rule 2 (3) Order 8 Rule 4 and Order 12 Rule 2 of the Rules, it is the duty of the

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Registrar to certify the originating process and arrange for service and not the Respondent. As a result the Respondent cannot be punished for the error, mistake and or omissions of Court officials. See FIDELITY BANK PLC vs. MONYE (2012) ALL FWLR (pt. 631) page 1430 and ANYANWOKO VS. OKOYE (2010) ALL FWLR (PT, 515) 214 at 233, R.T.T.T.C.T. & C.S. VS. ADINDU (2012) 2 NWLR (PT. 1284) 312 at 325.

Assuming further though not conceding that the Respondent is responsible for certification of the originating process before service, Order II Rules 1 (1) and (2) of the High Court (Civil Procedure) Rules 2008 enjoin the Court to treat anything done or left undone in commencing an action as a mere irregularity which if so treated does not vitiate the action. SeeSA’EED vs. YAKOWA (2013) 7 NWLR (PT, 1352) 124 at 145.

In the instant case according to counsel, no in Justice has been occasioned to the Appellants by the failure to certify the originating process. The Courts he submitted have shifted from the era of technicalities to doing substantial Justice. See U.T.C. NIG. LTD. vs. PAMOTEI (1999) 2 NWLR (pt. 103) 244 at 296. OLUFEAGBA VS. ABDURRAHEN (2010)

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ALL FWLR (PT. 512) 1033 at 1063; DUKE vs. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR (pt. 959) 130 at 142; TECHNIP vs. AIC LTD. (2016) 2 NWLR (pt. 1497) 421 at 443.

On the basis of the above, learned Respondent’s counsel then urged the Court to resolve this issue in their favour and finally to dismiss the appeal with substantial cost against the Appellants.

I shall and herein consider the preliminary objection of the Respondent in this appeal one way or the other before going into the merit of the substantive appeal. According to the Learned Respondent’s counsel, the Appellant is in breach of Section 14(1) of the Court of Appeal Act 2011 as no Leave of either the Lower Court or the Court of Appeal was sought and obtained before proceeding to file his Notice of Appeal challenging the interlocutory Ruling of the Lower Court, and as a result, the purported Notice of appeal filed on the 3/4/2014 is incompetent and not capable to sustain the appeal. This requirement of the Law is a sine qua non towards bringing a valid notice of appeal. It is a Rule of Court which must be obeyed or complied with, as they are not made for fun. In the case of SOLANKE vs.

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SOMEFUN (1974) 1 SC 141, Sowemimo JSC (as he then was) opined.
“Rules of Court are meant to be complied with…. Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker dispensation of Justice.”
See IBODO vs. ENAROFIA (1990) 5-7 SC 42; ANIA vs. OBABIOLORAN KOSI (1986) 2 NWLR (PT. 22) 16; OLUSESI V. OYELUSI (1986) 3 NWLR (pt. 31) 634; JOHN vs. BLAKK (1988) 1 NWLR (pt. 72) 648; GOVERNMENT OF IMO STATE v. GREECO CONSTRUCTION & ENGINEERING ASSOCIATES LTD. (1985) 3 NWLR (PT. 11) 71; DAMBAM vs. LELE (2000) 11 NWLR (pt. 678) 413; OFORKIRE & ANOR. VS. MADUIKE (2003) LPELR 2269 (SC). Failure of the Appellants to give the three days mandatory notice as required by Section 14(1) of the Court of Appeal Act 2011 makes their preliminary objection highly prejudicial to their case and liable to be struck-out as being incompetent, and I so hold. The reason being that it cannot suffice to constitute a foundation to this appeal as there is no valid appeal.

It is also the Learned

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Respondents case that the Appellant raised two issues from one ground of appeal i.e. issues of Certification (Order 8 Rule 2 (3) and issue of service of the originating summons – Order 12 Rule 2 of the Cross River State High Court (Civil Procedure) Rules 2008.

This Law is clear in Law that while a single issue may be formulated from several grounds of appeal, it is undesirable to split a ground of appeal into more than one issue. The Supreme Court in AGBATOBA VS. LAGOS STATE EXECUTIVE COUNSEL (1991) 6 SCNJ 1 at 12 per Karibi – Whyte JSC held thus:
This Court has consistently and in several decisions advised Counsel formulating issues for determination arising from grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The practice of splitting grounds of appeal is likely to confuse the consideration of the principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for

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determination.”
See alsoEGBE VS. ALHAJI & ORS. (1990) 1 NSCC (VOL. 21) (PT. 1) 306 at 332; LEEDO PRESIDENTIAL HOTEL LTD. v. B. O. N. NIG. LTD (1993) 1 NWLR (PT. 951) 250 at 267; OLADOSU BANIKOLE VS. IDOWU OLADELE & ANOR. (2010) LPELR – 3851 (CA).

Learned Appellant’s Counsel had contended in his reply brief of argument filed on the 7th April 2016 that the Appellants in that instant appeal did not require the Leave of either the trial Court or this Court to file a Notice of Appeal as the ground of appeal borders on Law. See Section 24(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
First of all is that this is an interlocutory appeal. Bring an interlocutory, the times ordered by the Rules or Act in which to appeal is severally reduced or limited to 14 days. If however there is an appeal within the 14 days and the ground of appeal involves questions of Law alone, the appeal is competent as the constitution enables Appellant to appeal as of right in such circumstances. See Section 241(a) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). See MOHAMMED VS. OLAWUNMI (1990) NWLR (PT.

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133) 458. In a considered Ruling which is being appealed against the trial Court had concluded as follows:
“In the light of the foregoing, the Preliminary Objection of Counsel for the Defendants is according over-ruled”.

The above shows that the Plaintiffs (Respondents) case had not proceeded to hearing much less being heard to finality. In other words, the appeal is basically interlocutory and against the Ruling of the Court in exercise of its discretionary power. It is not final decision of the Court covered by the constitutional provision of Section 241(1) of the 1999 Constitution (as amended).

It is trite that for an appeal to lie as of right, it must be against a final Judgment of a Court or Tribunal otherwise Leave will be required to file the notice of appeal. See UNION BANK OF NIGERIA VS. SOGUNRO & ORS. (2006) 10-11 SCM 393.

Similarly, it is trite that where Leave is required, failure to seek and obtain such Leave before filing the appeal will render such an appeal incompetent and liable to be struck-out. See UKPONG & ANOR. VS. COMMISSIONER FOR FINANCE, ECONOMIC DEVLEOPMENT & ANOR. (2006) 12 SCM (PT. 2) 460

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(2006) 28 NSCQR 508 at 529. In this case, the Supreme Court held that:
“Where an appeal is to be with Leave but none was obtained the condition precedent for the validity of such an appeal has not been fulfilled and as a result, the appeal is, in Law said to be incompetent and the Appellant Court is in consequence without jurisdiction to entertain same.”

It is now firmly settled that any ground of fact or mixed Law and fact in an interlocutory appeal will be incompetent except the required prior Leave of either the trial Court or of the Appellant Court be sought and obtained. Indeed, this is the essence and intendment of Section 241(1)(b), 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). See UNION BANK OF NIGERIA PLC VS. OLUSOJU SOGUNRO & 2 ORS. (supra).
It is very clear that from the record and grounds of appeal filed in this appeal, that Leave of the Court was required to file the said notice. There is nothing on record to show that Leave of Court was sought and obtained before the appeal was filed. In the result, the notice of appeal filed to initiate this appeal is fundamentally defective and

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incompetent and it is liable to be struck-out and is hereby struck-out.

Once the notice of appeal in an appeal is incompetent, it means that there is no appeal at all in existence. And the appellate Court will not be competent to entertain the appeal based on an incompetent notice and grounds of appeal. The default on the part of the Appellant in respect of the above conditions means that there is no competent appeal before this Court and I so hold. See H.D.P. VS. INEC & ORS. (2008) LPELR – 4236 (CA).

On the basis of the above, I hold that the instant appeal before this Court is not competent and according to the Learned Respondent’s Counsel it cannot sustain the appeal.
From my consideration of the issues raised in the Preliminary Objection, I hereby come to the conclusion that the said Preliminary Objection is upheld as being meritorious. This, therefore, underscores a clear need to invoke in relation thereto the maxim. “Interest rei republicae ut sit finis litum” – it is in the interest of Justice that there must be an end to litigation. See ADIGUN VS. A-G OYO STATE (NO. 2) (1987) 2 NWLR (PT. 56) 197 at 231; BELLO AKAMBI V. MOMODU

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ALAO & ANOR. (1989) 3 NWLR (PT. 108) 118 at 140.

Having upheld the Preliminary Objection, and in consequence of that I shall and hereby strike out ground one of the grounds of appeal together with the grounds of appeal and the Appellants brief predicated on same.
The appeal is hereby dismissed for lacking in merit, and the Judgment of the Lower Court is hereby affirmed.

Other Citations: (2016)LCN/8782(CA)