M N. I. Emori, Esq. V. Hon. Egwu Arong Egwu & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal aganist the Ruling /Decision of the High Court of Cross River State Calabar in Suit No. HC/383/2006 delivered on the 16th April, 2OO7 .

The facts leading to this matter on appeal is that the Appellant , a Legal Practitioner with his office at No. 16 Target Rood, Calabar, Cross River State was engaged to offer legal services to the benefit of the Ibiae Oil Palm Estate by the management of the Estate owned by the Cross River State Ministry of Agriculture & Natural Resources to do the following to wit:

1. Conduct their defence in Suit No. HK/18/2003. ENGR. ONDA IZU ONDA, V. CHIET EKU’ ENANG & 5 ORS;
2. Do a reaction by way of correspondence to the allegations of one Mr. Arikpo Ojah lvere’s Solicitor’s letter;
3. Conduct their defence in Suit No. HK/23/2004; MR. ARIKPO OJAH IVERE V. CHIEF EKUI ENANG & 7 ORS;
4. Perfect the documentation of the society at the Cooperative Society Department, Calabar

After perfecting the above instructions, the Appellant was partly paid by the Respondents leaving a balance of N905,000.00

which has remained unpaid despite about 4 letters of repeated demand for same.

Upon its refusal to defray the balance, the Appellant took out a writ of summons dated 18th October, 2006 to recover some and other ancillary Claims. After service on them, the Respondent caused a memorandum of Appearance to be filed on their behalf on the 25th October,2006 by their Counsel, Jumbo O. Odey, Esq. of Liberation Chambers, 39, Barracks Rood, Calabar.

Upon receipt of the said memorandum of Appearance, the Appellant filed a Motion on Notice on the 26th October seeking Leave of Court to join the Ministry of Agriculture & Natural Resources as 3rd Defendant and for Leave to amend the statement of Claim and deem same as properly filed and served. On the 27th October, 2006, the 2nd Respondent caused another memorandum of Appearance to be filed on his own sole behalf by Chief E E. Ndiya & Associates, No. 9 White House Street, Calabar and also a Notice of Preliminary objection urging the Court to dismiss the suit on Grounds of Law as the 2nd Respondent has never had any dealing whatsoever ever with the Appellant.

?Also on the 15th day November,2006,the 1st

Respondent through his counsel Barr. okey brought his own Preliminary Objection to have the suit struck-out because the 2nd Respondent was improperly joined in the suit. All the Notices of Preliminary Objection were without accompanying Affidavits.

However, instead of taking the Motion for joinder and Amendment first the Learned trial Judges elected to take the Preliminary Objections jointly.

In his Ruling of 19th March 2OO7 but read on the 16th April 2007 due to the JUSUN strike, his Lordship found that the Respondents were not necessary parties to the suit and thereby struck-them out and also the suit. He also awarded a cost of N5,OOO.O0 each to the Respondents against the Appellant.

Aggrieved by the said Ruling, ,the Appellant has appealed the Ruling with five Grounds of Appeal filed on the 25th day of April, 2007.

The Appellant distilled four issues for determination from the five Grounds of Appeal:

1. “Whether the Learned trial Judge was not wrong when his lordship elected to first take the Preliminary Objections meant to terminate the suit in limine rather than first take the Motion for joinder and Amendment meant to

build the suit. (Distilled from Grounds l & 2).