In The Supreme Court of Nigeria
On Friday, th 6th day of July 1990
SC 111/1988
Between
Obianwuna Ogbuanyinya ....... Appellants
Nwankwo Muokwue
Udedibia Chiezie
Andrew Obiechina
Michael Elobisi
Chiji Adibe
(for themselves and on behalf of the people of Umueri, Ogbunike)
And
Obi Okudo ....... Respondents
Raphael Anyaegbunam
Jeremiah Okeakpu
(For themselves and on behalf of the people of Aboh Ogidi)
Judgment of the Court
Delivered by
Belgore. J.S.C.
I dismissed this appeal on 3oth April, 1990 and reserved the reasons for the judgment to today. I now give the reasons.
There was a suit dated 28th day of April, 1958 filed at Onitsha in the High Court of the former Eastern Region of Nigeria. It was given a writ of summons number O/71/58. The action was in a representative capacity with both parties representing their respective communities of Ogidi and Egbunike. The sum of £33:3:6d. was paid with the application for the writ of summons and a revenue collector's receipt was issued to the plaintiff. On 6th October, 1958, Obianwuna Ogbuanyinya (deceased, who is on the papers before us the 1st appellant) appeared in obedience, no doubt, to a writ of summons served on him and asked for pleadings which were ordered. On 8th February, 1965, on application by the plaintiffs, 2nd and 3rd plaintiffs were added to the suit. On 9th February, 1960, barely two years after the suit was filed, the 2nd, 3rd, 4th, 5th and 6th defendants were joined on the application of the defendants. The case was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka-Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka-Agu, J. (as he then was) delivered judgment, which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal. The Supreme Court set aside the judgment. and remitted it for trial de novo (see Ogbuanyinya & 5 Ors. v. Obi Okudo (1979) 9 S.C. 32).
When the matter came up at Onitsha for trial de novo, G.R.I. Egonu, S.A.N., for the defendants raised a preliminary objection as follows:
TAKE NOTICE that the defendants intend, at the hearing of this action, to rely upon the following preliminary objection notice whereof is hereby given to you, viz:-
That the above action is incompetent and it is not properly before the court.
TAKE NOTICE that the grounds of the said objection are as follows:
(1) That the action was not initiated or constituted by due process of law.
(2) That no Writ of Summons signed by a Judge of the then High Court of Eastern Nigeria or any other valid Writ of Summons was issued to commence the above action: or alternatively, there is no evidence of such a Writ of Summons.
(3) That the parties in the action were altered and there is no evidence of any Order of the court authorising the alterations.
Dated this 27th day of January, 1981.
(SGD) G. R. I EGONU, S.A.N.
COUNSEL AND SOLICITOR
FOR THE DEFENDANTS.
The defendant (now appellants) now appear to raise issue of competency with regard to whether a writ actually subsists or not. Order 2 rule 1, High Court Civil Procedure Rules of Eastern Region of Nigeria 1955 was being relied upon. It reads:
Every suit shall be commenced by a writ of summons signed by a Judge, magistrate or other officer empowered to sign summonses.
The submission by learned counsel for the appellant from the High Court through Court of Appeal to this court has been adumbrated on the proposition that there was no writ of summons in this suit and as such all proceedings in all the courts up to the Supreme Court judgment in suit SC. 13(1979 were a nullity. This to my mind is a very novel proposition. Clearly the respondents as plaintiff applied for issuance of a writ of summons and appropriate fee was paid for which a revenue collector's receipt was issued. Thereafter parties appeared and pleadings were ordered and finally filed. From 1958 to 1976 the status of the High Court of Eastern Region had changed remarkably due to political and administrative situations. Eastern Nigeria was occupied by a rebellious regime for almost three years, not to talk of independence in 1960 and republican Constitution of Eastern Nigeria 1963. The Military Regime came in 1966 and remained up to 1979. During the same periods, Eastern Nigeria had ceased to exist and new states were created. Onitsha is now part of Anambra State. Several changes thus took place but the most trying period was the civil war years when several documents got destroyed and/or were missing. The writ of summons could not be found. But missing writ of summons does not manifest that it was not issued. All a plaintiff had to do was to apply for a writ of summons in accordance with Rule 2 Order 1 and pay the prescribed fee. This, the respondents did. Unless a writ of summons was issued the other side could not appear for it is the writ that invites the defendant to court. Surely parties who appeared in court and asked for pleadings and finally filed one could not be said to have received no writ of summons. But for the judgment of Supreme Court which decided the all-important question of jurisdiction of the trial Judge there was no challenge to the validity of the trial. Now what the appellant resorted to in the trial de novo which has unfortunately protracted the hearing of substantive issue is nothing but delay tactic. Would the court of trial declare a nullity what this court tried and remitted for trial de novo? It seems this precisely is what the appellants indirectly want to achieve. The appearance of the par-ties in the trial court, the filing of their pleadings and offering of testimonies manifest regularity as I cannot imagine a situation where a party not invited via a writ of summons would appear in court to file pleadings or apply to be joined. Evidence Act says:
149(1) When any judicial or official act is shown to have been been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
In the face of substantial compliance with steps normally taken if a suit exists, as the filing of pleadings, joinder of parties etc, it is presumed a writ of summons signed by a Judge in compliance with Order 2 Rule 1 exists. It is however to be pointed out that the duty to issue a writ of summons is not that of the plaintiff. The plaintiff, having applied for a writ of summons on payment of appropriate fees leaves the rest to the court. His appearance in court and the presence of defendants suffice to arrive at the presumption envisaged in 5.149(1) Evidence Act (supra). The burden of proof of a particular fact, in this case, that there was no writ issued is on the person that makes the allegation - Section 138 Evidence Act. Against this allegation of non-issuance of writ of summons are acts of the parties - appearance in court, filing of pleadings, moving the court to join additional defendants. These acts are consistent with those of an existing suit: and notice of the suit is the service on the defendants of writ of summons. The appellants despite the long journey on this trivial matter have not explained how they decided to go to court and participate in the suit without being served any writ of summons. The burden is on them to explain how they came to court without service of a writ on them.
It is true, as submitted by counsel for the appellants, that competency is fundamental to the trial of a case by court, but he has not up to now explained how his clients appeared other than by way of being served with a writ of summons. The burden is on his clients. The cases cited, to wit, Madukolu & Ors. v. Nkemdilim (1962)1 All N.L.R. 587, 589, 595; Ajao v. Sonola & Anor. (1973) 5 S.C. 119, 120, 121; Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & Anor. (1986)6 S.C. 35, 50,51,52; (1986)3 N.W.L.R. (I't.30) 617 and Management Enterprises Ltd. and Anor. v. Jonathan Otusanya (1987)2 N.W.L.R. (Pt.55) 179, at 188 are of great authorities on competency. They, however, have no bearing on this case in hand. It would appear the device behind the preliminary objection subject of appeal now before this court is an indirect way of asking the High Court at Onitsha declare invalid the decision of this court in suit no. SG 13/1979 because the decision was based on a suit that never existed. This appeal has not served well the cause of justice. If it is meant to help develop the law so as to fish out the effect of the missing writ of summons it could unwittingly defeat justice by sheer length of the delay in hearing the substantive issue.
For the above reasons, I dismissed the appeal on 30th day of April, 1990 with N500.00 costs to the respondents.
Judgment delivered by
Nnamani. J.S.C.
On 30th April, 1990, this appeal came before this Court. After hearing learned counsel to the parties, and having previously read the record of proceedings, I dismissed it. I indicated that I would give my reasons for this judgment today. I now do so.
Before now, I saw the draft of the reasons for judgment just delivered by my learned brother, Belgore, J.S.C. I entirely agree with them and adopt them as my own.
It is not disputed that this suit was filed in the Onitsha Judicial Division of the former High Court of Eastern Nigeria on 28th April, 1958 as Suit No.0/71/58. Nor is it disputed that after a chequered history, including its being pending during the Nigerian Civil War, Nnaemeka-Agu, J. (as he then was) heard the matter and delivered judgment in 1977. On the date of the judgment, Nnaemeka, J. was functus officio as he had been appointed a Justice of the then Federal Court of Appeal. The matter then went up to the Supreme Court which declared the said judgment null and void and sent the case back to the Onitsha High Court for trial de novo. See (1979)6-9 S.C. 32. On resumption of the retrial at the Onitsha Court, learned Senior Advocate, Mr. Egonu raised a preliminary objection in effect contending that the suit was not commenced with a writ of summons. This objection was refused by the High Court. An appeal against that refusal to the Court of Appeal Enugu was dismissed hence the appeal to this Court.
Before considering the issues raised in this appeal, it is pertinent to mention that most of the documents in this suit were lost during the Civil War. It is not in dispute that by Order 2 Rule 1 of the High Court Rules of Eastern Nigeria every suit shall be commenced by a writ of summons signed by a Judge, Magistrate or other officer empowered to sign summons. By Order 33 Rule 1, written pleadings shall be ordered in all matter by the Court, unless the Court considers in any proceedings suit that written pleadings are unnecessary. What one has to decide is whether this suit which went from the High Court Onitsha, through the Court of Appeal to the Supreme Court and back was not started with a writ of summons duly signed by a Judge. Learned Senior Advocate Mr. Egonu, contended that the onus is on the respondent to show such a writ and failure to show such a writ meant that all the proceedings in this matter are a nullity. Learned counsel to the respondents, Mr. Ezeuko, contented that the onus was rather on the appellants to show that there was no such writ.
There are some paragraphs of the affidavit sworn by one Raphael Anyaegbunam in answer to the preliminary objection. In paragraph 7, 10, 12 and 17 he averred as follows:-
7. That a photocopy of the Revenue Collector's receipt is hereto annexed
10. That on the 6th of October, 1958 the 1st defendant appeared in Court in obedience to the writ and pleadings were ordered in the above matter ..
12. That annexed hereto and marked Exhibit "C" is the Affidavit of Chuba Ikpeazu as he then was Counsel to the defendants admitting that pleadings were ordered in the matter.
17. That on the 9th of February 1990 on the application of the Defendants the 2nd, 3rd, 4th, 5th and 6th Defendants were joined to the existing Defendant on record .
The first point that comes out of this affidavit is that the plaintiffs paid the necessary fees for the issuance of a writ. Having done that can it be said that it was still their duty to ensure that the writ of summons was signed by a Judge? I am also of the view that that suit appears to have been properly commenced in the Onitsha High Court when they paid the necessary court fees. See Mufutau Atawode & Ors. v. M.A. Semoh (1959)4 F.S.C.27; (1959) SCNLR 91, per Ademola, C.J.F. at page 29.
The next issue is that on appearance in Court the 1st defendant, represented then by an eminent lawyer Chuba Ikpeazu (as he then was), asked for pleadings. The question, which arises, is whether the defendant asked for pleadings in a suit in which no writ of summons had been served on him? The answer by learned Senior Advocate that the Defendant may have appeared pursuant to a hearing notice can hardly solve the problem. Could his eminent counsel have asked for pleadings on a hearing notice?
Then appearing from the affidavit is the averment that 2nd, 3rd, 4th, 5th and 6th defendants appeared to join the suit as defendants. Could they also be joining a suit in respect of which no writ of summons was served?
In my view the situation is that a suit which was properly commenced is being challenged on the ground that there was no writ of summons duly signed by a Judge. So many steps have been taken to make this objection belated in the extreme. After the filing of the suit, an eminent counsel asked for pleadings. Eminent Judges took the matter before the Nigerian Civil War. No one noticed the defective writ. The question of the defective nonexistent writ did not arise throughout the proceedings in the High Court before Nnaemeka-Agu, J. Although it was raised as an alternative ground in the first appeal, it was neither argued there nor in the Supreme Court. Then there was the joining of the suit by the defendants 2,3,4,5 and 6. This to my mind is a proper case in which the presumption of regularity must be upheld. It was for the appellants to rebut it and show that no writ duly signed by a Judge was issued. They failed to rebut the presumption. These were the reasons for my dismissal of this appeal on 30/4/90 as earlier mentioned. One can only hope that this tactical skirmish having now ended, this 1958 case can proceed to trial for there must be an end to litigation.
Judgment delivered by
Karibi-Whyte. J.S.C.
On the 30th April, 1990, I dismissed the appeal of the appellants and indicated that I will give my reasons for doing so today. This I now proceed to do.
I have read the judgment of my learned brother, S.M.A. Belgore, J.S.C. in this appeal. I agree with it.
This appeal raises two points of law of fundamental and crucial importance. First, it is whether the existence before the court of writ of summons initiating an action could be presumed from the circumstances surrounding the trial of the action? Secondly, on who lies the burden of proof that the action was not commenced by a writ of summons? The crux of the contention of the appellant before us is whether where there is no evidence before the court that the action of the plaintiffs/respondents was initiated or constituted by due process of law, the court can presume the issuance of a writ of summons from the circumstances surrounding the trial.
General comments
The essential facts of this case are not in dispute. The appeal before us is the second journey of this case to this court.
On the 4th May, 1988, the Court of Appeal Division, sitting at Enugu dismissed the appeal to that court by the defendants against the ruling of the High Court of Onitsha, per Onwuamaegbu, J., dated the 11th June, 1986. The appeal was against the ruling in the preliminary objection that, (a) the substantive action was not initiated or constituted by due process of Law, (b) that no writ of summons signed by a Judge of the then High Court of Eastern Nigeria or any other writ of summons was issued to commence the action, or alternatively, there is no evidence of such a writ of summons was dismissed. In the affidavit sworn to by the 2nd plaintiff on behalf of the plaintiffs in objection to the preliminary objection it was claimed by averments in paragraphs 4, 6, 7, 8, 10, 11, 12, 13, 14, 17, 18, that the claim was filed on 27th August, 1958 and that a total sum of £33:3:6d was paid as court fees and receipt was duly issued; photocopy of which was exhibited as "Exhibit A." The number of the cause pursuant to the writ of summons issued was given as suit No.O/71/58. It was deposed that the deponent acted as the pointer to the service on 1st defendant of the writ of summons. It was also deposed that on 6th October, 1958, the 1st defendant appeared before the court in obedience to the writ of summons served on him and an Order for pleadings was made by the court. A copy of the hearing notice to this effect is exhibited as Exhibit B.
Also exhibited is the affidavit of Chuba Ikpeazu, Esqr. of Counsel deposing to the order of pleadings by the court. Both parties filed pleadings. Also exhibited as Exh.D. is the affidavit of 1st defendant admitting the order by the court of parties to file pleadings. The 2nd, 3rd, 4th, 5th and 6th defendants subsequently by application dated 9th February, 1960 were joined as defendants to the action. Exhibit Fis the affidavit of 5th defendant admitting the fact. It was deposed to in paragraphs 19 and 20 of the affidavit that
19. That my solicitors Messrs. A. I. Iguh as he then was and G.E. Ezeuko informed me and I verily believe them that the court files and several records were lost as a result of the last civil war.
20. That the said Messrs. A. I Iguh and G.E. Ezeuko informed me and I verily believe them that before the trial started before Nnaemeka-Agu, J. they and the then counsel for the defendants Mr. Chike Ofodile, S.A.N., met and verified the relevant papers and found them to be correct.
The affidavit of defendant is not among the papers copied, but the trial Judge observed in his ruling that the counter-affidavit of the 5th defendant merely denied paragraph 8 of the affidavit of the 2nd plaintiff; that the writ of summons was given the number 0/71/58, duly signed by the Judge and was served on the 1st defendant, 2nd plaintiff acting as a pointer. Thus the issue raised on the affidavits is whether there was a suit No.0/71/58 initiated by a writ of summons signed by a Judge, which writ of summons was served on the 1st defendant 2nd plaintiff acting as the pointer. The trial Judge tried to resolve the in the affidavits by taking oral evidence, and came to the conclusion that there is a suit No. O/71/58, and that the 2nd plaintiff acted as pointer to service on the 1st defendant.
The first trial
It is material to refer to the finding of the learned Judge on perusal of the record of the former proceedings in the High Court of this action. He said,
The record of the former proceedings in the High Court shows that the claim prepared and signed by A. Obi-Okoye, plaintiff's solicitor, is dated the 28th April, 1958, but the receipt for the fees (Exh. A in the plaintiff's affidavit) shows that the claim was not filed until the 27th August, 1958. The earliest endorsement seen on the court's file was made on 30/4/73 when the case came before Aghakoba, J. What transpired between 28th April, 1958 (when the case was filed and the 29th April, 1974, a period of 16 years is not available. A letter dated 31st January, 1973 in page 2 of the courts file and written by B. D. 0. Anyaegbunam, Esqr. a Solicitor for the plaintiffs listed 12 documents forwarded to the Higher Registrar of this court to enable the suit be fixed for mention. The endorsement on that letter by the Registrar, stated that the case came before Justice Egbuna for trial de novo after Justice Kazim had gone but that hearing did not commence before Onitsha was vacated in 1968 (i.e. during the Civil War.) (italics mine).
It seems to me from this endorsement that it could be legitimately inferred of the action which had commenced in the High Court before Kazim, J, was discontinued and had to be resumed de novo before Egbuna, J. This was because Onitsha was vacated and Kazim, J., left as a result of the disorganisation of normal civil activities because of the Civil War. Although the endorsement in the record of proceedings referred to is silent on what transpired between 27th August, 1958 when the claim was filed and 25th June, 1976 when the parties were shown to have appeared before Nnaemeka-Agu, J., it is legitimate to infer that the action was commenced, but trial was interrupted by the events of the Civil War. This inference is supported by the uncontradicted averments in paragraph 19 of the affidavit in opposition to the preliminary objection, that the court files and several records were lost as a result of the last civil war.
It was averred in paragraph 20 of the said affidavit that the trial of the action was resumed in 1976 before Nnaemeka-Agu, J., on the strength of the papers, found, verified and accepted as correct by counsel to both parties. This exercise was predicated by the opening of the file based on a letter from B.D.O. Anyaegbunam, Esquire, former counsel to the plaintiffs and submitted to the Higher Registrar of the High Court, in which he submitted 12 documents on which was relied to reopen the case.
Nnaemeka-Agu, J. (As he then was), tried the case on the papers before him and granted the claim of the plaintiffs. Defendants appealed against the judgment. It is the additional grounds of appeal filed against the judgment which has continued to feature in this case. It reads-
1(a) That the judgment is a nullity as it was delivered without jurisdiction.
(b) That the whole proceedings in the Onitsha High Court Suit No.O/7/58 are nullity as the suit was not constituted by due process of Law.
On appeal, counsel prayed the court to rule on the first ground 1(a) before he could argue the other grounds. The Court of Appeal ruled against him. There was therefore a further appeal to the Supreme Court, on the issue. The Supreme Court considering the said ground 1(a) allowed the appeal, set aside the judgment of the Court of Appeal and of the High Court, Onitsha, for trial de novo. This can be regarded as the end of the first journey.
The hearing de novo
This second trial was before Onwuamaegbu, J. I have already set out in the general comments the objection, the relevant part of the averments of the affidavit opposing the objection and the history of the case from the application for filing of the writ of summons to the hearing of the action by Nnaemeka-Agu, J. (as he then was) now of this court, and the decision of this court that the trial Judge gave judgment without jurisdiction and that the cause be heard de novo.
On the relisting of the cause for hearing counsel to the defendants in their application dated 27th January, 1981 raised the preliminary objection subject-matter of the appeal before us. In dismissing the preliminary objection the trial Judge observed that a defendant who was not served with a writ of summons but who had become aware of the claim may appear "under protest" or he may make a conditional appearance and argue that he was never served any writ or (if he was served one) that the writ of summons served on him was invalid not having been signed by the Judge or Registrar of the court. Specifically adverting to the facts of this case he declared,
Where, however, a defendant appears in court without any conditions, to answer to the claim being made against him, he is deemed, in law to have been properly served and he cannot raise the issue of the validity of the writ or his service thereof unless some error or fraud is manifest. This in effect, means that an unconditional appearance in court to answer to a claim is prima facie proof of the issue of a valid writ of summons and of proper service thereof on the defendant.
The learned trial Judge went on to say that a defect in a writ of summons or the mode of service thereof is a mere technical irregularity which is cured by an unconditional appearance of the defendant to answer the writ of summons.
The learned trial Judge found that there was no direct proof that the writ of summons in the action was signed by a Judge. He however found that the suit was filed on the 27th August, 1958, and the fee of £33.3. 6d. (i.e. N66.35k) was paid on receipt No. E204948. The learned judge observed that there was no presumption that payment of summons fees amounted to proof that summons was issued or signed by a Judge. He however admitted that absence of direct evidence of a summons signed by a judge did not negate proof by circumstantial evidence to that effect.
The learned Judge referred to the implication for the order of pleadings order Order 33 rule 1 of the Rules of the High Court, and stated that the order is made on the basis of a suit as defined in Section 2 of the High Court Law. Accordingly the onus is on the party who asserts to the contrary to prove.
The learned trial Judge referred to the conduct of the defendants in defending the action without protesting to the fact that they were not served with a writ of summons or about any summons being issued or signed by a Judge. He observed as follows
I am of the firm view that it is now too late in the day to raise that issue. Even if it be assumed (without being conceded) that no writ was issued or that it was not signed by a Judge, the defendants should have appeared in court "under protest" or should have made their appearance conditional and raised the irregularity at the earliest opportunity.
In rejecting the preliminary objection, the learned Judge held,
The evidence before me has shown that they made unconditional appearance, participated fully by filing their statement of defence and several amendments thereto and other documents, pursued the hearing to the end and up to the Court of Appeal and in the Supreme Court. The evidence, if I may borrow the language of exponents of the doctrine of part-performance in conveying, (conveyancing) is specifically unequivocally referable to the issuing and service of a valid writ of summons.
It seems to me that the learned Judge relied on the view that there was no writ of summons or if any, was not signed by a Judge to initiate the action, and that that was an irregularity which could be cured by unconditional appearance to the action. Again that having taken steps in the action by entering unconditional appearance the fact of the competency of the action cannot be questioned.
As I have already stated the defendants appealed to the Court of Appeal.
In The Court of Appeal
It was contended that the competency of the action was fundamental to the adjudication. The issue here is that there was no writ of summons in the court's file or any evidence that a writ of summons was issued to commence the suit. In the circumstance the court could not embark on the hearing of the action. The question of entering appearance under protest or conditional appearance did not therefore arise.
It was submitted that the preliminary objection did not raise any question of defect in the writ of summons. The filing of pleadings it was admitted is a step in the action. But when no writ of summons was issued, such step in the action cannot preclude the questioning of the validity of the action. The failure to issue a valid writ of summons was not a mere irregularity but a fatal and fundamental defect going to the root of the whole action.
Counsel rejected as inapplicable the doctrine of part-performance and estoppel invoked by the learned trial Judge.
Learned counsel to the plaintiffs/respondents conceded the proposition that the competency of an action is fundamental to the adjudicating process. He however, submitted that the authorities relied upon are not applicable to the facts of this case. Counsel referred to the uncontradicted f