⦿ CASE SUMMARY OF:
Eshiet v. Effiong & Ors (2018) – CA
by PipAr Chima
Court of Appeal
⦿ AREA(S) OF LAW
Rules of Court
Motion on notice
⦿ NOTABLE DICTA
* APPELLANT MUST SUCCEED ON STRENGTH OF HIS OWN CASE
But that notwithstanding, it must be borne in mind that an Appellant does not need the support of the Respondent to win his own appeal. He must succeed or fail, on the strength of his own brief and his own case. – Jonah Adah, JCA. Eshiet v. Effiong (2018)
* MEMORANDUM OF APPEARANCE MUST BE SERVED
The word “shall” used here is a word of command. A peremptory command that must be carried out. It follows that the requirement of the law is for a Respondent served with originating processes to file a memorandum of appearance. – Jonah Adah, JCA. Eshiet v. Effiong (2018)
* INCOMPETENT PARTY CANNOT FILE APPLICATION
A party who is not competently before the Court is incapable of filing applications. The incompetence of the application fatally affected the ruling of the trial Court appealed against. – SAULAWA, JCA. Eshiet v. Effiong (2018)
Chief Ibok Eshiet
1. Elder Peter Okon Effiong
2. Nsit Atai Traditional Rulers Council
3. The Commissioner For Local Government and Chieftaincy Affairs
4. Attorney General, Akwa Ibom State
5. Governor Of Akwa Ibom State
⦿ LEAD JUDGEMENT DELIVERED BY:
Stephen Jonah Adah JCA
* FOR THE APPELLANT
– Mfonobong Udo-Inyang, Esq.
* FOR THE RESPONDENT
⦿ CASE HISTORY
The Appellant (the Plaintiff at Trial Court) took out a writ of summons of the Court below against the Respondents on 24th day of May, 2012. The reliefs claimed by the Appellant as shown in the endorsement on the writ and the statement of claim are as follows:
i. A DECLARATION that the Plaintiff is the authentic Village Head elect of Ikot Obong Village in Nsit Atai Local Government Area of Akwa Ibom State having been formally elected on Monday, 9th day of January, 2012 in conformity with their custom and traditions with the active participation and in the presence of all indigenes of Ikot Obong Village in Nsit Atai Local Government Area.
ii. A DECLARATION that the Plaintiff is the person entitled to be issued with the Certificate of Recognition as the authentic Village Head of Ikot Obong Village in Nsit Atai Local Government Area.
In addition to the writ of summons and other processes, the Appellant filed a motion on notice for interlocutory injunction. These processes were served on the Respondents. The 3rd to 5th Respondents’ Counsel entered an appearance on their behalf and filed a.counter affidavit to oppose the motion for interlocutory injunction.
The 1st Respondent in response filed a motion on notice to challenge the competence of the suit and the jurisdiction of the Court to entertain it.
The Court below heard that motion and upheld the grounds of the objection raised by the 1st Respondent and struck out the case of the Appellant.
⦿ ISSUE(S) & RESOLUTION
1. Whether the 1st Defendant/Respondent’s motion on notice dated 26th day of June, 2012 was competent process before the Court below.
i. On the authority of Order 9 Rule 1 and the decision of Ogbuagu, JSC in INAKOJU VS. ADELEKE (supra) filing of a memorandum of appearance or memorandum of conditional appearance is a sine qua non to the hearing of the Respondent’s motion in the instant case. The Court is the home of due process and justice is not justice if it is not justice according to law. Rules of Court being the syntax of adjudication must in that regard be respected and obeyed.
ii. From these decisions it is very much settled that Rules of Court must be followed to achieve justice. The 1st Respondent was served with the originating processes, if he is contending jurisdiction, the practice is for him to enter under protest which is what is known as conditional appearance before presenting his motion to challenge the action of the Appellant. It is therefore obvious that the Court below was in error for entertaining the motion of the 1st Respondent without the 1st Respondent entering an appearance in this case. Since the 1st Respondent was not properly before the Court, the motion filed by him on 26th day of June, 2012 was not competent. This being the case issue one is hereby resolved in favour of the Appellant.
2. Whether the lower Court was right to have struck out the Plaintiff/Appellant’s suit on the ground of the purported failure to meet condition precedent before filing the suit.
Since the motion was incompetent the ruling of the lower Court was given without jurisdiction and will be set aside.
3. Whether the mere writing that the ‘Writ is to be served within twelve (12) Calendar months… or if renewed, within six (6) Calendar months’ instead of the 6 months and 3 months for service and renewal respectively as written in the Rules constitutes enough ground to strike out the Plaintiff/Appellant’s Writ of Summons.
With the ruling in issue 1, this issue became academic.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
ORDER 9(1) HIGH COURT OF AKWA IBOM (CIVIL PROCEDURE) RULES 2009: prescribes for the FILING OF A MEMORANDUM OF APPEARANCE as follows: (1) A Defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the Registry the original and copy of a duly completed and signed memorandum of appearance as in Form 11 with such modifications or variations as circumstances may require.
⦿ REFERENCED (CASE)
* ENTRY OF APPEARANCE IS A FORMAL STEP
INAKOJU & ORS VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423, Ogbuagu, JSC, held that: “Entry of an appearance is said to be a formal step taken by a Defendant to an action after he has been served. See ADEGOKE MOTORS LTD. VS. D.J. ADESANYA & ANOR. (1989) 3 NWLR (PT. 109) 250 @ 292, 296 (1989) 5 SCNJ 80 @ 90 where it was held that entering of an appearance, is a technical expression and a formal step taken by a Defendant in civil proceedings. Therefore, a Defendant, shall before he is heard enter appearance and if he fails to do so, he is not entitled to be heard by the Court”.
* RULES OF COURT MUST BE OBEYED
OFORKIRE VS. MADUIKE ORS. (2003) LPELR – 2269 (SC) held that: “It is elementary law that rules of Court must be obeyed or complied with, as they are not made for fun.”
* RULES OF COURT ARE MEANT TO BE OBEYED
In SOLANKE VS. 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 administration of justice.”
⦿ REFERENCED (OTHERS)
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