➥ CASE SUMMARY OF:
M.N.I. Emori, Esq. v. Hon. Egwu Arong Egwu & Anor (2016) – CA
by PipAr Chima
Court of Appeal – CA/C/259/2013
➥ JUDGEMENT DELIVERED ON:
27th Day Of January, 2016
➥ AREA(S) OF LAW
Motion on notice;
➥ NOTABLE DICTA
⦿ APPELLANT MUST SUCCEED ON ITS OWN BRIEF – WHERE RESPONDENT FILED NO BRIEF
An issue may then be raised as to whether the non-filing of the Respondent’s Brief of Argument will make the Appellants appeal to succeed. All the some, the non-filing of the Brief of Argument in respect of this appeal by the Respondent to the issues ventilated by the Appellant in his Brief of Argument does not mean that it is a work-over for the Appellant. The Appellant still has to justify the appeal against the judgment or decision of the Learned trial Judge based on the strength of his case as borne and by the Records of appeal in this matter. The failure of a Respondent to file a reply Brief is immaterial. This is because an Appellant will succeed on the strength of his own case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant must succeed or fall on his own Brief. – P.O. Elechi, JCA.
⦿ ASSESSING COSTS
Assessment of the amount allowed in terms of the award of costs is the responsibility of the Court who determines what reasonable costs in the circumstances are. And when the Court in exercise of its discretion orders the costs payable and does so without being capricious id est in the sense that it is ordered in honest exercise of his discretion. – P.O. Elechi, JCA.
M.N.I. Emori, Esq. (Practising under the name and style of M. N. I. EMORI & CO. Nkanu Emori Chambers)
1. Hon. Egwu Arong Egwu (Chairman, Council and interim Manager, Ibiae Oil Palm Estate, Biase Local Government Area)
2. Chief E. B. Edem (Co-ordinator, Cross River State small-holder scheme on Cocoa, Oil Palm and cashew , Plantations, Ministry of Agriculture & Natural Resources cum General Overseer of the Management of Ibiae Oil Palm Estate)
➥ LEAD JUDGEMENT DELIVERED BY:
Paul Obi Elechi, J.C.A.
⦿ FOR THE APPELLANT
M.N.I. Emori, Esq.
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
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.
After perfecting the instructions given to him, 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.
After preliminary objection that was filed, 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 N5,000.00 each to the Respondents against the Appellant.
Aggrieved by the said Ruling, the Appellant has appealed.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED, IN PART]
I. Whether the Learned trial Judge was not wrong when he refused to hear the Motion for joinder and Amendment, yet in considering the Preliminary Objection, he veered off course to comment on the merit of the said Motion which was not under consideration and then proceeded to refuse it without hearing the Appellant on it.
RULING: IN APPELLANT’S FAVOUR.
I.A. In the instant case, the Learned trial Judge instead of first taking the Motion for joinder and Amendment that was meant to build up the suit, he elected to take the preliminary objections of the 1st and 2nd Respondents based on the jurisdiction of the Court meant to terminate the suit in limine. This was against the decision of the Supreme Court in MOBIL PRODUCING NIGERIA UNLIMITED V. NONOKPO & ANOR (supra). This means that as of the 19th March,2007 when a Ruling on this matter was delivered, the Appellant’s Motion for joinder and Amendment dated 26th october, 2006 and file same date was still not moved and yet the Learned trial Judge without hearing the Appellant on the said application went out of his way to make some comments on the merit of the said Motion and refused it. It is on the basis of that, that I hereby agree with the Appellant’s submission that the Learned trial Judge was wrong by so doing.
II. Whether the Learned trial Judge was not wrong when he held that from the facts averred to by the Appellant in his Statement of Claim, the Respondents were not necessary parties to the suit.
RULING: IN APPELLANT’S FAVOUR.
II.A. From the nature of the suit and the reliefs there is no iota of doubt in my mind that the Respondents are necessary parties in this suit because they would be directly or financially affected by the outcome of the judgment in this case. See GREEN V. GREEN (1987) NWLR (Pt. 61) 481, the Respondents are necessary parties because they are not only interested in the subject matter of the proceedings but they constitute those who in their absence, the proceedings could not be fairly dealt with.
III. Whether the Learned trial Judge was not wrong when his Lordship awarded a cost of N5,000.00 in favour of end of the Respondents to the cumulative effect of N10,000.00.
RULING: IN RESPONDENT’S FAVOUR.
III.A. The award of N5,OOO.OO each to the Respondents is not punitive after all costs are awarded for the purpose of meeting the legitimate expenses of the successful party, either, wholly or partially as the Court sees it.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)