⦿ CASE SUMMARY OF:
SUNDAY EDWIN ILOMUANYA v. PETER NWACHUKWU ILOMUANYA (2004) – CA
by PipAr-RAshid
⦿ LITE HOLDING
In demurrer application the Appellant need not file a statement of defence.
⦿AREA OF LAW
– Administrative Law
⦿ TAG(S)
– Administrative Law
– Demurrer
⦿ PARTIES
APPELLANTS
SUNDAY EDWIN ILOMUANYA
CYPRIAN MADUABUCHI ILOMUANYA
MRS. PHILOMENA ILOMUANYA
v.
RESPONDENT
PETER NWACHUKWU ILOMUANYA
⦿ CITATION
(2004) JELR 55208 (CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Fabiyi, JCA
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
AAA
⦿ FACT (as relating to the issues)
This appeal is against the interlocutory ruling dated 20th December, 2001 handed out by Nri- Ezedi J. sitting at the High Court of Justice, Ekwulobia, Anambra State of Nigeria. The learned trial Judge dismissed the defendants/appellants’ application, which was based on demurrer.
The respondent herein, as plaintiff at the lower court, filed his suit No. AG/69/2001 in which he claimed against the appellants herein and defendants at the lower court jointly and severally as follows: “(a) A declaration or an order holding that the plaintiff is the owner and in possession of the said compound or ‘Ngwulube Peter Nwachukwu Chukwuemeka Ilomuanya’ in accordance with Ekwulobia native law and custom. (b) A declaration that the plaintiff being the heir of late Peter Nwachukwu Chukwuemeka Ilomuanya, is entitled to the statutory right of occupancy to the ‘Ngwulu be Peter Nwachukwu Chukwuemeka Ilomuanya’ in accordance with Ekwulobia native law and custom on inheritance. N10,000,000.00 (ten million naira) damages for trespass. Perpetual injunction restraining the defendants, their servants, agents, and or privies from further trespass to the said plaintiff’s compound.”
In the amended statement of defence, the defendants denied some salient averments in the amended statement of claim. That is to say, that the defendants joined issues with the plaintiff on crucial facts. The matter then proceeded for hearing. The plaintiff/respondent testified as PW1 and was not cross-examined by the defendants/appellants’ counsel. It was at this point that the defendants/appellants filed their motion No. AG/118m/2001 based on demurrer.
The learned trial Judge heard submissions of both counsel for the parties. In a well considered ruling, the application predicated on demurrer was dismissed. The defendants felt unhappy with the said ruling and have appealed to this court.
⦿ ISSUE(S)
1. Having regard to the facts and circumstances of this case, was the trial court not right in holding that the provisions of Order 10, rule 1 of the High Court Rules of Anambra State, 1988/1991 are inapplicable?
2. Whether the trial court had jurisdiction to entertain or hear the respondent’s suit before it.
3. Was the learned High Court Judge be right to hold in its (sic) ruling that a gift donatio mortis causa as stipulated in section 137(2) of the Administration and Succession (Estate of Deceased Persons) Law, Revised Laws of Anambra State of Nigeria, 1991, Vol. 1, Cap. 4 is an issue of fact which can only be resolved when evidence is heard?
4. Was the trial court’s ruling on demurrer application ‘undelivered’ and occasioned miscarriage of justice? If undelivered, is defendants/appellants’ present appeal over an ‘undelivered ruling/decision’ proper or competent before this honourable appeal court?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED]
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. A clear reading and appreciation of the above quoted rule showsthat the plaintiff must have filed the statement of claim. It is agreed that a statement of claim was filed. The defendant shall not file a statement of defence. The appellants as defendants filed their statement of defence and had cause to even amend same. The facts in the statement of claim must be taken as admitted. The appellants in the amended statement of defence denied salient averments in the statement of claim and joined issues with the respondent. The facts established in the statement of claim must be such that even if admitted or established, the plaintiff will not be entitled to judgment. Not only that the appellants filed a statement of defence at the trial court and joined issues with the respondent, the respondent testified as PW1 before the appellants filed their application for demurrer. To my mind, Order 10, rule 1 is no longer applicable since it is a special proceeding. It was too late in the day to file such an application. The stage of the proceedings at the lower court when the motion for demurrer was filed had taken away the application from the ambit of Order 10, rule 1(1) of the High Court Rules, 1988.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. Issue of jurisdiction is to be determined from averments in the plaintiff’s statement of claim where pleadings have been filed. It is not based on averments in the statement of defence. The respondent claimed as the 1st son of his father under customary law of Ekwulobia. I cannot see how it can be seriously argued that the trial court has no jurisdiction.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. It is beyond dispute that for the gift having bearing with the principle in donatio mortis causa to have effect, it has to be proved by viva voce evidence from two credible witnesses of full age and understanding. One or both of such witnesses must belong to the family of the donor. There must be physical delivery to the donee or he must be put in possession where the subject-matter of the gift is immovable property. The learned trial Judge was quite right in holding that whether or not there was a gift donatio mortis causa or by other mode of effecting a gift, is an issue of fact which can only be resolved when evidence is heard. The appellants who should have raised the point in their defence jumped the gun. They tried to push it in through their demurrer application and crashed.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. At page 47 of the record of appeal, it is reflected that the ruling was signed by the trial Judge on 20-12-2001.
ii. The appellants have not shown that they suffered miscarriage of justice by reason thereof vide the dictate of section 294(5) of the 1999 Constitution.
⦿ REFERENCED
⦿ SOME PROVISION(S)
The meaning of demurrer in Black’s Law Dictionary, 5th Edition at pages 389-390 is here in point to educate the appellants. It goes as follows: “An allegation of a defendant, which admitting the matters of fact alleged by complaint or bill … to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer; or that, for some reason apparent on the fact of the complaint or bill, or on account of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be attendant thereon, the defendant ought not to be compelled to answer. The formal mode of disputing the sufficiency in law of the pleading of the other side. In effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken be true, yet their legal consequences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause. An assertion that complaint does not set forth a cause of action upon which relief can be granted, and it admits, for purpose of testing sufficiency of complaint, all properly pleaded facts, but not conclusions of law. Balsbaugh v. Rowland 447 Pa. 423, 290 A.2d 85, 87. A legal objection to the sufficiency of a pleading, attacking what appears on the face of the document. People v. Hale 232 Cal. App.2d 112, 42 Cal. Rptr. 533, 538.”
Order 10, rule 1(1) of the High Court Rules, 1988, it is apt to reproduce same as follows: “Where on receipt of the statement of claim, a defendant conceives that he has a good legal equitable defence to the suit, so that even if the allegations of the plaintiff were admitted, or established, the plaintiff would not be entitled to judgment against the defendant, instead of filing a statement of defence, may raise the legal defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.”
Section 137(2) of the Administration and Succession (Estate of Deceased Persons) Law, Cap. 4 (Revised Laws of Anambra State of Nigeria, 1991) which provides as follows:- “A gift of any property made by a person in contemplation of his death shall be valid and shall take effect on the occurrence of such death if such gift is (a) made in the presence of not less than two credible witnesses of full age and understanding, one or more of whom shall be members of the family to which the donor belongs and (b) is accompanied at the time it is made by physical delivery or the means of taking possession of the subject-matter thereof to the donee or the donee is put in possession where the subject-matter is immovable property.
⦿ RELEVANT CASE(S)
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
First of all, let me make the point that rules of court are meant to be obeyed and followed. They are to serve as guide so that each party will not run riot in prosecuting his case. – FABIYI JCA. Ilomuanya v. Ilomuanya (2004)
In demurrer proceedings, a defendant is neither permitted to file a statement of defence nor to rely on it. He is not allowed to tender evidence. He is taken to have accepted all the facts pleaded by the plaintiff as established but that he relies on some points of law to argue that notwithstanding those facts, the plaintiff must be denied a hearing. – FABIYI JCA. Ilomuanya v. Ilomuanya (2004)
An issue for determination must be formulated from a ground or grounds of appeal. – FABIYI JCA. Ilomuanya v. Ilomuanya (2004)
Jurisdiction is very vital in the realm of administration of justice. It is the bedrock of all trials. Refer to Madukolu v. Nkemdilim (1962) 2 SCNLR 341. – FABIYI JCA. Ilomuanya v. Ilomuanya (2004)
* SUBSTANTIVE
