CASE SUMMARY OF:
Barrister Clifford Nnanta Chuku v. Mr. Nicholas Kalio (2018) - CA
- Legal Stamp;
- Dismissal of suit;
- Originating Summons;
1. Barrister Clifford Nnanta Chuku (Lawful Attorney to Hon. Justice F.N.N. Ichoku (Rtd) and Chizoba Atu, Esq. Executors/Trustees of the Will and Estate of Chief Friday Chuku)
Mr. Nicholas Kalio;
To: Every other Person in occupation of the building situated within and known as No. 12, Ndabros Street, Nkpogu, Port Harcourt, Rivers State.
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
BITRUS GYARAZAMA SANGA, J.C.A.
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- C. N. Chuku, Esq.;
* FOR THE RESPONDENT
- J.H. IGBIKIBERESIMA Esq.;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
The Plaintiff's (now Appellant) suit was dismissed by the High Court. The Appellant has herein appealed to this honourable court.
GROUNDS OF APPEAL:
1: The learned trial Judge misdirected itself (sic) in law when it held that the Claimant cannot commence this suit by originating summons for possession without more.
2: The learned trial Judge erred in law when it dismissed the entire action of Claimant/ Appellant for being incompetent having been commenced by originating summons for possession.
3: The learned trial Judge erred in law by relying and basing her decision/ruling on the named Defendant/Respondent counter affidavit and or other processes filed in Court which had no seal and stamp of the Nigeria Bar Association (NBA) affixed thereon.
4: The learned trial Judge erred in law by applying the ruling in this suit to suit no: PHC/582/2015, PHC/581/2015, PHC/577/2015, PHC/579/2015, PHC/583/2015, PHC/580/2015, PHC/584/2015.
5: The learned trial Judge erred in law for not making an order for possession in favour of the Claimant/Appellant.
1: Whether the learned trial Judge was right in her decision/ruling of dismissing the suit on the basis that the suit was incompetent having been commenced by way of originating summons for possession.
2: Whether the learned trial Judge in determining the suit was right in relying on the counter affidavit and other processes of the defendant filed by counsel which had no stamp and seal of the Nigerian (sic) Bar Association (NBA) affixed thereon?
3: Whether the learned trial Judge without an order for consolidation of suit was right in applying the decision/ruling suit not PHC/582/2015, PHC/581/2015, PHC/577/2015, PHC/579/2015, PHC/583/2015, PHC/580/2015, PHC/584/2015 to the suit herein appeal?
[PRELIMINARY OBJECTION BY RESPONDENT]:
1: Issue no. 2 is an issue that was neither raised nor duly canvassed at the lower Court but in the absence of the requisite leave of this Hon. Court, same is being canvassed for the first time in the instant appeal and thus incompetent.
2: The appellant having failed to affix a seal on any of his process is not competent to raise the issue of failure to affix a stamp and having regard to Order 10 Rule 1, Rules of Professional Conduct for Legal Practitioners.
HOLDING & RATIO DECIDENDI
[PRELIM: SUCCEEDS IN PART]
1. ISSUE 1 OF THE PRELIMINARY OBJECTION WAS DISMISSED.
i. Upon considering the holding by the Supreme Court on legal document not sealed by seal of learned counsel who filed same before a Court, that it is not null and void or incompetent but it is deemed not to have been properly signed or filed as the condition precedent to its proper signing and filing had not been met. In this Court on several occasions when the issue arose we stood down the appeal and allow counsel to go to the registry to put his seal on all the processes he filed and sign them. Where he was not issued a seal he can display to the Court a receipt of payment of his practicing fee indicating that he is entitled to be issued his seal and that will suffice. It has nothing to do with jurisdiction of the Court to hear the suit, neither is it an issue that can be made a subject of appeal. In view of the foregoing it is my finding that the notice of Preliminary Objection has no basis and same is hereby dismissed.
However, the Court of Appeal struck out ISSUE 2 of the main appeal. The Court of Appeal stated further, "Accordingly, issue 2 formulated by the Appellant is a storm in a tea cup since the Supreme Court held that the process so filed without a stamp or seal of the Nigeria Bar Association (NBA) are deemed not to have been properly signed and filed but they are not null and void or incompetent. Issue 2 is therefore tantamount to making a mountain out of a mole hill. It is hereby struck out."
[APPEAL: SUCCEEDS IN PART]
1. FOR ISSUE 1 & 3, THE COURT OF APPEAL STATED "The claimant/Appellant ought not to have commenced this suit under "summary proceedings for possession of landed property occupied by squatters or without the owner's consent" pursuant to Order 53 of the High Court of Rivers State (Civil) Rules, 2010. Rather, he should have commenced this Suit under Order 3 Rules 2 and 3 (Supra). The learned trial Judge is perfectly right in citing the above provision to refuse hearing the suit.
The question to consider is; was the learned trial Judge right in dismissing the suit instead of striking it out?
Upon considering the holding by the Supreme Court as it relate to dismissing a suit, vis-a-vis the facts and circumstances of this suit, it is my holding that the learned trial Judge was not right in his decision/ruling dismissing this suit on the basis that it was incompetent having been commenced by way of originating summons for possession. The said order for dismissal is hereby set aside and in its place an Order striking out suit No. PHC/578/2015 is issued. Thus this suit is struck out for lack of merit and the Appellant can put their house in order and come under the appropriate Rules of Court for the matter to be heard and determined on the merit; This judgment is also applicable to suits No. PHC/582/2015, PHC/581/2015, PHC/577/2015, PHC/579/2015, PHC/583/2015, PHC/580/2015 and PHC/584/2015 which were summarily dismissed by the learned trial Judge in one fell swoop on page 52 of the Records."
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The law is trite that an order dismissing a suit means an order of Judgment finally disposing of an action, suit or motion with or without trial of issues. - SANGA, J.C.A. CHUKU v. KALIO (2018)
The end of this brief.
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