By Legalpedia

NIGER DELTA DEVELOPMENT COMMISSION V. PAUL OSAJI(TRADING UNDER NAME & STYLE OF PAUL OSAJI& CO)

APPEAL NO: CA/L/1409/2018

Areas Of Law:
Action, Civil Law and Procedure, Court, Jurisdiction, Practice and Procedure.

Summary Of Facts:
The Respondent was engaged by the Appellant whose address for service as stated on the Writ of Summons, is No. 167 Aba Road, Port-Harcourt, Rivers State, to carry out the enumeration and valuation of properties along the right of way of a proposed road project for construction in Obagi Community, Omoku Local Government Areas, Rivers State, in the Niger Delta Region of Nigeria.

Upon the completion of the exercise by the Respondent’s Firm, a Fee Note for professional services rendered was submitted to the Appellant for payment, which the Appellant failed to honour, consequent upon which this suit was instituted alongside a motion on notice for summary judgment by the Respondent against the Appellant at the trial High Court of Lagos State.

The Appellant had challenged the territorial jurisdiction of the Court via a Notice of Preliminary Objection which was struck out by the Court below on the ground that same constituted a demurrer.

The Court below further entered Summary Judgment against the Appellant in favour of the Respondent during the pendency of the Appellant’s Appeal against the Ruling/decision of the Court under which the Court assumed jurisdiction to hear and determine the Respondent’s Suit, which Jurisdiction the Appellant had challenged via the Notice of Preliminary Objection.

Dissatisfied and aggrieved, the Appellant has filed the instant Appeal predicated on four (4) grounds of appeal.

HELD:

Appeal Allowed

ISSUES FOR DETERMINATION

Ø Whether the Facts contained in the Originating Processes filed by the Respondent at the lower Court, the Lagos High Court had the requisite territorial jurisdiction to hear and determine the Respondent’s suit, as constituted?

Ø Whether the decision of the Lower Court to suo motu raise the issue of demurrer in striking out the Appellant’s Notice of Preliminary Objection dated 13/9/2017 which challenged the jurisdiction of the Court, without affording the parties the opportunity to address it on same, does not amount to a breach of Fair hearing?

Ø Whether the decision of the lower court to hear, determine, and enter judgment in Favour of the Respondent on the Motion For Summary Judgment dated 4/7/2017 on a day it was not fixed for hearing, did not amount to a breach of the Appellant’s right to Fair hearing, thereby rendering the judgment a nullity?

RATIONES

WRIT OF SUMMONS- FEATURES OF A SPECIALLY ENDORSED WRIT OF SUMMONS IN SUMMARY JUDGEMENT PROCEDURE

 

The fact that the Court below entered a Summary Judgment in the instant case, naturally presupposes that the matter must have been   instituted by means of a specially endorsed writ of summons. The special feature in a writ of summons specially endorsed by the Claimant, when the Defendant has entered appearance is that the Claimant may, on an affidavit made either by himself or by any other person who can swear positively to the fact, verify the cause of action and the amount claimed (if any liquidated sum is claimed) and state that in his belief there is no defence to the action. The foregoing, inter alia, is to the effect that the cause or causes of action can be discerned from the depositions in the supporting affidavit.”-Per OHO J.C.A.

ACTION- MEANING OF CAUSE OF ACTION

“A cause of action is a factual situation. It consists of every fact which would be necessary for the order to support his right to judgment. A cause of action is equally that bundle or aggregate of facts, which the law will recognize as giving the Claimant a substantive right to make a claim for the relief or remedy being sought. Thus, the factual situation on which the Claimant   relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. See EGBE vs. ADEFARASIN & ANOR (1985) 1 NWLR (PT. 3) 549; UNION BANK OF NIGERIA LTD. & ANOR vs. PENNY-MART LTD. (1992) 5 NWLR (PT. 240) 228 and AJAYI vs. THE MILITARY ADMINISTRATOR ONDO STATE & 2 ORS (1997) 5 NWLR (PT. 504) 237 AT 272.” –Per OHO J.C.A.

SUMMARY JUDGEMENT- WHETHER WRIT OF SUMMONS MUST BE SPECIALLY ENDORSED

“It is pertinent that in a case for Summary Judgment of Liquidated Sums and the writ of summons is specially endorsed to take a hard look at the Writ and as well as the Statement of Claim to discern the nature of the Suit.” –Per OHO J.C.A.

TERRITORIAL JURISDICTION –DETERMINANTS OF RESIDENCE OF A PERSON WHO CARRIES ON BUSINESS IN TWO OR MORE PLACES

 

“The determinant factor on the residence of a person as well as a juristic person which carries on business in two or more places at the same time is invariably based on facts. In effect, the issue as to where the place of control of the business of a natural person, corporation or juristic person is, one of facts based on the pleadings and evidence in support. That indeed is the trite position at law. See Order 2 Rule 3 of the High Court (Civil Procedure) Rules of the High Court of Lagos State, 2012 which reads: “3. All suits for specific performance, or upon the breach of any contract, shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business“. See also R vs. THE MAYOR OF EXETER, WESCOMB’S CASE (1868) 4 L.R.Q.B. 110 AT 113; UNION CORPORATION vs. I.R.C. (1952); U.N.N. vs. ORAZULIKE TRADING COMPANY LTD. (SUPRA) AT 26 AND 27.” –Per OHO J.C.A.
TERRITORIAL JURISDICTION-WHETHER A COURT IN ONE STATE HAS JURISDICTION TO DETERMINE A SUIT THAT OUGHT TO BE INSTITUTED IN ANOTHER STATE
“It is also instructive to observe that, since the case in point deals with territorial jurisdiction, a suit which ought to have been brought in another State cannot confer jurisdiction on that wrong State even by agreement or consent of the parties. Such lack of jurisdiction is a fundamental vice. See ADESOLA vs. ABIDOYE (1999) 14 NWLR (PT. 637) 28 AT 52; OKOROMA vs. UBA (1999) 1 NWLR (PT. 587) 359 AT 378. The consequence of the instant case instituted in the Lagos Judicial Division in Lagos State High Court instead of Port Harcourt judicial Division in Rivers State High Court is that the former is devoid of jurisdiction.” –Per OHO J.C.A.
TERRITORIAL JURISDICTION – HOW TO BE DETERMINED IN AN ACTION FOR BREACH OF CONTRACT
“In the case of ARJAY LTD & ORS vs. A. M. S. LTD (2003) LPELR- 555 SC, the apex Court per ONU, JSC had this to say on the subject:
“Territorial jurisdiction of a Court can be determined by the following: (a) Where the contract in question is made (b) Where the contract is to be performed (c) Where the defendant resides. See Egbo v. Laguma (1988) 3 NWLR (Pt. 80) 109 at 126- 127; I.K. Martins (Nig.) Ltd. v. UPL (1992) 1 NWLR (Pt. 217) 322 at 331 and Lanleyin v. Rufai (1959) SCNLR 475, (1959) 4 FSC 184. “Per OHO J.C.A.
ACTION- WHERE AN ACTION FOR DEBT RECOVERY WHICH AROSE FROM BREACH OF CONTRACT MAY BE FILED
“In revisiting the dichotomy sought to be created between what amounts to an action grounded in contract on the one hand and what amounts to a recovery of debt action on the other hand, the apex Court in the case of OCEAN FISHERIES INDUSTRIES LTD vs. VEEPEE INDUSTRIES LTD (2009) ALL FWLR (PT. 470) 790 AT 791 had this to say on the subject:
“The mere fact that an action is for debt simpliciter does not detract from the fact that it arose from a breach of contract, so it must be filed where the contract was made or where the contract ought to have been performed or where the defendant resides or carries on business…” Per OHO J.C.A.
COURT- WHETHER A COURT CAN RAISE AND DECIDE ON ANY ISSUE SUO MOTU WITHOUT GIVING PARTIES OPPORTUNITY TO BE HEARD
“…it is a notorious point of law that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. The proper thing where a Court raises an issue suo motu, which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, the opportunity to be heard. See AJUWON vs. AKANNI (1993) 9 NWLR (PT. 316) 182 AT 190; AJAO vs. ASHIRU (1973) 11 S.C. 23 AT 39-40 ATANDA vs. LAKANMI (1974) 3 S.C. 109; KUTI vs. JIBOWU (1972) 1 ALL NLR (PT. 11) 180; R.T.E.A.N vs. N.U.R.T.W (1992) 2 NWLR (PT. 224) 381; FINNIH vs. IMADE (1992) 1 NWLR (PT. 219) 511 AT 537.”-PerOHO J.C.A
COURT- FAILURE OF COURT TO GIVE PARTIES OPPORTUNITY TO BE HEARD ON ISSUES RAISED SUO MOTU
“However, while the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an Appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. SEE IMAH vs. OKOGBE (1993) 9 NWLR (PT. 316) 159 AT 178; OLUBODE vs. SALAMI (1985) 2 NWLR (PT. 7) 282.” -PerOHO J.C.A
COURT- WHERE NOT NECESSARY FOR THE COURT TO GIVE PARTIES OPPORTUNITY TO BE HEARD ON ISSUES RAISED SUO MOTU
“It is to be noted however, that it is not in all cases where the Court raises issues suo motu that it will give the parties the opportunity of being heard as that would not be necessary if the issue raised relates to the Court’s own jurisdiction; or both parties are/were not aware or ignored a statute which may have bearing on the case; that is to say where by virtue of statutory provision the judge is expected to take judicial notice of something. See S. 73 of the Evidence Act; or when on the face of the record, serious question of the fairness of the proceedings is evident. In some special or exceptional circumstances the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. See TUKUR vs. GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (PT. 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.” -PerOHO J.C.A.

Statutes Referred To:

Constitution of the Federal Republic of Nigeria 1999

Criminal Code Law, Cap C21, Vol. 1, Laws of Delta, 2006

Delta State Anti-Kidnapping and Anti-terrorism Laws, No. 8, 2013

Evidence Act, 2011

Robbery and Firearms {Special Provisions} Act Cap R11 Vol. 14, Laws of the Federation of Nigeria, 2010

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Written By Dr. Hagler Sunny Okorie

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