AARTI STEEL NIGERIA LIMITED V. ALHAJI SABITU ADISA OTAPO & ORS
In The Court of Appeal of Nigeria
On Thursday, the 18th day of October, 2018
Before Their Lordships
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
FOLASHADE OJOJustice of The Court of Appeal of Nigeria
AARTI STEEL NIGERIA LTDAppellant(s)
1. ALHAJI SABITU ADISA OTAPO
2. MR. BELLO KABIRU
3. MR. BELLO LUKMAN (for themselves and on behalf of Late Alhaji Yekinni Rafiu
Bello also known and called
Alhaji Yekinni Bello Rafiu)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of High Court of Justice, Ogun State, Ota Judicial Division in Suit No HCT/147/2013 Between ALHAJI S. A. OTAPO AND (1) MR. BELLO KABIRU (2) MR. BELLO LUKMAN (3) AARTI STEEL NIGERIA LTD, delivered on the 4th day of July, 2013.
Briefly, the facts of the case are that the subject matter of this action is the property situate near Ogun State Housing Corporation Estate Ota, in the Ado Odo/Ota Local Government Area of Ogun State. The land said to be 3.124 Hectares was owned by Late Alhaji Yekinni Rafiu Bello. It is covered by certificate of occupancy dated 7/2/96 and registered as No 60 at page 60 in Vol. 522 in the Land Registry Abeokuta.
The Claimant/1st Respondent, a farmer and business-man of Iyedi Titun Osi quarters, Ota by his Writ of Summons and statement of claim filed on 11/2/2013 claimed that he bought 3 acres out of the total acreage of 7acreas from the 1st and 2nd Respondents formerly the 1st and 2nd defendants. By a sale transaction evidenced by a sale agreement dated 10/10/2005, the said sale which was filed in Court was pleaded as conferring ownership and right of possession of the land on the claimant.
It was stated that on the face of the agreement the transaction did not receive Governors consent as required by Section 22 of the Land Use Act. Also, the document though stamped, was not registered as required by Section 8 of the Land Instruments Registration Law Cap L. 53 Laws of Ogun State of Nigeria, 2006.
The claimant who is 1st Respondent in this Court commenced this action against the 2nd and 3rd Respondents and the Appellant for declaration of title, injunction and damages for trespass.
Upon being served with the originating process at the lower Court, the Appellant entered a conditional appearance and immediately filed a motion on notice on 23/4/13 for an order striking out the endorsement on the Writ of Summons and certain paragraphs of the statement of claim on the ground that the action disclosed no reasonable cause of action against the Appellant and further that the objectionable paragraphs of the statement of claim are neither pleadable nor admissible in evidence.
Both the claimant and the Appellant filed written addresses which were adopted at the hearing of the application.
At the conclusion of hearing, the learned trial Judge held that the application was incompetent and dismissed it on the ground that it is an abuse of Court Process, and also that it lacked merit.
The Appellant who is dissatisfied with the Ruling of the Lower Court appealed to this Court.
The Learned Counsel for the Appellant formulated five issues for the determination of the appeal. The issues are reproduced as follows:-
(1) Whether the Court below was right to hold that the grounds of the application before it did not raise issue of jurisdiction, to warrant being determined in limine (Distilled from Ground 1)
(2) Whether having regard to the applicable Rules of Court and well established practice, the Court below was not wrong when it held that the application was a demurrer and so the grounds of objection could only be appropriately raised by the statement of defence and that the summary procedure in Order 15 Rule 18(1)
is subject to the provisions of Order 22 rule 1. (Distilled from Ground 2)
(3) Whether the trial Court did not wrongly exercise its discretion when at that stage of the proceeding it refused to strike out from the statement of claim averments relating to unregistered instrument which is by law unpleadable and inadmissible in evidence (Distilled from Ground 5)
(4) Whether from the facts and in all the circumstances of the case, the decision of the Court below refusing to grant the appellants application was a discretion judicially and judiciously exercised. (Distilled from Grounds 3, 4 & 7)
(5) Whether in the circumstances of the case, the failure of the Court below to ensure that the exercise of its discretion was the outcome of a fair Judicial decision did not occasion miscarriage of Justice. (Distilled from Ground 6).
In his own case, the Learned Counsel for the 1st Respondent formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
(1) Whether or not the trial/lower Court wrongly exercised its judicial powers when His Lordship dismissed the Application of the Applicant/3rd Respondent and held that none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general position of the law that the issue of jurisdiction can be raised at any time.
(2) Whether or not the motion on notice at pages 53-72 of the record of Appeal filed by the Appellant was caught by demurer and same was an abuse of Court Process.
On 17/9/2018, when this appeal came up for hearing, the Court was informed that the 2nd and 3rd Respondents were represented in Court by Counsel on 14/3/2018 when the appeal was adjourned till 17/9/2018 for hearing.
The Learned Counsel for the Appellant while arguing the appeal stated that the appeal is against the ruling of the High Court of Ogun State delivered on 4/7/2013. The Notice of appeal was filed on 7/8/2013. The Appellants brief of argument was filed on 24/10/2013 and deemed properly filed on 13/10/2014. The Learned Counsel for the Appellant adopted and relied upon the Appellants brief of argument as his argument in urging that the appeal be allowed. He relied on the case of – AJAYI VS ADEBIYI (2012) ALL FWLR Part 634 pages 28 -31.
The Learned Counsel for the 1st Respondent in arguing the appeal referred to the 1st Respondents brief of argument filed on 20/11/2014 which was deemed as properly filed on 14/3/2018. He adopted and relied on the said brief as his argument in urging that the appeal be dismissed with substantial costs.
The Learned Counsel for the 2nd and 3rd Respondents was present in Court on 14/3/2018 when this appeal was adjourned till 17/9/2018 for hearing. He did not file any brief on behalf of 2nd and 3rd Respondents.
I have perused the issues formulated for the determination of the appeal by Counsel for the Appellant and that of 1st respondent. The issues are similar but the issues on behalf of the 1st Respondent encapsulates the issues formulated on behalf of the appellant. I will therefore rely on the said issues formulated on behalf of the 1st Respondent in the determination of this appeal.
ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUES 1 and 2 (Taken together)
Whether or not the trial/lower Court wrongly exercised its judicial powers when the trial Judge dismissed the Application of the Appellant/3rd Defendant and held that none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general position of the law that the issue of jurisdiction can be raised at any time. (Distilled from ground 1).
Whether or not the motion on notice filed on behalf of the Appellant filed on 23/4/13 was caught by demurrer and same was an abuse of Court process. (See pages 53 to 72 of the Record of Appeal. (Distilled from grounds 2 to 7).
The Learned Counsel for the Appellant referred to the motion on notice filed at the lower Court where it was contended that by its Writ of Summons the Claimant/1st Respondent has not by his Writ of Summons and Statement of Claim demonstrated that he has a reasonable cause of action to invoke the jurisdiction of the Court for the declaratory and other relief sought.
It was stated on behalf of the Appellant that the application was brought under the inherent jurisdiction of the Court and Order 15 Rule 18(1) of the High Court of Ogun State (Civil Procedure) Rules 2008 which enabled the Court to determine by summary process an action in which the statement of claim shows no cause of action. He also referred to the Ruling of lower where it was held that the application is an abuse of Court process.
The Learned Counsel for the Appellant submitted that the lower Court rather than consider the application on its merit, acted under a misconception of facts and misconception of the applicable law, when it held that the application is a demurrer which ought to await the filing of statement of defence and also that there is no issue of jurisdiction involved. He contended that the lower Court failed to appreciate that a challenge of the jurisdiction of the Court is implicit in a complaint that a Plaintiff has no cause of action. He relied on the following cases:-
A.G. FEDERATION VS. A. G. ABIA STATE (2001) FWLR Part 64 PAGE 277 PARAGRAPHS A C.
IKEJA HOTELS PLC VS. LAGOS STATE BOARD OF INTERNAL REVENUE (2005) ALL FWLR PART 279 PAGE 1260 AT 1274E.
SECTION 6 (6)(B)OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED). B. M. LTD VS. WOERMANN LINE (2009) 13 NWLR PART 1159 PAGE 1794.
BADEJO VS FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR PART 464 PAGE 15 RATIOS 12 AT PAGE 23 AND RATIOS 16 AT PAGE 24.
AKINTOLA VS SOLANA (1986) 2 NWLR PART 24 PAGE 596 AT 623 PARAGRAPHS F G.
It was also submitted on behalf of the Appellant that whenever the issue of there being no cause of action is raised, the jurisdiction of the Court is indirectly called to question and that has to be determined first before proceeding further.
The Learned Counsel for the Appellant went further in his submission that a claimant ought to reveal on the face of his statement of claim a legally recognizable interest in the subject matter of the action in order to assure the Court that he had legal grievance sufficient to invoke the jurisdiction of the Court.
He relied on the following cases:-
IBRAHIM VS. OSIM(1988) 3 NWLR PART 82 PAGE 257.
ADEFULU VS. OYESILE (1989) 5 NWLR PART 122 PAGE 377 IN RE-IJELU (1992) 9 NWLR PART 266 PAGE 414.
R. C. C. LTD VS. VEEPEE IND. LTD (2005) ALL FWLR PART 264 PAGE 816 AT 825G.
It was also submitted on behalf of the Appellant that where matters are not pleadable, the Court is obliged to strike out the Plaintiffs suit. It was argued that because the statement of claim failed to aver facts essential for conferring validity to the 1st Respondents root of title, i.e that the sale transaction received Governors consent, the reliefs sought by the 1st Respondent are not maintainable against the Appellant.
Finally Learned Counsel for the Appellant argued that the issues in this appeal be resolved in favour of the Appellant.
In his own response, the Learned Counsel for the 1st Respondent submitted that none of the five grounds in support of the application could avail the Appellant to raise the issue of jurisdiction. He relied on the following cases:-
UTB NIG. LTD VS. OZOEMENA (2001) 7 NWLR PART 713 AT 718.
ABIA STATE VS A. G. OF FEDERATION (2006) 7 SC PART 1 PAGE 51.
He went further in his submission that some of the five grounds, stated in support of the Appellants application cannot be determined without evidence being adduced in the matter. It was further argued that
a Court lacks jurisdiction to award what a party did not ask for and that the issue of non-registration of the 1st respondent/claimant???s title document can only be trashed out during trial when the Court will have opportunity to hear the evidence, look at the document and apply the law for its admissibility. On the issue of obtaining Governor???s consent, the Learned Counsel for the 1st Respondent submitted that it is premature since the trial is yet to commence.
On the issue of demurer the Learned Counsel for the 1st Respondent, submitted that the Appellant/Applicant failed woefully to place credible and compelling materials before the Court so as to entitle it to the reliefs sought. He argued that it is necessary for the Appellant to strictly comply with the mandatory provisions/rules of Court. He referred to ORDER 22 RULES 1 & 2 OF THE OGUN STATE, HIGH COURT (CIVIL PROCEDURE) RULES.
ORDER 15 RULE 18 (1) (Supra).
It was also submitted on behalf of the 1st Respondent that the Appellant failed to file its statement of Defence and other front loaded processes before filing the Preliminary Objection against the 1st Respondent’s suit. He relied on the following cases:-
BAMAIYI VS. ATT. GEN OF FEDERATION (2001) 12 NWLR PART 727 PAGE 468.
BEN O. NWABUEZE VS. JUSTICE OKOYE (1989) 4 NWLR PART 91 PAGE 664 AT 713.
ODUA VS. TALABI (1997) 10 NWLR PART 523 PAGE 1 AT 21. ATT. GEN ANAMBRA STATE VS OKEKE & ORS (2002) 10 NSCQR VOL. 2 PAGE 792 AT 805.
He also submitted that the proceedings in lieu of demurer rightly and legally compelled and/or mandate the Defendant such as the Appellant/Defendant in this case to file a Statement of Defence and from it isolate issues of law, it feels will determine the suit partially or wholly.
He relied on the following cases:
PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS VS. EDUN & ORS (2004) SC. PART II PAGE 17.
OMOREGBE VS. LAWANI (1980) 3-4 SC PAGE 108.
INAKOJU & 17 ORS VS. ADELEKE & 3 ORS (2007) 1 SC. PART 1 page 131 and 133 at Page 233 Paragraphs 25 – 35.
TABIOWO VS. DISU (2008) 7 NWLR PART 1087 Page 533 at 548, 549 Paragraphs B D and H – A.
THE REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST VS. J. K. OWODUNNI & ORS O.G.S.L.R. (1999) (2002) PAGE 145.
OMIN III VS. GOV. CROSS RIVER STATE (2007) VOL. 41 WRN PAGE 158 AT 192.
It was also argued on behalf of the 1st Respondent that demurer is different from objection to jurisdiction. The following cases were referred to:
NDIC VS. CBN (2002) 3 SCNJ PAGE 75 AT 89.
FADARE VS. ATT. GEN. OYO STATE (1982) 13 NSCC PAGE 52.
Learned counsel argued further that the application brought by the Appellant before the lower Court was anchored on technicality and he urged this Court not to allow undue technicality to defeat the course of Justice. He relied on the following cases:-
FAMFA OIL LTD VS ATTORNEY GENERAL OF FEDERATION (2003) 18 NWLR PART 852 PAGE 453 AT 471-472.
DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR PART 959 PAGE 130 AT 135.
He finally submitted that the application of the Appellant is premature and an abuse of judicial process. He urged that the appeal be dismissed with substantial costs in favour of the 1st Respondent.
By an application filed on behalf of the Appellant before the lower Court on 23/4/2013, it prayed for an order striking out the endorsement on the Writ of Summons and the Statement of Claim on the ground that:
(a). The claim discloses no reasonable cause of action.
(b). It is scandalous, frivolous and vexatious.
(c). It otherwise constitutes an abuse of the process of Court.
The grounds relied upon by the Appellant are:-
(i). That although the 1st Respondent claimed to have acquired ownership and exclusive possession of the property in dispute on the basis of Sale Agreement dated 10/10/2005 which stated on its face that the transaction was to be effected pursuant to the provisions of the Land Use Act, he did not show that the transaction in fact received Governor’s consent as required by Section 22 of the Land Use Act, and therefore the transaction having been rendered unlawful, null and void by Section 22 and Section 26 of the said Act was not capable of conferring any legally recognizable right on the Claimant.
(ii). The said Sale Agreement being a registrable instrument which was not registered as required by the provisions of the Land Instruments Registration Law Cap L 53 Laws of Ogun State of Nigeria 2006 was void under Section 15 of the said Law and unpleadable and inadmissible in evidence under Section 16 of the Law and so the averments relating to it are liable to be struck out in limine.
(iii). In so far as the sale transaction was unlawful, null and void in line with Section 22 and 26 of the Act the averments relating thereto in the Statement of Claim, even if
proved, are not capable of establishing any legally recognizable interest in land.
(iv). Without a legally recognizable interest, the Claimant could not have suffered any legal grievance to invoke the jurisdiction of the Court.
The Application was brought under the inherent jurisdiction of the Court and Order 15 Rule 18(i) of the High Court of Ogun State (Civil Procedure) Rules 2008.
The 1st Respondent in his reaction filed counter affidavit and contended that the Appellant’s application constituted a demurer which has been abolished by Order 22 Rule 1 of the Ogun State High Court (Civil Procedure) Rules.
This will now lead me to ask the question What is a demurer proceeding?
In a demurer proceeding the basic essence is that the party raising same contends that even if all the allegations in the statement of claim are right, it still does not in law disclose a cause of action for the party contending to answer
The party who demurred would not proceed with his pleading but, having raised a point of law as to whether any case had been made out in the opponent’s pleading for him to answer, awaited the decision on that point. See BAMBE VS. ADERINOLA (1977) 1 SC. PAGE 1.
The application under consideration which led to this appeal was brought under the inherent jurisdiction of the Court and Order 15 Rule 18(1) of Ogun State High Court (Civil Procedure) Rules 2008 which states that:-The Judge may at any stage of the proceeding order to be struck out or amend any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:-
(a) it discloses no reasonable cause of action or defence, as the case may be, or
(b) it is scandalous, frivolous or vexatious or
(c) it may prejudice, embarrass or delay the fair trial of the action, or
(d). it is otherwise an abuse of process of the Court, and may order the action stayed or dismissed or judgment to be entered accordingly, as the case may be. (2).——–
The contention of the Appellant is that the Claimant/1st Respondent has not by its Writ of Summons and Statement of Claim demonstrated that he has a reasonable cause of action to invoke the jurisdiction of the Court for the declaratory and other reliefs sought.
It is settled law that there must be a cause of action before an intending litigant can initiate any legitimate proceedings.
The contention of the learned counsel for the Appellant is that the 1st Respondent has not demonstrated that he has reasonable cause of action to invoke the jurisdiction of the trial Court for the reliefs sought. This is because although the 1st Respondent who claimed to have acquired ownership and exclusive possession of the property in dispute on the basis of Sale Agreement dated 16/10/2005 which stated on its face that the transaction was to be effected pursuant to the Provision of the Land Use Act but it was not shown that the transaction received Governors consent as required by Section 22 of the Land Use Act. Therefore the transaction having been rendered unlawful, null and void by Section 22 and 26 of the Land Use Act was not capable of conferring any legally recognizable right on the 1st Respondent.
It was also contended that the Sale Agreement being a registrable instrument which was not registered as required by the provisions of the Land Instruments Registration Law Cap L 53 Laws of Ogun State of
Nigeria 2006, was void under Section 15 of the said Law. It is unpleadable and inadmissible in evidence under Section 16 of the law.
Consequent upon the foregoing the averments relating to it in the Writ of Summons and Statement of Claim are liable to be struck out in limine.
The 1st Respondent has not shown that the contention of the Appellant lacks substance. In fact since it was not shown in any way that Sections 22 and 26 of the Land Use Act was complied with and the Land Agreement relied upon by the 1st Respondent was not shown to have been registered in accordance with the Provisions of the Lands Instruments Registration Law Cap. 53 Laws of Ogun State of Nigeria 2006, then the lower Court lacks jurisdiction to entertain the matter because the 1st Respondents claim disclosed no reasonable cause of action.
It is settled law, that there must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side that a cause of action is said to accrue. See the following cases:-
AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR PART 127 PAGE 369.
OSIGWE VS PSPLS MANAGEMENT CONSORTIUM LTD (2000) ALL FWLR PART 470 PAGE 607.
I am of the view that the 1st Respondent who desires to rely on a registrable instrument to buttress title in land must show clearly, the particulars of registration of such title. This is because Section 16 of the law provides that if a registrable instrument is not duly registered, it shall not be pleaded to ground or sustain title. If an unregistered registrable instrument is pleaded to establish title to land, such paragraph should be struck out.
See the following cases:-
AKINDURO VS. ALAYA (2007) ALL FWLR PART 381 PAGE 1653 AT PAGE 1666 H 1667 B.
AGBODIKE VS ONYEKABA (2001) FWLR PART 62 PAGE 1915.
OSSAI VS NWAJIDE (1978) 4 SC PAGE 207 PER SOWEMIMO JSC AT PAGES 211 213.
In the case of BADEJO VS FEDERAL MINISTER OF EDUCATION (1996) 8 NWLR PART 464 PAGE 15 it was held in ratios 12 at page 23 and 16 at page 24 as follows:
The Court under its inherent power may at any time of the proceedings order to be struck out or amend any pleading or the endorsement of any writ in the action or anything in any pleading or in the endorsement on the ground that it discloses no reasonable cause of action or defence, as the case may be and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. The power is the sanction for compelling parties to comply with the rules of pleadings and the practice of the Court relating thereto
The summary procedure of disposing of an action is only appropriate to cases which are plain and obvious, so that any judge can say at once that the statement of claim as it stands is insufficient even if proved, to entitle the Plaintiff to what he asks.
Also in AKINTOLA VS SOLANA (1986) 2 NWLR PART 24 PAGE 596 AT 623 PARAGRAPH F G, it was held amongst others that-
It is high time our trial Court (and Counsel for the Plaintiff especially) begin looking critically at the pleadings and where appropriate giving judgment on the pleadings if no triable issue of fact has been raised. There the Plaintiffs case should be considered on its pleadings and the applicable law. Where the Plaintiffs statement of claim does not disclose a cause of action that is where, even if all the allegations of fact therein averred are established, yet still the Plaintiff would not be
entitled to the relief sought, therefore instead of filing a statement of defence, the defendant should move the Court to have the case dismissed.
All that I have been saying boils down to the fact that whenever the issue of there being no cause of action is raised, the jurisdiction of the Court is indirectly called to question and it has to be determined first before proceeding further. This is because the issue of jurisdiction is a threshold issue and a lifeline for continuing any proceedings. If there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted.
The application which led to this appeal was set out earlier in this Judgment. I have also showed that the said application is a challenge to the jurisdiction of the trial Court to entertain the 1st Respondents claim at the lower Court.
But before I conclude on this Judgment, I want to emphasise the fact that there is a difference between an objection to jurisdiction and a demurer. In a demurer proceedings there should be a statement of claim in place, the facts of which the applicant would be required to admit before bringing his objection. An objection to the jurisdiction of the Court can be raised at any time, even when there is no pleading filed and a party raising such an objection need not bring application under any rule of Court.
The application can be brought under the inherent jurisdiction (as done by the Appellant in this case) therefore once the objection to the jurisdiction of the Court is raised, the Court has inherent power to consider the application even if the only process of Court that has been filed is the Writ of Summons and affidavit in support of an interlocutory application.
In this case as at the time the Appellant filed its application at the lower Court to object to the jurisdiction of the lower Court to entertain the 1st Respondents suit, the Writ of Summons and Statement of Claim had been filed and served, the application supported by affidavit with a counter affidavit was already filed. The fact that no statement of defence was filed should not have made the Learned trial Judge to hold that the application which objected to the jurisdiction of the Court is a demurer. The trial Court was therefore wrong to have dismissed the application.
Consequent upon the foregoing, the two issues in this appeal are resolved against the 1st Respondent and in favour of the appellant.
In the result, with the resolution of the two issues for determination in this appeal in favour of the Appellant and against the 1st Respondent, it is my view that there is merit in this appeal and it is hereby allowed.
The Ruling of the lower Court in Suit No: HCT/47/13 ALHAJI S. A. OTAPO VS MR. BELLO KABIRU & ORS delivered on 4/7/2013 is hereby set aside. And in its place, the Application of the Appellant before the lower Court is hereby granted. The Claimant/1st Respondents claim at the lower Court is hereby struck out.
The Appellant is entitled to costs which is fixed at N200,000.00 against the Claimant/1st Respondent.
HARUNA SIMON TSAMMANI, J.C.A.: I read in draft form the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
It is not in doubt, that a plea that a claim does not disclose a reasonable cause of action entails the competence and therefore the jurisdiction of the Court to hear and determine same. This is so because,
where there is no reasonable cause of action, the Court would be acting in vain if it proceeds to entertain such a suit. See Drexel Energy & Natural Resources Ltd & Ors v. Trans International Bank Ltd & Ors (2008) 18 NWLR (pt. 1119) 388 and RINCO Const. Co. Ltd v. Vee Pee Ind. Ltd & Anor (2005) 9 NWLR (pt.929) 85.
In such a situation, the action would not be justiciable. The consequence is that, it would be struck out for non-disclosure of reasonable cause of action. Since it has a direct effect on the jurisdiction of the Court to hear and determine the matter, it is not an issue of demurrer. I am therefore of the view, in agreement with my learned brother in the lead judgment, that the Appeal has merit and is accordingly allowed. I abide by the consequential orders made by my learned brother.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother Jimi Olukayode Bada JCA. His Lordship has dealt extensively with all the issues arising for determination in this appeal and I agree with the reasoning and conclusion therein.
I however wish to reiterate that where a suit discloses no reasonable cause of action as provided for under Order 15 Rule 18(1) of the High Court of Ogun State Civil procedure Rules, the provisions of Order 22 Rule I relating to demurrer would not be applicable. In the ruling which is the subject mater of the present appeal, the trial judge at page 108 of the Record of Appeal found as follows:
I must state that I do not agree with the interpretation applicants counsel sought to place on Order 15 Rule 18(1) of the Rules. That provision cannot be read in isolation from Order 22 Rule 1 which says no demurrer shall be allowed. A party is expected to raise points of law by his pleading and apply to have the points of law set down for hearing. I have looked at the grounds relied upon for this application and none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general provision that the issue of jurisdiction can be raised at any time. Some of the
grounds stated In support of this application cannot be determined without evidence adduced in the matter. The ground that the claim discloses no reasonable cause of action can only be upheld if it is shown that the pleadings is so defective that nobody can understand what claim he is required to meet.”
As stated by the lower Court, Order 15 Rule 18(1) of the Ogun State High Court Civil Procedure Rules 2008 cannot be read in isolation from Order 22 Rule 1 of the same Rules. It is trite that in constructing a section of a statute, it should be done on the footing that such section is part of a greater whole.
See ADEWUMI & ANOR VS A.G. OF EKITI STATE & ORS (2002) 2 NWLR Pt.751, 474; ( 2002) LPELR 3160 @ 48 Paras E-G.
In F.M. B. N. VS. OLLOH 2002 9 NWLR (Pt. 773) 475; (2002) LPELR – 1271 @ 11-13 Paras E A, the Supreme Court, Per UWAIFO JSC held as follows:
The law is that where there is a special provision in a statute, a later general provision in the same statute capable of covering the same subject matter is not to be interpreted as derogating from what has been specially provided for individually unless an intention to do so is unambiguously declared. To do otherwise is to indirectly use a general provision to alter the intention to provide specially by way of an exception for a subject-matter. See The Vera Cruz (1884-1885)10 App. Cos. 59 at p. 68 per Earl of Selbourne L.c.; BlackpoolCorporation V. State Estate Co. Ltd. (1922) 1 AC 27 at p. 34 per Viscount Haldane. The Latin maxim is: Generalisclausula non porrigituradea quae antea special itersuntcomprehensa (A general clause does not extend to those things which are before specially provided for). In Bamgboye v. Administrator-General (1954) 14 WACA 616,
Bairamian, J, explained the principle when he observed at p. 619 as follows: It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject-matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provision is considering the particular case and expressing its will in regard to that case; hence the special provision forms an exception importing the negative; in other words the special case provided for in it is excepted and taken out of the general provision and its ambit; the general provision does not apply. In the words of Lord Selbourne L.C., in Seward v. Vera Cruz’ (1884) 10 App. Cos. 59 at 68, Now of anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold the earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention so to do… The above rule of construction applies equally, of course, when the special and the genera/provisions are enacted in the same piece of legislation: See Dryden v. The Overseers of Putney (1876)1 Exch. 223 at 232.
Being a general rule, the provisions of Order 22 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules should not be construed to extend to circumstances specifically and earlier on provided for by Order 15 Rule 18(1) of the same Rules.
For ease of reference Order 15 Rule 8(1) provide as follows:
The judge may at any stage of the proceedings order to be struck out or amended any
pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –
(a) It discloses no reasonable cause of action or defence, as the case maybe; or
(b) it is scandalous, frivolous or vexatious; or
(c) It may prejudice, embarrass or delay the fair trial of the action;
(d) It is otherwise an abuse of the process of the Court, and may order the action stayed or judgment entered accordingly.”
Order 22 Rule 1 of the High Court of Ogun State (Civil Procedure) Rules 2008 provides as follows:
(1) No demurrer shall be allowed.
The learned authors of Haisburys Laws of England, 3rd Edition, Volume 36 at Paragraph 583 at page 389 – 390 stated the law as follows:
It may be presumed that words used are not used in a statute without a meaning and not tautological or superfluous, and so effect must be given, if possible to all the words used, for the legislative is deemed not to waste its words or say anything in vain.”
It is my view that the provisions of Order 15 Rule 18(1) of the High Court of Ogun State Civil procedure Rules were not made in vain but to make provision specifically for circumstances that are not classified as demurrer proceedings
In DANTSOHO VS. MOHAMMED (2003) 6 NWLR (PT. 817) 457 @ 492, Paras G-A, the Supreme Court Per UWAIFO JSC held as follows:
I must say that it is neither proper nor safe to interpret Section 5(2) without the necessary insight. Furthermore, it is the law that in constructing any provision of a statute, a Court ought and is indeed bound to consider any other parts of the statute which throw light upon the intention of the legislative and which may serve to show that a particular provision ought not be constructed as it would if considered alone without reference to such other parts of the statute.
See COLQUNOUN V. BROOK (1889) 14 App. Cas. 493 at 506 Per Lord Herschel. The same principle was stated by this Court in several cases including AQUA LTD. VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622 A T 641 642 Per WALI JSC and SALAMI VS. L. E. P. B. (1989 5 NWLR (Pt. 123) 539 A T 550-551 Per OBASEKI JSC.
It is also pertinent to note the provisions of Order 22 Rule 4 of the said High Court of Ogun State (Civil Procedure Rules which state as follows:
(4) The Court or a judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in such case or in the case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a judge may order the action to be stayed or dismissed or judgment to be entered accordingly as may be just.
From all of the foregoing, it is therefore very clear that there are exceptions to the provisions of Order 22 Rule 1 which contain the general provision abolishing demurrer proceedings.
In the application dated 23rd April, 2013 and filed on the same date at the lower Court, the appellant prayed for an order striking out the endorsement on the writ of summons and the statement of claim and dismissing the action on the grounds that
a) The action discloses no cause of action;
b) It is scandalous, frivolous and vexatious;
c) It otherwise constitutes an abuse of the process of the Court.”
The said Motion which was brought pursuant to the inherent jurisdiction of the Court and the provisions
of Order 15 Rule 18(1) of the High Court of Ogun State (Civil Procedure) Rules 2008 is at page 53 – 54 of the Record of Appeal. To my mind, that motion is within the exception to the general rule contained in Order 22 Rule 1 which abolishes demurrer generally.
In the light of all I have said above, I agree with my learned brother that the lower Court came to a wrong conclusion when it held that the application of the appellant was a demurrer. It is for this and the fuller reasons given by my learned brother, Jimi Olukayode Bada JCA that I also allow this appeal and set aside the ruling of the lower Court in SUIT NO. HCT/47/13 delivered on the 4th of July, 2013.
Mr. S. A. Onadele with him, E. A. Onadele, Esq.For Appellant
Mr. S. O. Ola – for 1st Respondent.
2nd & 3rd Respondents were represented in Court on
14/3/2018 when the appeal
was fixed for hearing on