AGU v. DURU ( 2017)

BARRISTER A.C. AGU V. BARRISTER M.N. DURU & ORS

In The Court of Appeal of Nigeria

On Friday, the 3rd day of February, 2017

CA/K/340/2014

Before Their Lordships

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

BARRISTER A.C. AGU Appellant(s)

AND

1. BARRISTER M.N. DURU
2. CHIEF C.N. NWOSU
3. ENGR. S.N. OBIOHA
4. MR. CYRIL DURU
5. MR. INNOCENT IJEZIE
6. CHIDI EKEZIE
7. MR. T.K. IBEGBULEM
8. PIUS CHUKWUERE
9. CHINEDU NZEAKOR
10. OBIOMA AMATOBI
11. CHIENYE MBACHU
12. EDWIM MBOYI
13. OBIOMA EKEZIE
(For themselves and on behalf of majority share holders of the property known and called No. 35 Abeokuta Road, Sabon Gari Kano)
2.MR. LAZARUS ONUIGBO
(Sued for himself as the secretary Umuaka Development UNION Kano Branch)
3. MR. CHIBUIKE ODUMODU
(Sued for himself and as the Assistant Secretary UMUAKA
Development UNION Kano Branch). Respondent(s)

…………………….A…………………….

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): Before us is an appeal against an interlocutory Ruling of the Kano State High Court in a matter commenced by way of an originating summons by the 1st set of Respondents in this appeal. The originating summons prayed the lower Court to determine the following question, viz:-1. Whether in the light of the provisions of Section 15 of the Umuaka Development Union (UDU) Kano branch, the property known as No. 35 Abeokuta Road Sabon Gari, Kano, belonged solely to the Umuaka Development Union Kano Branch or the shareholders, which include Umuaka Development Union, Kano branch.
2. Whether in the light of the provisions of Section 15 of the constitution of Umuaka Development Union (UDU) Kano branch read alongside the entire provisions of the constitution of Umuaka Development union (UDU) Kano branch, the first Defendant can unilaterally suspend the shareholders meeting and dissolve the Board of Trustees of the property known as No. 35 Abeokuta Road, Sabon Gari, Kano.
3. Whether in the light of the provisions of Section 5 (2), 10 (8) or indeed any other provisions 
of the constitution of Umuaka Development union (UDU) Kano branch, the defendants possess the powers to determine the membership of the plaintiffs at all or in the manner same was carried out in this matter; and
4. Whether in the light of the provisions of Section 6 (1) of the Constitution of Umuaka Development Union (UDU) Kano branch, the term of office of the defendants will not come to an end in February, 2013 having commenced their current term in March, 2011.

Pursuant to the above questions sought to be determined by way of the originating summons, a number of declaratory reliefs and orders were sought from the lower Court. However, the Appellant herein filed a Notice of Preliminary Objection to the action before the lower Court on the ground that the Court had no jurisdiction to entertain the matter and on the further ground that the applicants seeking to have the matter heard by originating summons, had no locus standi to institute the action. Consequent on the said Notice of Preliminary Objection which was filed on 8/4/13, the lower Court on 10/4/14 delivered a ruling, which ruling is the subject of the present appeal. In the said Ruling, the lower Court over-ruled all the grounds of objection in the preliminary objection. Dissatisfied with the Ruling, the Appellant on 24/4/14 filed a Notice of Appeal dated 23/4/14 challenging the Ruling on the following grounds: –
1. The learned trial judge erred in law when he failed to consider the issue of the inappropriateness of commencing this suit No. K/101/13 by way of originating summons raised in the course of arguing the preliminary objection.
2. The learned trial Court erred in law when it held that the plaintiffs (shareholders) properly instituted this suit (K/101/13) in the State High Court instead of the Federal High Court
3. The learned trial judge erred in law when he held that suit No. K/101/13 was properly filed by the plaintiffs in a representative capacity
4. The learned trial Court erred in law by holding that the first defendant/applicant/Appellant was served with the originating summons in the matter when the first defendant’s counter-affidavit controverting the affidavit of service of the originating summons was not challenged by the plaintiffs and oral evidence not called.”
The Appellant filed his Brief of Argument dated 26/9/15 on 28/9/5. The 1st Respondent filed a Notice of preliminary objection dated 18/11/15, on 19/11/15. The Argument on the Preliminary Objection is contained in the 1st Respondents Amended Brief of Argument filed on 27/1/16. The Appellant also filed a Reply Brief on 6/4/16. The said Reply Brief having been filed out of time, was deemed properly filed on 9/5/16. The Appellant’s Reply to the Preliminary Objection is contained in the Reply Brief.

…………………….B…………………….

The Appellant A.C. Agu Esq. who is a legal practitioner, personally prepared his Brief of Argument. The 1st set of Respondents’ Notice of Preliminary objection and Brief of Argument were prepared by Omereonye Morgans Esq. Both the Appellant, i.e. A.C. Agu Esq. and Omereonye Morgans Esq. adopted their respective Briefs of Argument on 7/11/16 when the appeal was heard.
In the Appellant’s Brief of Argument, the following issues were placed before this Court for determination, viz
1. Whether the lower Court was right when it failed to consider the issue of the appropriateness of commencing suit No. K/101/13 by originating summons;
2. Whether the Court below was right in holding 
that the endorsement at the back of the originating summons which contains the name and address of the Appellant without the Appellant’s signature was valid proof of service of same on the Appellant, more so, when the affidavit controverting the affidavit of service of the originating summons was not challenged.
3. Whether the learned trial judge was right in Law in holding that this action (suit No. K/101/13) is properly filed in a representative capacity by the plaintiffs/1st-12th Respondent who are not members of the Union.
4. Whether the learned trial Court was right in holding that this case where the plaintiffs/1st  13th Respondents sued as shareholders and as equally representing majority of the shareholders, is a State High Court case.

In the 1st set of Respondent’s Brief of Argument, the following issues for determination were formulated:
1. Whether the suit of the plaintiffs is incompetent having been commenced by originating summons and in a representative capacity.
2. Whether the learned trial Court was right when it held that there was a valid and proper service on the Appellant; and
3. Whether the 
learned trial judge was right when he held that the Court had jurisdiction and that the matter is within the competence of the State High Court.
Perhaps it needs to be mentioned for the umpteenth time that learned Counsel should stick to the proper nomenclature of parties in an appeal when drafting grounds of appeal, framing issues for determination and referring to parties in their Briefs of Argument. At the appellate Court, there are no plaintiffs and defendants and learned Counsel must refrain from referring to the parties on appeal in that manner.
Now back to the issue. Although I find the issues formulated by the 1st Respondents as more succinct, I will nevertheless consider the appeal with reference to the issues raised by the Appellant since he being the party aggrieved, is in a better position to articulate the issues to highlight what irks him in the Ruling being challenged.
As earlier mentioned, the 1st set of Respondents filed a Notice of Preliminary objection. The objective of a preliminary objection is to put a stop to the hearing of an appeal at the outset. Where a preliminary objection is successful, there will be no need to consider the appeal. In the wake of a successful preliminary objection, an appeal, so to speak, is dead on arrival.
It is the Law that where a preliminary objection is successful, the Court will not hear the merits of the matter and the appeal will be Struck out. See A.G. OF THE FEDERATION V. ALL NIGERIA PEOPLES PARTY & ORS (2003) 18 NWLR (pt. 851) p.182. I will therefore now proceed to consider the preliminary objection.

…………………….C…………………….

The 1st set of Respondents notice of preliminary objection seeks the striking out/dismissal of the appeal on the following two grounds, viz
1. The Notice of Appeal is utterly and grossly incompetent being in violation of Section 242 of the 1999 Constitution (as amended) leave not having been sought nor obtained before the filing of the Notice
2. The Appellant’s Brief of Argument dated 26th day of September, 2015 and filed on the 28th of September, 2015 is grossly incompetent, not being anchored on a valid and competent Notice of Appeal.

In arguing the Preliminary Objection, the 1st set of Respondent’s learned Counsel, Omereonye Morgans Esq., submitted that by Section 242 of the 1999 Constitution, an interlocutory appeal is appealable with leave of Court. The case of AYU V. MADUGU (1999) 2 NWLR (Pt.171) p.93 at p.180 was cited in support. It was submitted that it is trite law that where a condition precedent has not been met, any action remains void.
The cases of NIGERIAN LABORATORY V. PACIFIC BANK (2012) 6 SCNJ (Pt.1) p.28 at p.50; CORPORATE IDEAL V. AJAOKUTA (2014) 2 SCNJ p204 at 246 and FBN PLC. V. TSA IND LTD. (2010) 38 WRN 1 at p.35-36 were cited in support.
Learned Counsel referred us to Order 6 Rule 6 of the Court of Appeal Rules, 2011 which gives this Court power to strike out a Notice of Appeal when such Notice is incompetent or for any other sufficient reason. It was contended that no leave of Court was sought or obtained before this appeal was filed. We were urged to strike it out. The case of ALAWIYE V. OGUNSANYA (2013) 6 NWLR (Pt.1348) p.570 was cited in support.
In his argument in response, the Appellant, A.C. Agu Esq, referred to Section 241 (1) (b) of the 1999 Constitution as amended. We were also referred to the definition of “decision” in Section 318 (1) of the Constitution. It was contended that the Order of the lower Court dismissing the preliminary objection of the Appellant is a decision as defined in Section 318 (1) of the Constitution.
The Appellant argued that although the appeal before the Court is an interlocutory appeal, it is based on jurisdiction which is a ground of law and therefore, the appeal is in accordance with the provisions of Section 241 (1) (b) of the Constitution and consequently, leave is not needed. What constitutes grounds of appeal the Appellant argued, has been explained in the case of OKOROCHA v. PEOPLES DEMOCRATIC PARTY (2015) ALL FWLR (Pt.786) p.530 at p.556. It was submitted that the preliminary objection was brought in bad faith. For the meaning of bad faith, the Appellant referred us to the case of SAVANNAH BANK PLC. V. CBN (2009) ALL FWLR (Pt.481) p.939 at p.999.
Now, it is trite law that an appeal against a decision of a High Court on interlocutory matters, lies in the Court of Appeal as of right, where it relates to questions of law. But where the appeal is on grounds other than of law, only then will prior leave of the High Court or the Court of Appeal be sought and obtained. Failure to obtain such leave would render the appeal incompetent. This is the position of the law as stated per Ogbuagu JSC in the case of UBN Plc V. SOGUNRO (2006) 16 NWLR (Pt.1006) p.504; (2006) 7 SC (Pt. 111) p.119. See also Section 241 (1) (b) of the 1999 Constitution as amended. A quick look at the grounds of appeal against the interlocutory ruling of the lower Court shows that the appeal against the decision of that Court relates to questions of law. That being the case, it is not necessary to seek prior leave to appeal. The preliminary objection therefore lacks merit and is hereby overruled.
I now turn to consider the appeal proper. Issue 1 as will be recalled, is whether the lower Court was right when it failed to consider the issue of the appropriateness of commencing the suit before the lower Court by originating summons instead of by way of a writ of summons. In arguing this issue, the

…………………….D…………………….

Appellant contended that the lower Court was wrong in law when it failed to consider and rule on the appropriateness of commencing the action before it by originating summons instead of by a writ of summons. It was contended that in the course of moving the preliminary objection at the lower Court, the Appellant argued that the facts before that Court were disputed and as such the matter should be heard by way of a writ of summons. It was submitted that the failure of the lower Court to consider and rule on the appropriateness of starting the action by writ of summons has caused a miscarriage of justice against the Appellant which calls for the intervention of the Appellate Court. It was submitted that an originating summons is only applicable in circumstances where there is no dispute on questions of fact or the likelihood of such dispute. We were referred to NIGERIAN REINSURANCE CORP. V. GUDJOE (2008) ALL FWLR (Pt.414) p.1532 at 1556. It was submitted that in this case, there was serious dispute as to the existence of the document the lower Court was asked to interpret.
In his argument in response, the 1st Respondents learned Counsel contended that Umuaka Development Union is an unregistered body of Umuaka citizens in Kano and has a constitution guiding its affairs. Learned Counsel launched into an explanation of how the Umuaka Development Union has been run and how it purchased a property 12 years ago on the basis of shares by individuals and groups. Delving further into what led to the law suit, the 1st Respondents’ learned Counsel narrated that trouble started when a 7 man Committee set up by the Union slashed the commission payable to the law firm of the Appellant which law firm was managing the Unions property, from 10% to 3%. Also constituting a problem he further narrated, was the fact that the Appellant upon assuming office as Chairman of the Union, among other things, unilaterally dissolved the shareholders meeting. Learned Counsel argued that since a proper interpretation of the Constitution of the Union was the issue brought before the lower Court, pleadings were not required. The case of AGBAKOBA V. INEC (2009) 24 WRN 1 at p. 39 was cited in support.
As will be recalled, the issue at hand is that the learned trial judge erred in law when he failed to consider the issue of the appropriateness of commencing the suit by way of an originating summons raised in the course of arguing the Preliminary Objection. The question that arises, it seems to me, is whether the Preliminary Objection which led to the Ruling now on appeal was on the appropriateness of commencing the action by way of an originating summons. A perusal of the subject notice of preliminary objection shows that the Preliminary Objection was never based on the appropriateness or otherwise of commencing the suit by an originating summons. In the Preliminary Objection in question, the Appellant was contending as follows:-
1. This honourable Court has no jurisdiction to entertain the application.
2. There is no cause of action.
3. The applicants have no locus standi to institute the action.

The grounds of the said Preliminary Objection were as follows:-
a. The Court vested with the jurisdiction relating to shares is the Federal High Court.
b. No writ or originating summons was served on the first Respondent.
c. Representative action is maintainable by people with common interest and common grievances and the applicants never listed out the names of the people they claim to represent.
d. The applicants in the motion on notice dated 1/3/13 are not members of Umuaka Development Union -the owners of 35 Abeokuta Road Sabon Gari.

Given that the Preliminary Objection has nothing to do with questioning the appropriateness of

…………………….E…………………….

instituting the action by originating summons, issue 1 under reference is bereft of any basis. A Court cannot decide a matter not placed before it. Issue 1 rests on nothing and is accordingly disregarded.
Issues 2 as will be recalled, is whether the Court below was right in holding that the endorsement at the back of the originating summons which contains the name and address of the Appellant without the Appellant’s signature, was a valid proof of service of same on the Appellant, more so when the affidavit controverting the affidavit of service of the originating summons was not challenged.
On this issue, the Appellant referred us to the decision of the lower Court and submitted that the learned trial judge was wrong to have compared the handwriting in the service process with other handwriting of the Appellant having found as a fact that the Appellant’s signature was not on it. It was submitted that the only reason why the Appellant signed for other Court processes but did not sign for the originating summons is because he was not served with the originating summons. The Appellant argued that he challenged the affidavit of service of the originating summons by filing a counter affidavit yet, the Court did not consider his counter affidavit in its Ruling. He cited the case of UKO V. EKPEYONG (2006) ALL FWLR Pt. 324 on the legal position where an affidavit of service is challenged by a counter – affidavit.
In his argument in response, the 1st set of Respondents’ learned Counsel submitted that the lower Court was satisfied from the endorsement on the processes served on the Appellant, that he was served with the originating summons. Learned Counsel referred us to the case of OLORUNYOLEMI V. AKHAGBE (2010) 15 WRN 23 at 34 where the Supreme Court held that proof of service is established by the evidence of receipt shown by the signature of the party personally served or his Counsel or an affidavit of service sworn to by the person who effected the service. It was submitted that a Court can look at its file in considering a matter before it. The case ofAGBAREH V. MIMRA (2008) 12 WRN p. 1 was also cited. On the comparison of signatures, we were referred to the case of TOMTEC NIGERIA LTD. V. FEDERAL HOUSING AUTHORITY (2010) 16 WRN 24 at 44.
I have carefully read the Ruling of the lower Court and I cannot agree with the Appellant that the lower Court did not consider his counter affidavit challenging the service of the originating summons on him. The lower Court did and that was why it looked at its file to consider signatures and writings on processes served on the Appellant and compared same with that in the originating summons before arriving at its decision that the Appellant was served with the originating summons. In MOBIL PRODUCING NIGERIA UNLIMITED V. LAWRENCE DICKSON HOPE (2016) LPELR 41191 (CA),this Court held that by the authoritative decision of the Supreme Court in the case of ADENLE V. OLUDE vis – a – vis Section 101 of the Evidence Act, a Court has a duty to take the initiative of making necessary comparisons of signatures in documentary exhibits before it before coming to a reasonable conclusion in the matter. See also NKEMDIRIM DIMGBA KALU V. JOHN J. IHEKA AGU AND ORS (2014) LPELR 22849 (CA). Section 101 (1) of the Evidence Act 2011 is very clear on the matter. It states that in order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person, may be compared with the one which is to be proved although that signature, writing, seal or finger impression has any other purpose. As the Evidence Act shows, it is not only signatures that can be compared. Pieces of writing can also be compared. The lower Court can therefore not be faulted when it held that “all these handwriting on all the documents are the same..” I cannot also fault the decision of the lower Court where, after doing the comparisons, it felt satisfied that the Appellant was served with the originating summons.

…………………….F…………………….

Issue 2 as will be recalled, is whether the learned trial judge was right in law in holding that the matter before it was properly filed in a representative capacity. On this issue, the Appellant tabulated the requirements for suing in a representative capacity. He cited the case of OFIA V. EJEM (2006) ALL FWLR (Pt.324) p. 1816 at 1825 1826. It was contended that the Ruling of the lower Court did not satisfy the essential ingredients for suing in a representative capacity. The Appellant submitted that while the plaintiffs at the lower Court were aggrieved, the rest of the Union members were not and consequently there was nothing in common between those who instituted the action and the rest of the members of the Union.
The 1st set of Respondents’ learned Counsel did not offer a submission on this issue.
Even from the submission of the Appellant, those who instituted the action at the lower Court were aggrieved. It is that their common grievance that constitutes the interest that binds them and entitles them to take out a representative action to ventilate their interest or grievance. Order 11 Rule 8 of the High Court (Civil Procedure) Rules of Kano State provides that where more persons than one have the same interest in one suit, one or more of such persons may with the approval of the Court, be authorised by the other persons interested to sue or to defend such for the benefit of or on behalf of all persons so interested.
Now, the interest must not be the interest of everyone, so long as it is an interest inter – se. As held in the case ofAYINDE V. AKANJI (1988) 1 NWLR (Pt. 68) p. 70, the dominant words in the rule on representative actions have to do with having the same interest in one cause or matter.
I now turn to the 4th and final issue which as will be recalled, is whether the trial Court was right in holding that the matter in which the plaintiffs before it sued as shareholders and as representing majority shareholders is a matter for the State High Court. On this issue, the Appellant contended that the proper Court to hear the matter is the Federal High Court since the plaintiffs before the lower Court were suing as shareholders and as representing the majority shareholders of the property known as No. 135 Abeokuta Road, Sabon Gari, Kano. We were referred to the definition of shareholder in the Oxford Advanced Learners Dictionary. The Appellant submitted that the Union is a cultural organisation and not a Company or an incorporation for commercial/industrial activities and that the union does not sell shares. It was submitted that the claim of the plaintiffs at the lower Court is anchored on shareholding in the property at No. 35 Abeokuta Road, Sabon Gari, Kano and that the proper Court to hear the case is the Federal High Court and not the State High Court. The Appellant referred us to Section 251 of the 1999 Constitution as amended.
In his argument in reply, the 1st set of Respondents’ learned Counsel submitted that the Appellant did not cite any case law in support of his position. It was submitted that a mere mention of the word “share” cannot oust the jurisdiction of the State High Court. The cases of SALIM V. CPC (2013) 2 SCNJ 245 at 262 and OLADIPO V. NIGERIAN CUSTOMS SERVICE BOARD (2009) 45 WRN 135 150 were cited.
I am rather surprised that the Appellant is contending that the matter is one in respect of which the Federal High Court has jurisdiction when that contention flies in the face of his own submission at page 16 of his Brief of Argument where he put forward the following argument:-
“The Union is a cultural organisation not a Company or an incorporation for commercial/industrial activities … The union does not sell shares and the plaintiffs did not buy any shares from the union”.
Having articulated the above argument so lucidly, his summersault at page 17 of his Brief is all the

…………………….G…………………….

more intriguing if not baffling. There he submitted thus:
“It is submitted that the claim of the plaintiff is anchored on share holding in the property called No.35 Abeokuta Road Sabon Gari Kano, and the proper Court to hear their action is the Federal High Court and not the State High Court Kano.”
I dare say that the submission at page 16 of the Appellant’s Brief of Argument quickly followed by the submission at page 17 of the same Brief is a classic example of self – contradiction. I am almost minded to invoke the maximallegans contraria non est audiendus (he who makes statements mutually inconsistent is not to be listened to) but I will stop short of that. A shareholder as defined in the Black’s Law Dictionary is one who owns or holds a share or shares in a company, especially a corporation. Thus, the use of the word ‘shareholder‘ by the Respondents which is in reference to a property is a loose use of the word. It has nothing to do with shareholding in a company or corporation which may possibly make it a matter within the exclusive jurisdiction of the Federal High Court under Section 251 of the 1999 Constitution as amended.
Having resolved all the issues in this appeal against the Appellant, it remains for me to formally state that I find that the appeal lacks merit. It is therefore hereby dismissed. N50,000.00 costs is awarded against the Appellant and in favour of the 1st set of Respondents.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother Obietonbara Daniel-Kalio JCA and am in agreement that this appeal lacks merit. I also dismiss it, with the costs as awarded by my learned brother.
AMINA AUDI WAMBAI, J.C.A.: I had a preview of the lead Judgment delivered by my learned brother, Obietonbara Daniel-Kalio, JCA who has considered all the salient issues in this appeal. I agree with his reasoning and conclusion that there is no merit in the appeal and I have nothing to add. In consequence thereof, I too dismiss the appeal and affirm the Judgment of the Lower Court.
I abide by the consequential Orders made in the lead Judgment.

Appearances

A.C. Agu, Esq. For Appellant

AND

Omereonje Morgans, Esq. For Respondent

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