Application for renewal of a writ can be made ex-parte
Application for renewal of a writ can be made ex-parte
By Editor
Application for renewal of a writ can be made ex-parte
CITATION: (2020) LPELR-49296 (CA)

In the Court of Appeal
In the Owerri Judicial Division
 Holden at Owerri On Tuesday, 21st January, 2020
Suit No: CA/OW/245/2013

Before Their Lordships:

JOSHUA OKPARA -Appellant(s)

The Imo State High Court had earlier on May 23, 2011 granted an order of Interlocutory Injunction in favour of the respondents as claimants, affirming the order of renewal of the originating process, which the appellant as defendant had challenged as having expired three years before the respondents sought an order for its renewal.  At the trial Court, the respondents (as claimants) had sought: (1) Declaration that the claimants are entitled to the Statutory Right of Occupancy over the land known as UZO AMAKOHIA EGBELU UMUIMEKA, or Plot 199 Works Layout, Owerri, Imo State. (2) The sum of N10 million damages for trespass. (3) Perpetual Injunction restraining the defendant, his privies, agents, workers and servants from further trespass on the land of the claimants.

The High Court in a well considered judgment found in favour of the claimants (Respondents on Appeal). Dissatisfied, the Appellant filed an appeal at the court of appeal against both the said interlocutory decision and the final judgment.

The Court determination the appeal on the issues, couched as follows: (1) Whether there was a competent originating process in this matter at the trial Court, upon which the Court conducted and determined the matter. (2) Whether the trial Court’s final judgment of March 11, 2013. in this matter was not against the weight of evidence, especially considering the fact that the said Court ignored and did not consider the Chart document from Lands Registry Owerri – Exhibit 7, which charted the res – Plot 199 Works Layout, Owerri into the expanse of land DW2, acquired from Declan Amadi – native of Umuimeka, Orji, Owerri, to whom appellant traced his Donor’s title. (3) Whether the trial court did not breach the appellant’s right to fair hearing, when on the March 11, 2013, before delivering its judgment, it ignored the appellant’s protest that the Respondents’ final written address was not served on him, for him to exercise his right of reply on points of law.

On issue one, the Appellant submitted that the life span of the originating process was 6 months, and where for any reason, it proved impossible to serve it on the defendant within its life-span, it can only be renewed by the application, brought before the originating process expires, not after. He relied on Order 6 Rules 6(1) & (2) and 7 of Imo State High Court (Civil Procedure) Rules, 2008, which also allows or permits only 2 renewals (making maximum renewals of 12months) of originating process.

Appellant submitted that when the said originating process expired, the trial Court, on April 16, 2010 made the order setting aside the illegal service of the process on the Appellant. But that the respondents neither applied to have the originating process renewed before its expiration nor applied for extension of time within which to renew it and it was wrong for the trial Court to dismiss the
Appellant’s challenge to the Suit on May 23, 2011, and to re-affirm its earlier order, renewing the originating process on October 22, 2010.

Furthermore, that the Respondents got the originating process renewed by an ex-parte order, thereby shutting out the appellant on the issue and denying him of fair hearing. He submitted that a decision reached in contravention of the right of fair hearing of a party is null and void, relying Section 36 of the Constitution of Nigeria, 1999; Tamiti Vs NSCB (2009) 7 NWLR (Pt.1141) 631.

On issue two, the Appellant submitted that assuming (without conceding) that the originating process on which the matter was conducted and determined, was competent, that the Respondents failed, woefully, to prove their claim of ownership of the land in dispute. He referred to the five different ways of proving title to land as per the case of Dannis Ofomata Vs Oyibojiobi Ofomata (2011) ALL FWLR (Pt.568) 827 at 830. That the Respondents had relied on four out of the five ways of proving title to land; and said that the onus was on them to prove any of the four ways, and that, on the strength of their case, especially, proving that they were in possession of the connected or adjacent plots of land to the land in dispute, in circumstances rendering it probable that being the owners of the adjacent plots, the land in dispute in addition, belonged to them. He submitted that the evidence by the respondents failed to establish their claim. That the respondents did not clearly trace the boundaries of the land in dispute; that their star witness contradicted his earlier evidence during cross examination.

On issue three, the Appellant submitted stating the events that occurred at the trial Court that the refusal by the trial Court to give the Appellant opportunity to reply to the Respondents’ final address, on points of law, constituted a serious breach of Appellant’s constitutional rights to fair hearing.

On issue one, the Respondents submitted that the Appellant knew from the onset that he had a weak case and so resorted to all legal chicanery and sharp practices at every stage of the trial. That while the appellant was manipulating the Court in this way; he was at the same time accelerating his construction work on the land in dispute, so that at the end he could plead, “completed act.” The respondents further submitted that it was in pursuance of this Plan that appellant, who was served personally with the originating process, denied being served and later filed the motion to set aside the service, saying that he was not served, despite being identified by a pointer (Counsel) who accompanied the Bailiff to the house where the appellant and his family lived. The Respondents submitted that the trial Judge acted rightly, when he allowed the renewal of the expired originating process, exercising his discretion, pursuant to Order 5 Rule 1(1) of the High Court Rules of Imo State and the case of Kolawole Vs Alberto (1989) 1 NWLR (Pt.98) 382; (1989) LPELR-1700 (SC). On the use of ex-parte application to renew the Originating process, the respondents submitted that the law permits that, where the interest of the Applicant alone is involved.

On issue two, the Respondents submitted that they had been in possession of the land, unchallenged, since when they inherited it, together with other pieces of land from their forebears, until 2006, when the Appellant trespassed on the land, and when challenged, resorted to threats and intimidation, using Police to arrest some of the respondents. On the issue of identity of the land, it was submitted that there was no issue about that as both sides had identified the land in dispute and that identifying the land by different names does not affect its identity.

On issue three, the Respondents submitted that the appellant’s counsel was served with the Respondent’s address; that he never made any complaint of non-service of the process at the date of the judgment; that the allegation of non-service of the respondents’ address was only carried in the Appellant’s brief and is fraudulent, just as the Appellant earlier fraudulently denied service of the originating process.

In resolving issue one, the Court agreed with the reasoning of the respondents, that the application for renewal of the writ of summons could only have been done by an ex-parte application, because it was only the interest of the respondents (as Claimants) that was to be determined by the application to renew the writ of summons. Relying on 7up Bottling Co. Vs Abiola & Sons Ltd (1989) 4 NWLR (Pt.114) 229 at 237; (1989) LPELR-20224 (CA) and Order 6 Rules 6 (2) & 7 of the High Court (Civil Procedure) Rules of Imo State, 2008 and Kolawole Vs Alberto (1989) 1 NWLR (Pt.98) 382; (1989) LPELR-1700 (SC).

According to the Court, the Appellant’s argument that the trial Court had no power to renew the originating process, after three years of its issue on February 22,2007 on the said November 22, 2010 going by Order 6 Rule 7 of the Court Rules is unfortunate, in the circumstances of this case, and would amount to celebrating or promoting mischief, and malicious use of the Court process. That the said writ remained alive and subsisting throughout the period of the contestation of the service of the process by the appellant and to hold otherwise would mock or negate the whole essence of the struggle to set aside the service of the writ of summons on the appellant. Thus, technically, the originating process only expired, when the trial Court pronounced that the appellant was not properly served with the process, and set aside the service on October 16, 2010.That the respondents had promptly applied to renew the writ of summons, upon the order of October 16,2010, setting aside the service of same on the appellant.

And when the trial Court ordered the renewal of the said Originating process (Writ of Summons) on November 22, 2010, the order breathed life into the said Writ of Summons and the subsequent service of the same on the Appellant by substituted means was proper, in the circumstances. That since a renewed originating process, like an amended process, takes effect and dates back to when the original process was filed the appellant cannot talk about the suit being statute barred.

As regards the issue and grounds of appeal raised on the interlocutory decision of the trial Court, the Court of Appeal held that the appellant, who failed to appeal against the said interlocutory decision, within 14 days of the decision, ought to have sought/obtained the leave of the Court of Appeal to appeal against that decision, along with the Appeal against the final judgment. See Alaribe & Anor Vs Lawal & Ors (2019) LPELR – 47065 (CA); and Ekemezie Vs Ifeanacho & Ors (2019) LPELR – 46518 SC. The said issue was therefore found to be incompetent and thereby struck out.

In resolving issue two, the Court stated that the law is trite that mere production of document of title to land is not conclusive proof of title, where the source of the title document or authority to issue same, is wanting in legitimacy. The Court resolved that it cannot fault the decision of the trial Court, that the respondents had established their claim.

In resolving issue three, the Court stated that the Appellant himself anticipated the futility of this issue when his Counsel alleged in what appears as blackmailing the trial Court that he only saw the Respondents’ address on the date of the judgment. According to the Court, there is nothing in the Records of Appeal to support the appellant’s claims that he was not served with the Respondents’ address and that he protested and sought to be allowed to react to the respondents’ address (which he allegedly saw on the date of judgment) and was refused, thereby violating his right of fair hearing and that since parties are bound by the Records of Appeal in any matter/question or issue that touches on the Appeal, the Court held that this issue, is outside the catchment of the Records of Appeal and appears to be wishful thinking of Appellant and/or some mischief, to discredit the judgment. The Court relied on Abaribe Vs Nkwonta & Ors (2015) LPELR – 25701 (CA) and concluded that this issue was contrived to blackmail the trial Court. It was declared as incompetent and was struck out.

In conclusion, the Court dismissed the appeal for lacking merit.
-For Appellant(s)
-For Respondent(s)
Compiled by LAW PAVILION

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