(2016) lpelr-41510(ca) henry iloka 3. chief i. i. ugorji 4. chief kenneth ilo 5. mr. felix n. ekene...
TRANSCRIPT
UGWU & ORS v. ALAEBO & ORS
CITATION: (2016) LPELR-41510(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON FRIDAY, 18TH MARCH, 2016Suit No: CA/E/98B/2010
Before Their Lordships:
TOM SHAIBU YAKUBU Justice, Court of AppealEMMANUEL AKOMAYE AGIM Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal
Between1. CHIEF J. OKWU UGWU2. MR. BENNETH UNAKWE3. MR. GILBERT IKE4. MR. ELIAS OBIAGWU(For themselves and on behalf of the entireUmuomaku Community of Orumba South LocalGovernment Area)
- Appellant(s)
And1. CHIEF J. ALAEKE ALAEBO2. CHIEF HENRY ILOKA3. CHIEF I. I. UGORJI4. CHIEF KENNETH ILO5. MR. FELIX N. EKENE6. MR. DENNIS NWANKWO7. THE MILITARY ADMINISTRATOR OF ANAMBRASTATE8. THE ATTORNEY GENERAL AND COMMISSIONERFOR JUSTICE ANAMBRA STATE.
- Respondent(s)
RATIO DECIDENDI
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510(
CA)
1. ACTION - ORIGINATING PROCESS(ES): Whether an originating process must be validto confer jurisdiction on a Court"A suit can be said to have come before the Court by a due process of law only when itis initiated by an originating process validly issued in accordance with the relevant lawsand rules of Court. A valid originating process is a condition precedent to theassumption of jurisdiction by the Court. In the case on appeal, the case was initiated byan originating summons. By virtue of the provisions of Order 5 Rules 12(2) and 27 ofAnambra State High Court (Civil Procedure) Rules, 1988, issue of an originatingsummons takes place upon its being signed by the Registrar in the Court where the suitis being commenced. Without the registrar's signature and seal of the Court, there is noissuance of the originating summons. Where the registrar fails to sign and seal anoriginating summons, the Court's jurisdiction is not activated. Therefore failure to signand seal an originating summons is not an irregularity, it is a condition precedent to theexercise of jurisdiction by the Court. See NWABUEZE VS. OBI-OKOYE (1988) 3 NSCCPAGE 53, KIDA VS. OGUNMOLA (2006) ALL FWLR (PT. 327) PAGE 402, ONUN OTU ECHUIGIRIGA VS. ELDER EFFIONG OKON BASSEY & ORS. (2013) LPELR - 20346 (CA)."PerBOLAJI-YUSUFF, J.C.A. (Pp. 11-12, Paras. B-A) - read in context
2. ACTION - ORIGINATING PROCESS(ES): Effect of a challenge to the validity of anoriginating process on the jurisdiction of the Court"If an originating process is found to be incompetent, it is a fundamental issue whichgoes to the root of the case and ultimate the jurisdiction of the Court. In law, a challengeto the validity of an originating process is a challenge to the jurisdiction of the Court andthe exercise of its adjudicatory power over a matter brought before it."Per BOLAJI-YUSUFF, J.C.A. (P. 12, Paras. D-F) - read in context
3. ACTION - ORIGINATING PROCESS(ES): Effect of a challenge to the validity of anoriginating process on the jurisdiction of the Court"I have earlier stated the importance of an originating process to the activation a Court'sjurisdiction. A fundamental defect in the validity of an originating process which affectsits competence robs the Court of its jurisdiction to adjudicate on any matter broughtbefore it."Per BOLAJI-YUSUFF, J.C.A. (P. 14, Paras. C-D) - read in context
4. ACTION - ORIGINATING PROCESS(ES): Effect of a challenge to the validity of anoriginating process on the jurisdiction of the Court"ORDER 5 Rule 12 (2) of the rules of Court provides that every originating summonsshall be signed, sealed and filed in the registry and when so sealed and filed shall bedeemed to be issued. Put the other way, an originating summons is deemed not issueduntil it is sealed. Failure to seal an originating summons renders it invalid andincompetent. See IGIRIGA VS. BASSEY & ORS. (SUPRA). I have examined the originatingsummons on pages 3 and 81 of the record of appeal which are photocopies. It is signedand dated by the registrar but I cannot find any seal of the Court. There is nothing onthe face of the summons to show that it was sealed. The defect is not an irregularity ora technicality which can be waived. It is fundamental to the suit and the jurisdiction ofthe Court. Where an originating process is incurably defective, there is no foundationupon which the Court can exercise its adjudicatory power. A party cannot byacquiescence or waiver confer jurisdiction on the Court where the jurisdiction has notbeen properly activated by an originating process validly issued in accordance with therelevant statute and rules of Court. The originating summons not having been sealed asstipulated by Order 5 Rule 12 (2) of the High Court (Civil Procedure) Rules of AnambraState, 1988, the jurisdiction of the Court below was not properly activated and the Courtbelow should not have adjudicated on the matter."Per BOLAJI-YUSUFF, J.C.A. (Pp. 19-21,Paras. F-A) - read in context
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5. ACTION - ORIGINATING SUMMON(S): When to adopt the originating summonsprocedure for the commencement of an action"?The situations in which the procedure of an originating summons may be used havebeen fairly settled to warrant any long arguments or controversy. It is firmly establishedthat the procedure should be used only where there is no dispute as to facts or there isnot likely to be any dispute or hostility. It is not to be used for contentious or hostilematters or where facts are likely to be in dispute. Among the legion of authorities on thisprinciple, See FAMFA OIL LTD. VS. A.G FEDERATION (2003) 18 NWLR (PT. 852) PAGE 453AMASIKE VS. REG. GEN. VS C.A.C. (2010) 13 NWLR (PT. 1121) PAGE 337, PAM VS.MOHAMMED (2008) 16 NWLR (PT. 1112) 1."Per BOLAJI-YUSUFF, J.C.A. (Pp. 23-24, Paras.F-D) - read in context
6. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be soughtand obtained before fresh point can be raised on appeal and the exception(s) thereof"The law is settled that an appellant has no right to raise a fresh issue not canvassedbefore the Court below in an appeal unless the leave of the Court is sought andobtained. See DANGACI OF DERE VS. DANGACI OF EBWA (2006) 7 NWLR (PT. 979) PAGE382. The exception to the general rule is where the fresh issue being raised is an issueof jurisdiction. Where an issue of jurisdiction is raised as a fresh point in an appeal, theappellant need not obtain the leave of the Court. See MOSES VS. STATE (2006) 11 NWLR(PT. 992) PAGE 458. In AGBATI VS. NIG. NAVY (2011) 4 NWLR (PT. 1236) PAGE 175 at207-208 (G-B) the Supreme Court stated thus:"An appellant is allowed to raise the question of jurisdiction on appeal without the leaveof Court whereas ordinarily a fresh issue can only be raised on appeal with the leave ofCourt sought and obtained hence the issue becomes incompetent and liable to be struckout. I shall repeat with emphasis that an appellant does not require leave to raise theissue of jurisdiction, as it can be raised at any stage of the proceedings and in anymanner. The issue of jurisdiction or competence when raised must be one which mustbe capable of being disposed of without the need to call additional evidence. The issueof jurisdiction being radically fundamental to adjudication in the Nigerian legal systemmust be properly raised before the Court can rightly entertain that point. Where thequestion involves a substantial point of law, substantive or procedural and it is apparentthat it will not be necessary to open up further evidence which would affect thedecision, the Court has a duty to allow the question to be raised and points taken so asto prevent an obvious miscarriage of justice."Per BOLAJI-YUSUFF, J.C.A. (Pp. 8-10, Paras.E-B) - read in context
7. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Principle of fair hearing asenshrined in the provisions of Section 36(1) of the Constitution"The appropriate starting point for the consideration of the issue of fair hearing is theConstitution of the Federal Republic of Nigeria, 1999 (as amended). It is the Grund Normand the source of the citizen's right to fair hearing. No law or procedure which isinconsistent with its provisions can stand or override it. Section 36 (1) of theConstitution provides that:"in the determination of his civil rights and obligations including any question ordetermination by or against any government or authority, a person shall be entitled to afair hearing within a reasonable time by a Court or other tribunal established by law andconstituted in such manner as to secure its independence and impartiality." It is certainthat the provisions of Section 36 of the Constitution applies not only to a Court or atribunal established by law but also to any panel or body set up to determine the civilright or obligation of a citizen whether administrative, judicial, quasi judicial orexecutive. See JUBRIL VS. MIL. ADMIN. KWARA STATE (2007) 3 NWLR (PT. 1021) PAGE357, BAKARE VS. L.S.C.S.C. (1992) NWLR (PT. 262) PAGE 641. NJC VS. YARUMA (2014)LPELR - 24208 (CA)."Per BOLAJI-YUSUFF, J.C.A. (Pp. 26-27, Paras. C-C) - read in context
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8. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Attributes of the principle of fairhearing"In KOTOYE VS. C. B. N. (1989) 1 NWLR (PT. 98) PAGE 419 AT 444, The Supreme Courtstated the attributes of fair hearing as follows:"Clearly whenever the need arises for the determination of the civil rights andobligations of every Nigerian, this provision guarantees to such a person a fair hearingwithin a reasonable time. Fair hearing has been interpreted by the Courts to besynonymous with fair trial and as implying that every reasonable and fair mindedobserver who watches the proceedings should be able to come to the conclusion thatthe Court or other tribunal has been fair to all the parties concerned. See on thisMohammed v. Kano N. A (1968) 1 All N.L.R. 424, at p. 426. There are certain basiccriteria and attributes of fair hearing, some of which are relevant in this case. Theseinclude:(i) that the Court shall hear both sides not only in the case but also in all material issuesin the case before reaching a decision which may be prejudicial to any party in the case.See Sheldon v. Broomfield Justices (1964) 1 Q. B. 578.(ii) that the Court or tribunal shall give equal treatment, opportunity and considerationto all concerned. See Adigun v. Attorney-General, Oyo State & Ors. (1987) 1 NWLR (Pt.53) 678.(iii) that the proceedings shall be held in public and all concerned shall have access toand be informed of such a place of public hearing and(iv) that having to all the circumstances in every material decision in the case, justicemust not only be done but must manifestly and undoubtedly be seen to have beendone: R. V. Sussex Justices, Exparte McCarthy (1924) 1 K. B. 256, AT P. 256; Deduwa &Ors. v Okorodudu (1976) 10 S.C 329. Thus, fair hearing in the context of Section 33 (1)of the Constitution of 1979 encompasses the plenitude of natural justice in the narrowtechnical sense of the twin pillars of justice - audi alteram partem and nemo judex incausa sua - as well as in the broad sense of what is not only right and fair to allconcerned but also seems to be so."See also GARBA & ORS VS. THE UNIV. OF MADUGRI (1986) 1 NWLR (PT. 18) PAGE 550AT 617. In order to comply with the requirement of fair hearing all the parties to adispute must be heard at every material stage of the proceeding and on every materialaspect of the dispute before the Court or the body adjudicating on or settling thedispute hands down a decision. While it is the law that fair hearing does not mean that itis mandatory for the panel to take oral evidence from a party especially where a partyhas presented documentary evidence in support of his case, it is also the law that thepanel or the body investigating a matter or adjudicating on a dispute such as theBoundary Committee herein must not receive evidence or representation behind theback of any of the parties. See OLATUNBOSUN VS. NISER (1988) NWLR (PT. 80) PAGE25, AGBAHOMOVO VS. EDUYEGBE (1999) 3 NWLR (PT. 594) PAGE 170."Per BOLAJI-YUSUFF, J.C.A. (Pp. 28-31, Paras. D-A) - read in context
9. COURT - JURISDICTION: Conditions that must be satisfied before a Court is competentto exercise its jurisdiction in respect of any matter"It is settled by a plethora of cases that the following conditions must exist before aCourt can exercise jurisdiction on a matter brought before it for adjudication:(a) The Court must be properly constituted as regards the number and qualification ofits members on the bench and no member is disqualified for one reason or another;(b) The subject matter of the case is within its jurisdiction and there is no feature in thecase which prevents the Court from exercising its jurisdiction; and(c) The case coming up before the Court was initiated by due process of law, and uponfulfilment of any condition precedent to the exercise of jurisdiction."Per BOLAJI-YUSUFF,J.C.A. (Pp. 10-11, Paras. D-A) - read in context
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10. COURT - COURT OF APPEAL: Conditions that must be met before the powers of aCourt of Appeal can be exercised"The appellants' counsel urged the Court to exercise its powers under Section 15 of theCourt of Appeal Act and determine the issue not considered by the Court below. Section15 of the Court of Appeal Act provides as follows:"The Court of Appeal may, from time to time, make any order necessary for determiningthe real question in controversy in the appeal, and may amend any defect or error in therecord of appeal, and may direct the Court below to inquire into and certify its findingson any question which the Court of Appeal thinks fit to determine before final judgmentin the appeal, and may make an interim, order or grant any injunction which the Courtdirect any necessary inquiries or accounts to be made or taken, and, generally shallhave full jurisdiction over the whole proceedings as if the proceedings had beeninstituted in the Court of Appeal as Court of first instance and may re-hear the case inwhole or in part or may remit it to the Court below for the purpose of such re-hearing ormay give such other directions as to the manner in which the Court below shall dealwith the case in accordance with the powers of that Court's appellate jurisdiction, orderthe case to be re-heard by a Court of competent jurisdiction."?In EZEIGWE V. NWAOWULU & ORS. (2010) 4 NWLR (PT.1183)PAGE 159 AT 203-204(G-B), the Supreme Court stated the conditions must be present before the Court of Appealcan exercise its power as stated above as follows:"For the provision to apply, the following conditions must exist, to wit:(a) that the lower Court or trial Court must have the legal power to adjudicate in thematter before the appellate Court can entertain it;(b) that the real issue raised by the claim of the appellant at the lower Court or trialCourt must be seen to be capable of being distilled from the grounds of appeal;(c) that all necessary materials must be available to the Court for consideration;(d) that the need for expeditious disposal of the case or suit to meet the ends of justicemust be apparent on the face of the materials presented: and(e) that the injustice or hardship that will follow if the case is remitted to the Courtbelow must be clearly manifest."All the above conditions must co-exist before the Court can exercise its power."PerBOLAJI-YUSUFF, J.C.A. (Pp. 40-42, Paras. D-D) - read in context
11. COURT - DUTY OF COURT: Duty of an Appeal Court to consider all issues fordetermination raised before it"In line with the firmly established principle that it is the duty of this Court as anintermediate appellate Court to consider and pronounce on all issues properly raisedbefore it to give the final Court an idea of its reasoning and position on those issues, Iwill proceed with the consideration of other issues."Per BOLAJI-YUSUFF, J.C.A. (P. 18,Paras. A-C) - read in context
12. INTERPRETATION OF STATUTE - "SHALL": Interpretation of the word "shall" as usedin a statute"The law is settled that the use of the word "shall" in a statutory provision or rules ofCourt connotes a mandatory compliance with the provisions of the statute or rules ofCourt, it is not permissive. It gives no room for discretion unless the context suggestsotherwise. See NWANKWO VS. YAR'ADUA (2010) 12 NWLR (PT. 1209) PAGE 518,ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) PAGE 65."Per BOLAJI-YUSUFF, J.C.A. (P.19, Paras. D-F) - read in context
13. INTERPRETATION OF STATUTE - "OR": Interpretation of the word "or" when used in astatute"The Word "Or" when used in a statute is usually construed as disjunctive and asseparating two distinct situations and or donating an alternative."Per BOLAJI-YUSUFF,J.C.A. (P. 21, Paras. D-E) - read in context
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14. INTERPRETATION OF STATUTE - LITERAL RULE OF INTERPRETATION: Approachof Court in interpreting the clear and unambiguous words of a statute"?The law is settled that in the interpretation of a statute where the wordings used inthe statute are clear and unambiguous, the words must be given their literal andordinary meaning. The entire provisions of the statute must be read together to get thereal intention of the law maker. It is also the law that the Court must confine itself to theprovision of the statute; the Court must not add, delete or subtract any part of thelaw."Per BOLAJI-YUSUFF, J.C.A. (Pp. 35-36, Paras. F-B) - read in context
15. JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: Whether anAppellate Court can set aside the decision of a lower Court which is right but based onwrong reasons"...it is trite that an appellate Court will not set aside a correct decision of a trial Courtbecause it is based on wrong reasons. An appellate Court is concerned with thecorrectness of a decision and not the reasons for the decision. See ILUBUYA V. DIKIBO(2010) 18 NWLR (PT.1225) PAGE 627."Per BOLAJI-YUSUFF, J.C.A. (P. 40, Paras. B-D) -read in context
16. JURISDICTION - OUSTER OF JURISDICTION: Preclusion of a court's decision on thevalidity of a Decree or Edict"Section 1 (1) & (2) of the Federal Military Government (Supremacy and Enforcement ofPowers) Decree 1994 provides as follows:(1)"the preamble hereto is affirmed and declared as forming part of this Decree.(2) it is hereby declared also that :(a) for the efficacy and stability of the Government of the Federal Republic of Nigeria;and(b) with a view to assuring the effective maintenance of the territorial integrity ofNigeria and the peace, Order and good government of the Federal Republic of Nigeria:-(i) no civil proceedings shall lie or be instituted in any Court for or on account of or inrespect of any act, matter or thing done or purported to be done under or pursuant toany Decree or Edict and if such proceedings are instituted before, on or after thecommencement of this Decree the proceedings shall abate, the (sic) discharged andmade void;(ii) the question whether any provision of chapter IV of the Constitution of the FederalRepublic of Nigeria 1979 has been, is being or would be contravened by anything doneor purported to be done in pursuance of any Decree shall not be inquired into any Courtof law and accordingly, no provision of the Constitution shall apply in respect of anysuch question."?It is clear from the above that the decree was made for the purpose expressly statedtherein which is to oust the jurisdiction of the Court on any suit filed to challenge theDecree or Edict made for the stability of the Government of the Federal Republic ofNigeria and effective maintenance of the territorial integrity of Nigeria, peace, order andgood government of Nigeria. There is nothing in the claim of the 1st - 6th respondentsrelating to any act or matter or anything done under any Decree or Edict made for theefficacy or stability of the Government of Nigeria or affecting maintenance of theterritorial integrity of Nigeria, peace, order and good governance. The 1st - 6threspondents' claim is simply about ownership of land. The Decree does not apply orextend to an intervention and a decision of the Government to approve therecommendation of a Committee set up to determine any boundary dispute betweenLocal Governments or Communities with a view to settling the dispute. See ABACHA VSFAWEHINMI (2000) 6 NWLR (PT. 660 Page 228."Per BOLAJI-YUSUFF, J.C.A. (Pp. 36-38,Paras. B-B) - read in context
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17. JURISDICTION - OUSTER OF JURISDICTION: How a statute seeking to deprive a courtof its jurisdiction is to be construed"On the interpretation of a statute ousting the jurisdiction of a Court, the Supreme Courtstated thus in MILITARY GOV., ONDO VS. ADEWUMI (1988) 3 NWLR (PT. 82) PAGE 280 AT295: "As a general principle, even where there is a statute purporting to oust thejurisdiction of a Court, the language of any such statute will be jealously watched by theCourt: See: Re Vexatious Actions Act 1969, R E Boaler (1915) 1 K.B.21,AT P.36;PyxGranite Co.Ltd. v. Ministry of Housing & Local Government (1960) A.C.260, H.L.;Barclays Bank of Nigeria Ltd. V. Central Bank of Nigeria (1976) 6 SC.175, at p.170. H.,L.,it was held that where a provision purporting to oust the jurisdiction of the Court isreasonably capable of having two meanings, that meaning shall be preferred which iscapable of preserving the ordinary jurisdiction of the Court."Per BOLAJI-YUSUFF, J.C.A.(Pp. 38-39, Paras. B-A) - read in context
18. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person tosign a legal process/effect of legal documents signed/franked by a law firm"The law is settled that any Court process prepared by a Legal Practitioner must besigned by that Legal Practitioner and the name of the Legal Practitioner must be clearlystated. The law is also settled that any Court process signed in the name of a firm ofLegal Practitioners is incompetent."Per BOLAJI-YUSUFF, J.C.A. (P. 12, Paras. C-D) - read incontext
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19. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person tosign a legal process/effect of legal documents signed/franked by a law firm"In the case on appeal, Order 5 Rule 27 of the High Court (Civil Procedure) Rules ofAnambra State, 1988 provides that an originating process shall be prepared by a partyor his Legal Practitioner. Though it is not expressly stated but it is implied thatoriginating summons shall be signed by whoever prepares it. The originating summonsin the instant appeal was prepared by the 1st - 6th respondent's Legal Practitioner. It isstated on the face of the summons that it was taken out by Messrs Kehinde Sofola &Co., Legal Practitioners. There is a signature on top of Messrs. Kehinde Sofola & Co.,Legal Practitioners. It is now firmly established that a law firm is not a Legal Practitionerand a firm cannot sign any Court process. Any process prepared by a Legal Practitionermust be signed by the Legal Practitioner as known to law. That is a Legal Practitionerdefined in Section 24 of the Legal Practitioner Act as "a person entitled in accordancewith the provisions of this Act to practice as a barrister and solicitor, either generally orfor the purposes of any particular office or proceedings." Any Court process signed inthe name of a law firm and without stating the name of the particular Legal Practitionerwho signed it is invalid, incompetent and a nullity. The originating summons havingbeen signed in the name of a law firm, Kehinde Sofola & Co. is a nullity. See HAMZATVS. SANNI (2015) 5 NWLR (PT. 1453) PAGE 486. The 1st - 6th respondents' counselstated that the signature on top of Kehinde Sofola & Co. is "Kehinde Sofola." Thatstatement in my view is tantamount to giving evidence from the bar and in an address.The law is settled that an address no matter how brilliant is not a substitute for credible,cogent and admissible evidence upon which any Court is entitle to act. I do not knowhow counsel arrived at the conclusion that the signature is that of "Kehinde Sofola" andthat he is a Legal Practitioner. By virtue of Section 2 (1) of the Legal Practitioners Act, aperson shall be entitled to practice as a barrister and solicitor if, and only if, his name ison the roll. Whether or not a person's name is on the roll is a matter of fact which canonly be established cogent and credible evidence. It is certainly not one of the matterslisted under Section 122 (1) of the Evidence Act which any Court is entitle to takejudicial notice of. Section 122 (4) of the Evidence Act, 2011 provides that "if the Court iscalled upon by any person to take judicial notice of any fact, it may refuse to do sounless and until such person produces any such book or document as it may considernecessary to enable it to do so. Section 94 (1) provides that "evidence that a personexists having the same name, address, business or occupation as the maker of adocument purports to have, is admissible to show that such document was written orsigned by that person." The effect of the provisions of Section 2 (1) and 24 of the LegalPractitioners Act, Section 94 (1) and 122 (1) of the Evidence Act, 2011 combined is thatunless it is established that the name ''Kehinde Sofola" is on the roll of persons entitledto practice as a barrister and solicitor and that it is the person whose name is on theroll, that signed the originating summons, this Court will be engaging in speculation byconcluding that on the face of the summons, it was signed by a Legal Practitioner knownto law. In view of the settled position of the law, I hereby hold that the originatingsummons having been signed by a firm of Legal Practitioners contrary to the provisionsof Order 5 Rule 27 of the High Court (Civil Procedure) Rules of Anambra State, 1988, theoriginating process is incompetent and the suit has not been initiated by due process oflaw. The Court below had no jurisdiction to entertain the suit."Per BOLAJI-YUSUFF, J.C.A.(Pp. 14-18, Paras. E-A) - read in context
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20. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person tosign a legal process/effect of legal documents signed/franked by a law firm"The law has been well settled upon the authority of Okafor & 2 Ors v. Nweke & Ors(2007) 10 NWLR (pt. 1043) 521; (2007) 3 SCNJ 185; (2007) All FWLR (pt. 368) 1016, tothe effect that Court processes must be signed by a Legal Practitioner who has beenenrolled to practice law in Nigeria, by virtue of Section 2(1) of the Legal Practitioners'Act, 1990. Further see Mrs. Olayinke Adewunmi & Ors v. Mr. Amos Oketade (2010) 3SCNJ (pt. II) 368; SLB. Consortium v. Nigeria National Petroleum Corporation (2011) 4SCNJ 211 at 221-223; Nigerian Army v. Samuel (2013) 7 SCNJ (pt. 1)161. Therefore, inthe circumstances of the present appeal, where the originating process at the trial HighCourt was signed by an unknown person, for the law firm of Kehinde Sofola & Co., sucha process of Court, is unarguably, incompetent and liable to be struck out."Per YAKUBU,J.C.A. (P. 43, Paras. A-F) - read in context
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M I S I T U R A O M O D E R E B O L A J I - Y U S U F F ,
J.C.A.(Delivering the Leading Judgment): By an
originating summons filed on 16/10/94, at the Anambra
State High Court, the 1st – 6th respondents sought the
following reliefs against the appellants and the 7th and 8th
respondents:
“1. A declaration that the decision of the Anambra
state Boundary Committee to which the Anambra
State Government gave approval which was
communicated to the plaintiff in the letter of the
Secretary to the State Government dated November
11, 1997 is null and void and of no effect whatsoever.
2. An order setting aside the said decision of the
Anambra State Boundary Committee and the approval
thereon given by the Anambra State Government
communicated in the said letter dated November 11,
1997.
3. A declaration that neither the said State Boundary
Committee nor the said State Government has any
power to set aside the decision of the Supreme Court
of Nigeria (now the High Court) in Suit No. O/19/48
and the decision of the West African Court of Appeal
in Appeal No. 3880.
4. A perpetual injunction restraining the Defendants,
their agents, privies, successors in title, and
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any person claiming through them from interfering
with the Plaintiffs’ right of ownership and enjoyment
of the landed property adjudged to be theirs in the
Suit No. O/19/1948 and previous suits, and in
particular from demarcating the Boundary of the said
land by concrete pillars and other substances of a
permanent nature.”
Parties filed and exchanged affidavits and written address.
The Court in a considered judgment delivered on 7th May,
2009 entered judgment in favour of the 1st – 6th
respondents as follows:
(a) “The decision of the Anambra State Boundary
Committee to which the Anambra State Government
gave approval which was communicated to the
Plaintiffs in the letter of the Secretary to the State
Government dated November 11 1997 is null and void
and of no effect.
(b) The said decision of the Anambra State Boundary
Committee and the approval thereon given by the
State Government are hereby set aside.
I make no order as to cost.”
The appellants being dissatisfied with the judgment
appealed to this Court on six (6) grounds of appeal via a
notice of appeal filed on 30th July, 2009 containing Four (4)
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grounds of appeal and two additional grounds of appeal
filed on 3rd February, 2016 and deemed as properly filed
and served the same day. The six grounds of appeal are as
follows:
GROUND 1: ERROR IN LAW
The learned trial judge erred in law when
he held that it was appropriate to commence the
proceedings before him by originating summons.
GROUND 2: ERROR IN LAW
The learned trial judge erred in law when he held that
the State Boundary Committee did not accord fair
hearing to the Plaintiffs/Respondents by the letter of
the Secretary to the State Government dated
November 11, 1997 and this occassioned a
miscarriage of justice.
GROUND 3: ERROR IN LAW
The learned trial judge erred in law when he assumed
jurisdiction to determine the suit contrary to Section
1 (2) (b) (i) of the Federal Military Government
(Supremacy and Enforcement of Powers) Act and
thereby occassioned a miscarriage of justice.
GROUND 4: ERROR IN LAW
The learned trial Judge erred in law when he failed to
consider and resolve all the issues raised by the
parties in the suit.
GROUND 5: ERROR IN LAW
The learned trial Judge erred in law by
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hearing and determining suit No. AG/108/98 without
jurisdiction, since the originating summons did not
comply with Order 5 Rule 27 High Court Rules, 1988
of Anambra State applicable in 1998, which stipulates
that “issue of an originating summons takes place
upon its being signed by the Registrar in the Court
where the suit is being commenced”, and also did not
comply with Order 5 Rules 12 (2), Order 5 Rule 23 of
the High Court Rule of Anambra State 1988, and
Order 5 Rule 25 (2).
GROUND 6 (Additional Ground) ERROR IN LAW
The learned Trial Judge erred in law by hearing and
determining Suit No. AG/108/98 without jurisdiction,
since the originating summons was only signed by
Messrs Kehinde Sofola & Co. Who is not a Legal
Practitioner known to law and not signed by the
Registrar in the Court where the suit was commenced
and other processes such as:-
(a) The notice to on the applicants’ further affidavit
in support of the originating summons dated 14th
December, 1998
(b) Plaintiffs/Respondents Written Address, and
(c) Plaintiffs Reply Written Address to the 1st – 6th
Defendants’ Counter –
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CA)
Affidavit.”
Counsel to both parties filed and exchanged briefs of
argument. The appellants’ amended brief of argument was
filed on 19th November, 2013 and deemed properly filed
and served on 3rd February, 2016. The appellants
formulated the following issues for determination:
(1) “Whether this suit could be properly initiated and
resolved by originating summons rather than a writ of
summons considering the complexities and
conflicting affidavits and Counter-Affidavits with the
Exhibits before the Court below? (Ground 1).
(2) Whether the failure of the State Boundary
Committee to hear oral evidence of the disputing
communities after receiving documentary evidence
and a visit to the locus in quo amounted to a breach
of the principle of fair hearing. Ground 2.
(3) Whether the lower Court was wrong to have
assumed jurisdiction to determine the suit contrary to
Section 1 (2) (b) (i) of the Federal Military
Government (Supremacy and Enforcement of Powers)
Act and thereby occassioned miscarriage of justice
(Ground 3).
(4) whether the trial Court discharged his duty to
consider and pronounce on all the issues submitted to
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CA)
him for adjudication by the parties and if not,
whether the Court of Appeal can look into it? (Ground
4).
(5) Whether the lower Court erred in law by hearing
and determining Suit No. AG/108/98 without
jurisdiction, since the originating summons did not
comply with Order 5 Rule 27, Order 12 (2) and Order
5 Rule 23 of the High Court Rules of Anambra State,
1998. (Ground 5 – additional Ground).
(6) Whether the lower Court heard and determined
suit No. Ag/108/98 without jurisdiction since the
originating summons and some other Court processes
were signed by Messrs Kehinde Sofola & Co. Who is
not a legal practitioner known to law? (Ground 6 –
Additional Ground).’’
The 1st – 6th respondent’s brief of argument was filed on
11th October, 2011 and deemed as properly filed and
served on 3rd February, 2016. The six issues formulated by
the 1st – 6th respondents are similar to the issues
formulated by the appellants, I need not repeat them. The
7th and 8th respondents did not file any brief in this appeal
because they filed their own separate appeal. The 1st – 6th
respondents raised a preliminary objection
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to the additional grounds of appeal on the ground that
those grounds of appeal raise new issues which were not
canvassed in the Court below and no leave was obtained to
raise the issues. In accordance with the principle guiding
consideration and determination of such objection, the
objection will be considered and determined before going
into the substantive issues.
It is the contention of the 1st – 6th respondents that the
appellants having raised new issues of (i) non-compliance
with the provisions of Order 5 Rules 12 (2), 25 (2) and 27 of
the Anambra State High Court (Civil Procedure) Rules,
1988 and (ii) the issue of the originating summons not
having been signed by a Legal Practitioner known to law
which were not raised and canvassed before the Court
below without the leave of this Court, grounds 5 and 6 of
the appeal and issues 5 and 6 distilled there from are
incompetent and should be struck out even if they are
issues relating to jurisdiction. He referred to ADEGOKE
MOTORS LTD V. ADESANYA (1989)3 NWLR (PT.109)
PAGE 250 AT 266(H), NIGER PROGRESS LTD V.
NORTH EAST LINE CORPORATION (1989) 3 NWLR
(PT.107) PAGE 68 AT 100, AJUWON V. ADEOTI (1990)
2
7
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6) LP
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510(
CA)
NWLR (PT.132) PAGE 271, TANAREWA (NIG) LTD. V.
ARZAI (2005) 5 NWLR (PT.919) PAGE 593 AT
624-625, ADAMS V. UMAR (2009) 5 NWLR (PT.1133)
PAGE 41 AT 116, E.A.IND.LTD. V. NERFUND (2009) 8
NWLR (PT.1144) PAGE 535 AT 566 (D-E).
In his reply brief filed on 20th February, 2012 and also
deemed as properly filed and served on 3rd February,
2016, the appellants submitted that where the issue being
raised for the first time in an appeal is an issue of
jurisdiction, the issue can be properly raised with or
without the leave of the Court. He referred to OBIAKOR
VS. THE STATE (2002) 10 NWLR (PT. 776) PAGE 612
AT 626 (F – H), 627 (C – D), NDIC VS. S.B.N. PLC
(2003) 1 NWLR (PT. 801) PAGE 311 AT 399 (B – H),
AYINKE STORES LTD VS.ADEBOGUN (2008) 10
NWLR (PT. 1096) PAGE 612 AT 626 (C – F),
LAWRENCE VS. A. G. OF THE FEDERATION (2008) 6
NWLR (PT. 1084) PAGE 453 AT 467 – 468 (F – B).
The law is settled that an appellant has no right to raise a
fresh issue not canvassed before the Court below in an
appeal unless the leave of the Court is sought and obtained.
See DANGACI OF DERE VS. DANGACI OF EBWA
(2006) 7 NWLR (PT. 979) PAGE 382. The
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CA)
exception to the general rule is where the fresh issue being
raised is an issue of jurisdiction. Where an issue of
jurisdiction is raised as a fresh point in an appeal, the
appellant need not obtain the leave of the Court. See
MOSES VS. STATE (2006) 11 NWLR (PT. 992) PAGE
458. In AGBATI VS. NIG. NAVY (2011) 4 NWLR (PT.
1236) PAGE 175 at 207-208 (G-B) the Supreme Court
stated thus:
“An appellant is allowed to raise the question of
jurisdiction on appeal without the leave of Court
whereas ordinarily a fresh issue can only be raised on
appeal with the leave of Court sought and obtained
hence the issue becomes incompetent and liable to be
struck out. I shall repeat with emphasis that an
appellant does not require leave to raise the issue of
jurisdiction, as it can be raised at any stage of the
proceedings and in any manner. The issue of
jurisdiction or competence when raised must be one
which must be capable of being disposed of without
the need to call additional evidence. The issue of
jurisdiction being radically fundamental to
adjudication in the Nigerian legal system must be
properly raised before the Court can rightly entertain
that point. Where
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CA)
the question involves a substantial point of law,
substantive or procedural and it is apparent that it
will not be necessary to open up further evidence
which would affect the decision, the Court has a duty
to allow the question to be raised and points taken so
as to prevent an obvious miscarriage of justice.”
The question here is whether grounds 5 and 6 of the appeal
are raising issues of jurisdiction. My answer is in the
positive. I shall shortly show why it is so.
The complaint in ground 5 of the appeal is predicated on
Order 5 Rules 12, 23, 25 (2) and 27 of the High Court (Civil
Procedure) Rules of Anambra State, 1988. It is settled by a
plethora of cases that the following conditions must exist
before a Court can exercise jurisdiction on a matter
brought before it for adjudication:
(a) The Court must be properly constituted as regards
the number and qualification of its members on the
bench and no member is disqualified for one reason
or another;
(b) The subject matter of the case is within its
jurisdiction and there is no feature in the case which
prevents the Court from exercising its jurisdiction;
and
(c) The case coming
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up before the Court was initiated by due process of
law, and upon fulfilment of any condition precedent
to the exercise of jurisdiction.”
A suit can be said to have come before the Court by a due
process of law only when it is initiated by an originating
process validly issued in accordance with the relevant laws
and rules of Court. A valid originating process is a
condition precedent to the assumption of jurisdiction by the
Court. In the case on appeal, the case was initiated by an
originating summons. By virtue of the provisions of Order 5
Rules 12(2) and 27 of Anambra State High Court (Civil
Procedure) Rules, 1988, issue of an originating summons
takes place upon its being signed by the Registrar in the
Court where the suit is being commenced. Without the
registrar’s signature and seal of the Court, there is no
issuance of the originating summons. Where the registrar
fails to sign and seal an originating summons, the Court’s
jurisdiction is not activated. Therefore failure to sign and
seal an originating summons is not an irregularity, it is a
condition precedent to the exercise of jurisdiction by the
Court. See NWABUEZE
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CA)
VS. OBI-OKOYE (1988) 3 NSCC PAGE 53, KIDA VS.
OGUNMOLA (2006) ALL FWLR (PT. 327) PAGE 402,
ONUN OTU ECHU IGIRIGA VS. ELDER EFFIONG
OKON BASSEY & ORS. (2013) LPELR – 20346 (CA).
The objection to Ground 6 of the appeal is also a complaint
about the validity of the originating summons. The
complaint in that ground of appeal is that the originating
summons was not signed by a Legal Practitioner known to
law. The law is settled that any Court process prepared by
a Legal Practitioner must be signed by that Legal
Practitioner and the name of the Legal Practitioner must be
clearly stated. The law is also settled that any Court
process signed in the name of a firm of Legal Practitioners
is incompetent.
If an originating process is found to be incompetent, it is a
fundamental issue which goes to the root of the case and
ultimate the jurisdiction of the Court. In law, a challenge to
the validity of an originating process is a challenge to the
jurisdiction of the Court and the exercise of its adjudicatory
power over a matter brought before it. Thus grounds 5 and
6 of the appeal are raising issues of jurisdiction. The
appellants do not need the leave of this
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CA)
Court to raise those issues. Based on the foregoing, the
1st–6th respondents’ preliminary objection to the additional
grounds of appeal fails and it is hereby overruled.
I will start the consideration of the substantive appeal by
considering issue 6 first as it is fundamental to the entire
case. The issue is whether the learned trial judge was not
right or justified in holding that this suit was properly
brought by way of originating summons.
On this issue the appellants’ counsel submitted that the
Court erred by hearing and determining the suit without
jurisdiction in that the originating summons was signed by
Messrs Kehinde Sofola & Co that is not a Legal Practitioner
known to law and cannot practice as such. He referred to
OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043)
PAGE 521 AT 531 (B – E), 534 (D – E) AND 533 (G –
H).
In response, the 1st – 6th respondents’ counsel submitted
that the case of OKAFOR VS. NWEKE (supra) is not
applicable in the instant case because there was the need
to call evidence in that case to establish the identity of the
person whose signature appeared on top of the
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6) LP
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CA)
firm’s name and the Supreme Court could not be moved to
start receiving evidence to establish the identity of the
person who signed on top of the firm’s name. Counsel
submitted that the name on top of Kehinde Sofola & Co is
“Kehinde sofola” and it is clearly readable. He enjoined the
Court to take judicial notice of all Legal Practitioners
authorized by law to appear before this Court. He stated
that Kehinde Sofola is a Legal Practitioner authorized by
law to appear before the Courts in Nigeria.
I have earlier stated the importance of an originating
process to the activation a Court’s jurisdiction. A
fundamental defect in the validity of an originating process
which affects its competence robs the Court of its
jurisdiction to adjudicate on any matter brought before it.
In the case on appeal, Order 5 Rule 27 of the High Court
(Civil Procedure) Rules of Anambra State, 1988 provides
that an originating process shall be prepared by a party or
his Legal Practitioner. Though it is not expressly stated but
it is implied that originating summons shall be signed by
whoever prepares it. The originating summons in the
instant
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CA)
appeal was prepared by the 1st – 6th respondent’s Legal
Practitioner. It is stated on the face of the summons that it
was taken out by Messrs Kehinde Sofola & Co., Legal
Practitioners. There is a signature on top of Messrs.
Kehinde Sofola & Co., Legal Practitioners. It is now firmly
established that a law firm is not a Legal Practitioner and a
firm cannot sign any Court process. Any process prepared
by a Legal Practitioner must be signed by the Legal
Practitioner as known to law. That is a Legal Practitioner
defined in Section 24 of the Legal Practitioner Act as “a
person entitled in accordance with the provisions of this
Act to practice as a barrister and solicitor, either generally
or for the purposes of any particular office or proceedings.”
Any Court process signed in the name of a law firm and
without stating the name of the particular Legal
Practitioner who signed it is invalid, incompetent and a
nullity. The originating summons having been signed in the
name of a law firm, Kehinde Sofola & Co. is a nullity. See
HAMZAT VS. SANNI (2015) 5 NWLR (PT. 1453) PAGE
486.
The 1st – 6th respondents’ counsel
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CA)
stated that the signature on top of Kehinde Sofola & Co. is
“Kehinde Sofola.” That statement in my view is tantamount
to giving evidence from the bar and in an address. The law
is settled that an address no matter how brilliant is not a
substitute for credible, cogent and admissible evidence
upon which any Court is entitle to act. I do not know how
counsel arrived at the conclusion that the signature is that
of “Kehinde Sofola” and that he is a Legal Practitioner. By
virtue of Section 2 (1) of the Legal Practitioners Act, a
person shall be entitled to practice as a barrister and
solicitor if, and only if, his name is on the roll. Whether or
not a person’s name is on the roll is a matter of fact which
can only be established cogent and credible evidence. It is
certainly not one of the matters listed under Section 122
(1) of the Evidence Act which any Court is entitle to take
judicial notice of. Section 122 (4) of the Evidence Act, 2011
provides that “if the Court is called upon by any person to
take judicial notice of any fact, it may refuse to do so unless
and until such person produces any such book or document
as it
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may consider necessary to enable it to do so. Section 94 (1)
provides that “evidence that a person exists having the
same name, address, business or occupation as the maker
of a document purports to have, is admissible to show that
such document was written or signed by that person.” The
effect of the provisions of Section 2 (1) and 24 of the Legal
Practitioners Act, Section 94 (1) and 122 (1) of the
Evidence Act, 2011 combined is that unless it is established
that the name ‘’Kehinde Sofola” is on the roll of persons
entitled to practice as a barrister and solicitor and that it is
the person whose name is on the roll, that signed the
originating summons, this Court will be engaging in
speculation by concluding that on the face of the summons,
it was signed by a Legal Practitioner known to law. In view
of the settled position of the law, I hereby hold that the
originating summons having been signed by a firm of Legal
Practitioners contrary to the provisions of Order 5 Rule 27
of the High Court (Civil Procedure) Rules of Anambra State,
1988, the originating process is incompetent and the suit
has not been initiated by due process of
17
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510(
CA)
law. The Court below had no jurisdiction to entertain the
suit. Issue 6 is resolved in favour of the appellants.
In line with the firmly established principle that it is the
duty of this Court as an intermediate appellate Court to
consider and pronounce on all issues properly raised before
it to give the final Court an idea of its reasoning and
position on those issues, I will proceed with the
consideration of other issues.
Issue 5 is whether the learned trial judge was right when
he held that the suit was properly brought in accordance
with the law, and if not, whether it has occassioned a
miscarriage of justice. On this issue, the appellants’ counsel
submitted that the provisions of Order 5 Rules 12 (2), 23
and 27 of the High Court (Civil Procedure) Rules of
Anambra State, 1988 was not complied with because the
originating summons was not signed or sealed by the
Registrar and did not contain the statement or questions on
which they seek the determination or direction of the
Court. He further submitted that the failure to seal the
originating summons renders it ineffective. He relied on
L.E.D.B. VS. ADEWALE (1065) LLR PAGE 246.
18
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6) LP
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CA)
In response, the 1st – 6th respondents’ counsel submitted
that if at all there was non-compliance with the above
provisions of the rules of Court, the appellants are deemed
to have acquiesced and waved their right to complain
having not raised it before the trial Court. He referred to
U.B.A.PLC.V. ADEMOLA (2009)8 NWLR (PT.1142)
PAGE 113 AT 30-31, ANSA V.NTUK (2009) 9 NWLR
(PT.1147) PAGE 557 AT 582, AJAYI V. A.G.OGUN
STATE (2009) 9 NWLR (PT.1141) PAGE 443 AT 477,
ADAMS V. UMAR (SUPRA). He further submitted that
the rules were complied with because the Assistant Chief
Registrar signed and affixed the seal of the Court on the
summons as shown on page 3 of the record of appeal.
The law is settled that the use of the word “shall” in a
statutory provision or rules of Court connotes a mandatory
compliance with the provisions of the statute or rules of
Court, it is not permissive. It gives no room for discretion
unless the context suggests otherwise. See NWANKWO
VS. YAR’ADUA (2010) 12 NWLR (PT. 1209) PAGE 518,
ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975)
PAGE 65.
ORDER 5 Rule 12 (2) of the rules of Court provides that
every originating
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CA)
summons shall be signed, sealed and filed in the registry
and when so sealed and filed shall be deemed to be issued.
Put the other way, an originating summons is deemed not
issued until it is sealed. Failure to seal an originating
summons renders it invalid and incompetent. See IGIRIGA
VS. BASSEY & ORS. (SUPRA). I have examined the
originating summons on pages 3 and 81 of the record of
appeal which are photocopies. It is signed and dated by the
registrar but I cannot find any seal of the Court. There is
nothing on the face of the summons to show that it was
sealed. The defect is not an irregularity or a technicality
which can be waived. It is fundamental to the suit and the
jurisdiction of the Court. Where an originating process is
incurably defective, there is no foundation upon which the
Court can exercise its adjudicatory power. A party cannot
by acquiescence or waiver confer jurisdiction on the Court
where the jurisdiction has not been properly activated by
an originating process validly issued in accordance with the
relevant statute and rules of Court. The originating
summons not having been sealed as stipulated by Order 5
Rule 12 (2) of the High
20
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6) LP
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510(
CA)
Court (Civil Procedure) Rules of Anambra State, 1988, the
jurisdiction of the Court below was not properly activated
and the Court below should not have adjudicated on the
matter.
There is also a complaint that the summons did not contain
any question upon which the 1st – 6th respondents sought
the determination or direction of the Court. The provisions
of the rule earlier reproduced in this judgment are clear
and unambiguous. It is clear that the rule made provision
for two alternatives. The plaintiff is required to state the
question on which he seeks determination or directive or a
concise statement of the relief or remedy claimed. The
Word “Or” when used in a statute is usually construed as
disjunctive and as separating two distinct situations and or
donating an alternative. Since the summons contained a
clear and concise statement of the reliefs or remedies
claimed at the Court below, there is a full compliance with
the provisions of Order 5 Rule 23 of the High Court (Civil
Procedure) Rules of Anambra State, 1988. Accordingly
issue 5 is partly resolved in favour of the appellant. The
learned trial judge rightly overruled the
21
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CA)
objection on that aspect of non compliance.
I will now return to issues 1 – 4. Issue 1 is whether the
learned trial judge was not right or justified in holding that
this suit was properly brought by way of originating
summons. On this issue, appellants counsel submitted that
the trial Court erred when he went ahead to determine the
suit under the originating summons procedure despite
serious and substantial issues of facts which were very
much in contention. He referred to OYEWUMI VS.
OSUNBADE (2001) FWLR (PT. 82) PAGE 1919 AT
1962, ADKINS SCIENTIFIC LTD. VS. ALADETOYINBO
(1995) 7 NWLR (PT. 409) PAGE 526.
In response, the 1st – 6th respondents’ counsel submitted
that by virtue of Order 5 Rule 3 (a) of the High Court (Civil
Procedure) Rules of Anambra State, 1988, a suit can be
commenced by an originating summons where the sole or
principal question is likely to be one of construction of a
written law or any deed, will, contract or other document.
He further submitted that all the parties to the suit
intended and indeed expected the trial Court to construe
the contents of their respective documents in determining
whether the 1st
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CA)
– 6th respondents were afforded fair hearing by the State
Boundary Committee and whether the Aghomili River as
decided by the Anambra State Government is the correct
boundary between the two communities. He referred to
DAGOGO VS. A.G. OF THE RIVERS STATE (2002)
FWLR (PT. 131) PAGE 1956, OSSAI VS WAWAH
(2006) 4 NWLR (PT. 969) PAGE 208, NWOSU VS. IMO
STATE ENVIRONMENTAL SANITATION AUTHORITY
(1990) 2 NWLR (PT. 135) PAGE 718 (D – F), EZEGBU
VS. F.A.T.B LTD (1992) 1 NWLR (PT. 220) PAGE 699
AT 720.
Order 5 Rule 3 (a) and (b) of the Court (Civil Procedure)
Rules of Anambra State which was in operation in 1988
when the originating summons was filed provides:
“Unless otherwise expressly provided by any written
law from time to time in force in the State, the
following suits shall be commenced by an originating
summons, that is to say, where-
(a) the sole or principal question at issue is or is
likely to be, one of the construction of a written law
or of any instrument made under any written law, or
of any deed, will, contract or other document;
(b) there is unlikely to be any substantial dispute of
fact.”
The
23
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CA)
situations in which the procedure of an originating
summons may be used have been fairly settled to warrant
any long arguments or controversy. It is firmly established
that the procedure should be used only where there is no
dispute as to facts or there is not likely to be any dispute or
hostility. It is not to be used for contentious or hostile
matters or where facts are likely to be in dispute. Among
the legion of authorities on this principle, See FAMFA OIL
LTD. VS. A.G FEDERATION (2003) 18 NWLR (PT. 852)
PAGE 453 AMASIKE VS. REG. GEN. VS C.A.C. (2010)
13 NWLR (PT . 1121) PAGE 337 , PAM VS .
MOHAMMED (2008) 16 NWLR (PT. 1112) 1. Can it be
said that the facts in the case on appeal are not in dispute
or that it is not a hostile action. My answer is a
resounding NO. While the issue of lack of fair can be
decided on the basis of the record of proceedings of the
Boundary Committee, the issue of whether the Committee
or the governor has power to overrule the decision of the
High Court cannot be decided on the face of the record or
the documents presented at the Court below. For instance,
both parties were alleged to have submitted different
versions of the judgment
24
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6) LP
ELR-41
510(
CA)
of the Provincial Court delivered in 1928, without evidence
from both parties to establish how they came about two
versions of a judgment, the Court cannot decide which of
the two versions is authentic. There is also the issue of
whether the subject matter and the parties in the previous
suits are the same as in the present suit. There is a serious
dispute on the facts and it is certainly a hostile action. The
learned trial judge was wrong when he held that the issues
are issues of interpretation of law or instrument which
requires no oral evidence. Issue 1 is resolved in favour of
the appellant.
Issue 2 is Whether, having regard to the documents and
evidence before the trial Court, the learned trial judge was
not right or justified in holding that the 1st to 6th
Respondents were not given a fair hearing before the State
Boundary Commi t tee made i t s f i nd ings and
recommendation. On this issue, the appellants’ counsel
submitted that the principle of fair hearing does not mean
or demand that a case must be fought until oral evidence is
given by the parties. He further submitted that since the
Boundary Committee considered all the documents
submitted to
25
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CA)
it by the parties and visited the locus where the two
contending parties gave oral evidence before the
Committee, the absence of oral hearing thereafter cannot
amount to a denial of fair hearing. He referred to
C.R.P.D.I.C. LTD VS. OBONGHA (2001) FWLR (PT. 54)
PAGE 353 AT 368, QUEEN VS. DIRECTOR OF AUDIT
(W.R) & ORS. (1961) ALL NLR 687 AT 690, ADIGUN
VS. A. G. OYO STATE (1987) 1 NWLR (PT. 53) PAGE
678, ADEDEJI VS. POLICE SERVICE COMMISSION
(1968) NMLR.
The appropriate starting point for the consideration of the
issue of fair hearing is the Constitution of the Federal
Republic of Nigeria, 1999 (as amended). It is the Grund
Norm and the source of the citizen’s right to fair hearing.
No law or procedure which is inconsistent with its
provisions can stand or override it. Section 36 (1) of the
Constitution provides that:
“in the determination of his civil rights and
obligations including any question or determination
by or against any government or authority, a person
shall be entitled to a fair hearing within a reasonable
time by a Court or other tribunal established by law
and constituted in such manner as to secure its
independence and
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CA)
impartiality."
It is certain that the provisions of Section 36 of the
Constitution applies not only to a Court or a tribunal
established by law but also to any panel or body set up to
determine the civil right or obligation of a citizen whether
administrative, judicial, quasi judicial or executive. See
JUBRIL VS. MIL. ADMIN. KWARA STATE (2007) 3
NWLR (PT. 1021) PAGE 357, BAKARE VS. L.S.C.S.C.
(1992) NWLR (PT. 262) PAGE 641. NJC VS. YARUMA
(2014) LPELR – 24208 (CA). Section 5 of the Anambra
State Boundary Committee (Establishment) Edict No. 15 of
1989, which established the Committee set out the
functions of the Committee as follows:
“The functions of the Committee shall be –
(a) to intervene in, deal with and determine any
boundary disputes that may arise between any two
Local Government Areas or communities or among
Local Government Areas or communities, in the State
with a view to settling such dispute.
(b) to advise the Military Governor on issues affecting
the boundary of any Local Government Area in the
State;
(c) to entertain and consider any recommendations
from the Technical Sub-Committee and to
27
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adv ise the Mi l i tary Government on such
recommendations; and
(d) to do such other things connected with boundary
matters as the Military Governor may, from time to
time, direct.”
It is not open to an argument that in the performance of its
duties and functions, the Committee irrespective of
whether it is an administrative or quasi-judicial body is
bound to act within the provisions of the Constitution and
observe the age long principle of fair hearing which is now
firmly entrenched in our Constitution.
Having stated the law regarding the functions of the
Committee and its mandatory duty to observe the principle
of fair hearing, the next thing is to find out whether the
Committee observed that principle. In KOTOYE VS. C. B.
N. (1989) 1 NWLR (PT. 98) PAGE 419 AT 444, The
Supreme Court stated the attributes of fair hearing as
follows:
“Clearly whenever the need arises for the
determination of the civil rights and obligations of
every Nigerian, this provision guarantees to such a
person a fair hearing within a reasonable time. Fair
hearing has been interpreted by the Courts to be
synonymous with fair trial and as implying that every
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reasonable and fair minded observer who watches the
proceedings should be able to come to the conclusion
that the Court or other tribunal has been fair to all
the parties concerned. See on this Mohammed v.
Kano N. A (1968) 1 All N.L.R. 424, at p. 426. There
are certain basic criteria and attributes of fair
hearing, some of which are relevant in this case.
These include:
(i) that the Court shall hear both sides not only in the
case but also in all material issues in the case before
reaching a decision which may be prejudicial to any
party in the case. See Sheldon v. Broomfield Justices
(1964) 1 Q. B. 578.
(ii) that the Court or tribunal shall give equal
treatment, opportunity and consideration to all
concerned. See Adigun v. Attorney-General, Oyo State
& Ors. (1987) 1 NWLR (Pt. 53) 678.
(iii) that the proceedings shall be held in public and
all concerned shall have access to and be informed of
such a place of public hearing and
(iv) that having to all the circumstances in every
material decision in the case, justice must not only be
done but must manifestly and undoubtedly be seen to
have been done: R. V. Sussex Justices, Exparte
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McCarthy (1924) 1 K. B. 256, AT P. 256; Deduwa &
Ors. v Okorodudu (1976) 10 S.C 329.
Thus, fair hearing in the context of Section 33 (1) of
the Constitution of 1979 encompasses the plenitude
of natural justice in the narrow technical sense of the
twin pillars of justice – audi alteram partem and nemo
judex in causa sua – as well as in the broad sense of
what is not only right and fair to all concerned but
also seems to be so.”
See also GARBA & ORS VS. THE UNIV. OF MADUGRI
(1986) 1 NWLR (PT. 18) PAGE 550 AT 617. In order to
comply with the requirement of fair hearing all the parties
to a dispute must be heard at every material stage of the
proceeding and on every material aspect of the dispute
before the Court or the body adjudicating on or settling the
dispute hands down a decision. While it is the law that fair
hearing does not mean that it is mandatory for the panel to
take oral evidence from a party especially where a party
has presented documentary evidence in support of his case,
it is also the law that the panel or the body investigating a
matter or adjudicating on a dispute such as the Boundary
Committee herein
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must not receive evidence or representation behind the
back of any of the parties. See OLATUNBOSUN VS.
N I S E R ( 1 9 8 8 ) N W L R ( P T . 8 0 ) P A G E 2 5 ,
AGBAHOMOVO VS. EDUYEGBE (1999) 3 NWLR (PT.
594) PAGE 170.
In the case on appeal, it is clear from the affidavits of both
parties particularly Paragraphs 11, 12, 13 and 18 of the
appellants’ counter affidavit and Paragraphs 10- 17 and
31-34 of the 1st – 6th respondents affidavit on pages
219-225 of the record of appeal that the dispute was
transferred by the chairman, Orumba South Local
Government to the State Boundary Committee. From the
time of the transfer up till the time the Committee rendered
its report, I cannot find anything on record to show that the
parties were invited to either submit their memorandum or
present their case orally. It is also clear that the Committee
on its own went outside whatever documents were
submitted by both parties which they allegedly deliberated
upon to procure evidence in respect of the dispute and they
did so without reference to the parties. For instance, the
appellants stated in Paragraph 13 of their counter affidavit
that the Committee took into consideration
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the report of an independent investigation carried out by
the State Police Command on the matter. There is nothing
on record to show that the report was served on any of the
parties particularly the 1st – 6th respondents to enable
them react either orally or in writing.
Apart from the above, both parties confirmed the fact that
the Committee visited the locus in quo. However, there is a
disagreement on whether the Committee that visited the
locus in quo was properly constituted and whether parties
were heard on the report of the visit. There is nothing on
record to show that any of the parties were given a written
report or observations of the Committee in respect of their
visit or to show that both parties were represented during
the visit. The appellants relied on Exhibit MJFC6 which is a
newspaper publication. The State Boundary Committee is a
body set up by law. Therefore the only authentic evidence
of its proceedings is its own record of proceedings which
ex-facie must show that in the performance of its functions
and duties, it fully complied with the constitutional
requirement of fair hearing. In the absence of such record,
it is not open
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to the Court to speculate that the requirement of fair
hearing was fully complied with. The record of the
proceedings of the Boundary Committee was not before the
Court below. The only inference the Court below was bound
to draw was that the tribunal did not comply with the
requirement of fair hearing. The Court below was on a very
firm ground when he held as follows:
“None of the exhibits relied upon by the defendants
proved that the plaintiffs took part in whatever
deliberations or meetings held by the Boundary
Committee on the dispute between the parties. There
is nothing to show that the committee called for
memorandum from the parties. Rather the letter
Exhibit AN7 written on November 7, 1997 shows the
Exhibit 8F written by the 1st – 6th Defendants on 2nd
September 1996 is no defence that the plaintiffs were
heard even though it referred to the visit of the
Committee to the area in dispute on 12th October,
1995 nearly one year before. As at November 7, 1997
the committee still had the intention to invite the
parties to a meeting to discuss their problems. But
instead of holding the meeting on the specified date,
a decision was handed
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down to the Plaintiffs. Finally from all the documents
in support and against which I have analyzed above, I
hold that the Plaintiffs were not given a fair hearing
before the State Boundary Committee reached its
decision that the Aghomili River be the permanent
boundary between the two communities.”
The finding of the Court cannot be faulted. Accordingly,
issue 2 is resolved against the appellants.
Issue 3 is whether, having regard to the findings and
recommendation of the State Boundary Committee and the
Anambra State Government decision contained in Exhibit
AN8, the learned trial judge was not right or justified in
holding that the provisions of Section 1 (2) (b)(i) of the
Military Government (Supremacy and Enforcement of
Powers) Act did not include decisions in the body of the law
and thus did not oust the jurisdiction of the trial Court to
entertain this suit.
On this issue, the appellants’ counsel submitted that the
action of the Anambra State Government in placing or
fixing the boundary between Umuomaku and Aghomili
River pursuant to Section 5 (b) of the Anambra State
Boundary Committee(Establishment) Edict,1989 falls
within
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the provisions of Section (2)(b)(i) of the Military
Government (Supremacy and Enforcement of Powers) Act
as "any act, matter or thing done or purported to be done
under or pursuant to any Act or Law." That being the case,
it cannot be litigated or inquired into by way of any civil
proceedings. The Act in question simply ousts the
jurisdiction of the Court from looking into any act, matter
or thing done or purported to be done under or pursuant to
any Act or law. He referred to OSADEBAY VS. A.G.
(BENDEL STATE) (1991) 1 NWLR (PT. 169) PAGE
522. Counsel further submitted that the Court has a legal
duty to give full effect to the law by making an order to
abate the proceedings.
In response, the 1st – 6th respondents’ counsel submitted
that from the express wordings of Section 1 (2) (b) (i) of the
Act, what it purports to prohibit is a civil suit brought for or
on account of or in respect of any act, matter or thing done
or purported to be done under any Edict or Decree, the Act
is not concerned with judicial decisions or quasi-judicial
decisions.
The law is settled that in the interpretation of a statute
where the
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wordings used in the statute are clear and unambiguous,
the words must be given their literal and ordinary meaning.
The entire provisions of the statute must be read together
to get the real intention of the law maker. It is also the law
that the Court must confine itself to the provision of the
statute; the Court must not add, delete or subtract any part
of the law.
Section 1 (1) & (2) of the Federal Military Government
(Supremacy and Enforcement of Powers) Decree 1994
provides as follows:
(1)“the preamble hereto is affirmed and declared as
forming part of this Decree.
(2) it is hereby declared also that :
(a) for the efficacy and stability of the Government of
the Federal Republic of Nigeria; and
(b) with a view to assuring the effective maintenance
of the territorial integrity of Nigeria and the peace,
Order and good government of the Federal Republic
of Nigeria:-
(i) no civil proceedings shall lie or be instituted in any
Court for or on account of or in respect of any act,
matter or thing done or purported to be done under
or pursuant to any Decree or Edict and if such
proceedings are instituted before, on or after
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the commencement of this Decree the proceedings
shall abate, the (sic) discharged and made void;
(ii) the question whether any provision of chapter IV
of the Constitution of the Federal Republic of Nigeria
1979 has been, is being or would be contravened by
anything done or purported to be done in pursuance
of any Decree shall not be inquired into any Court of
law and accordingly, no provision of the Constitution
shall apply in respect of any such question.”
It is clear from the above that the decree was made for the
purpose expressly stated therein which is to oust the
jurisdiction of the Court on any suit filed to challenge the
Decree or Edict made for the stability of the Government of
the Federal Republic of Nigeria and effective maintenance
of the territorial integrity of Nigeria, peace, order and good
government of Nigeria. There is nothing in the claim of the
1st – 6th respondents relating to any act or matter or
anything done under any Decree or Edict made for the
efficacy or stability of the Government of Nigeria or
affecting maintenance of the territorial integrity of Nigeria,
peace, order and good governance. The 1st – 6th
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respondents’ claim is simply about ownership of land. The
Decree does not apply or extend to an intervention and a
dec i s i on o f t he Government t o approve the
recommendation of a Committee set up to determine any
boundary dispute between Local Governments or
Communities with a view to settling the dispute. See
ABACHA VS FAWEHINMI (2000) 6 NWLR (PT. 660
Page 228.
On the interpretation of a statute ousting the jurisdiction of
a Court, the Supreme Court stated thus in MILITARY
GOV., ONDO VS. ADEWUMI (1988) 3 NWLR (PT. 82)
PAGE 280 AT 295:
“As a general principle, even where there is a statute
purporting to oust the jurisdiction of a Court, the
language of any such statute will be jealously watched
by the Court: See: Re Vexatious Actions Act 1969, R E
Boaler (1915) 1 K.B.21,AT P.36;Pyx Granite Co.Ltd. v.
Ministry of Housing & Local Government (1960)
A.C.260, H.L.; Barclays Bank of Nigeria Ltd. V.
Central Bank of Nigeria (1976) 6 SC.175, at p.170.
H.,L., it was held that where a provision purporting to
oust the jurisdiction of the Court is reasonably
capable of having two meanings, that meaning shall
be preferred which is capable of preserving the
ordinary
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jurisdiction of the Court."
The learned trial judge was right when he held that the
jurisdiction of the Court is not ousted by the said
legislation. Issue 3 is resolved against the appellant.
Issue 4 is whether the trial Court discharged his duty to
consider and pronounce on all the issues submitted to him
for adjudication by the parties and if not, whether the Court
of Appeal can look into it? It is apparent on the face of the
record of appeal that the Court below did not consider the
second issue identified for determination. The learned trial
judge categorically stated that the “success of issue 1
makes a consideration of issue 11 unnecessary.” Issue 11
which was not considered by the learned trial judge is as
follows:
“Whether the State Boundary Committee and the
Anambra State Government have any right to set
aside the decisions of the Supreme Court of Nigeria
(now High Court) in Suit No. O/19/48 and WACA in
Appeal No. 3880.”
Though it is the duty of the trial Court to consider and
pronounce upon all the issues raised by parties, it can only
decide the issues properly raised before it. In the
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instant case, it is my view that the issue of whether the
Committee has a right to overrule the decision of the
Supreme Court was not properly raised before the Court in
that all the materials necessary for the just and proper
determination of that issue was not before the Court.
Though the decision of the Court below not to consider the
issue was based on a different reason, it is trite that an
appellate Court will not set aside a correct decision of a
trial Court because it is based on wrong reasons. An
appellate Court is concerned with the correctness of a
decision and not the reasons for the decision. See
ILUBUYA V. DIKIBO (2010) 18 NWLR (PT.1225)
PAGE 627.
The appellants’ counsel urged the Court to exercise its
powers under Section 15 of the Court of Appeal Act and
determine the issue not considered by the Court below.
Section 15 of the Court of Appeal Act provides as follows:
“The Court of Appeal may, from time to time, make
any order necessary for determining the real question
in controversy in the appeal, and may amend any
defect or error in the record of appeal, and may direct
the Court below to inquire into and certify its findings
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on any question which the Court of Appeal thinks fit
to determine before final judgment in the appeal, and
may make an interim, order or grant any injunction
which the Court direct any necessary inquiries or
accounts to be made or taken, and, generally shall
have full jurisdiction over the whole proceedings as if
the proceedings had been instituted in the Court of
Appeal as Court of first instance and may re-hear the
case in whole or in part or may remit it to the Court
below for the purpose of such re-hearing or may give
such other directions as to the manner in which the
Court below shall deal with the case in accordance
with the powers of that Court’s appellate jurisdiction,
order the case to be re-heard by a Court of competent
jurisdiction.”
In EZEIGWE V. NWAOWULU & ORS. (2010) 4 NWLR
(PT.1183)PAGE 159 AT 203-204(G-B), the Supreme
Court stated the conditions must be present before the
Court of Appeal can exercise its power as stated above as
follows:
“For the provision to apply, the following conditions
must exist, to wit:
(a) that the lower Court or trial Court must have the
legal power to adjudicate in the matter before
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the appellate Court can entertain it;
(b) that the real issue raised by the claim of the
appellant at the lower Court or trial Court must be
seen to be capable of being distilled from the grounds
of appeal;
(c) that all necessary materials must be available to
the Court for consideration;
(d) that the need for expeditious disposal of the case
or suit to meet the ends of justice must be apparent
on the face of the materials presented: and
(e) that the injustice or hardship that will follow if the
case is remitted to the Court below must be clearly
manifest.”
All the above conditions must co-exist before the Court can
exercise its power. In the instant appeal, the jurisdiction of
the Court below has not been properly activated. The need
for an expeditious disposal or determination of a case is of
no moment where the action was not brought before the
Court by due process of law. Where all the necessary
materials are not before the Court, as in this case, the
Court is handicapped from exercising that power. For the
foregoing reasons, issue 4 is resolved against the appellant.
For the foregoing reasons, this appeal has merit and
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it is hereby allowed. The suit at the Court below was not
properly instituted by due process of law. It is therefore
incompetent and it is hereby struck out. Parties are to bear
their own costs.
TOM SHAIBU YAKUBU, J.C.A.: The law has been well
settled upon the authority of Okafor & 2 Ors v. Nweke &
Ors (2007) 10 NWLR (pt. 1043) 521; (2007) 3 SCNJ
185; (2007) All FWLR (pt. 368) 1016, to the effect that
Court processes must be signed by a Legal Practitioner
who has been enrolled to practice law in Nigeria, by virtue
of Section 2(1) of the Legal Practitioners' Act, 1990.
Further see Mrs. Olayinke Adewunmi & Ors v. Mr.
Amos Oketade (2010) 3 SCNJ (pt. II) 368; SLB.
Consortium v. Nigeria National Petroleum
Corporation (2011) 4 SCNJ 211 at 221-223; Nigerian
Army v. Samuel (2013) 7 SCNJ (pt. 1)161.
Therefore, in the circumstances of the present appeal,
where the originating process at the trial High Court was
signed by an unknown person, for the law firm of Kehinde
Sofola & Co., such a process of Court, is unarguably,
incompetent and liable to be struck out.
��I have no difficulty in agreeing with the opinion of my
Lord,
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MISITURA OMODERE BOLAJI-YUSUFF JCA; in the lead
judgment that the suit at the Court below was not initiated
by due process of law. The same is incompetent and liable
to be struck out. I, also strike it out, accordingly.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of
the judgment delivered by my learned brother, MISITURA
OMODERE BOLAJI-YUSUFF JCA. I agree with reasoning,
conclusions and orders therein.
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