Alhaji Abba Asheikh V. Alhaji Kaka Mallam Yale (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE BODE RHODES-VIVOUR, J.C.A (Delivering the Leading Judgment)

This is an appeal from the judgment of a Borno State High Court delivered on the 31st day of May, 2002, striking out the case for want of jurisdiction.

The appellant’s plaintiff’s claim against the defendant/respondent was for:

(1) A declaration that the letter written by the defendant to the Chairman Local Government Service Commission Borno State and copied to the Secretary to the Borno State Government Ref. No. KLG/ADM/S/T.1/1/1 dated 29th January, 1996 is libelous of the plaintiff.

(2) The sum of Five Million Naira (N5m) damages for libel published by the defendant concerning the plaintiff.

(3) Costs of the suit.

Trial commenced on the 7th day of October, 1998. The plaintiff called six witnesses while the defendant called four witnesses. Five documents were admitted as exhibits. On the 13th of December, 2001 counsel commenced closing speeches. This came to an end on the 9th of April, 2002 after an adjournment. Judgment was fixed for the 23rd of May, 2002, but on that day rather than deliver judgment the learned trial Judge raised the issue of jurisdiction suo motu; and proceeded to invite counsel to address the court on Regulation 55 of the Borno State Revised Local Government Staff Regulations 1986, which according to the, learned trial Judge touches on the competence of the court to hear and decide, the case. After addresses by counsel, the learned trial Judge delivered a judgment on the 31st day of May, 2002 striking out the case for want of jurisdiction because the plaintiff failed to fulfill the condition precedent required by Regulation 55 of the Borno State Revised Local Government Staff Regulations of 1986. This appeal is against that judgment.

In accordance with order 17 Rules 2 and 4 of the Court of Appeal Rules 2007 the appellant’s brief was filed on the 18th of February, 2003, while the respondent’s brief was deemed properly filed and served on the 8th of May, 2006.

In the appellant’s brief three issues were formulated for determination of this appeal. They are:

1. Whether a pre-action requirement can be raised by the trail Judge suo-motu at the close of evidence and address even though the defendant did not raise non compliance by his statement of defence and/or give evidence in respect thereof.
2. Whether Regulation 55 of the Borno State Revised Local, Government Staff Regulations 1986 was made by a competent authority, having the requisite power to make the same.
3. Whether Regulation 55 of the Borno State Revised Local Government Staff Regulations is constitutional.

On the other side of the fence the respondent’s counsel formlated five issues for determination.

1. Whether the court was correct in raising suo motu the issue of jurisdiction after address.
2. Whether the issue of jurisdiction must be pleaded before objection taken to it.
3. Whether a court can proceed with a matter without complying with the condition precedent.
4. Whether Regulation 55 of the Borno State Revised Local Government Staff Regulations is constitutional.
5. Whether the Borno State Revised Local Government Staff Regulations was made by a competent authority.

As can be observed respondent’s issues 1, 2 and 3 correspond with the appellant’s issue 1. So also the respondent’s issues 4 and 5 with the appellant’s issues 3 and 4 though differently expressed. I have taken a close look at the issues formulated by both sides and I consider the 4th issue to be fundamental, and crucial in deciding this appeal. If it succeeds addressing the other issues would amount to an academic exercise, and courts do not waste precious judicial time on worthless pursuits. Courts are to determine live issues. See Oyeneye v. Odugbesan 1972 4 SC P. 244; Bakare v. A.C.B. LTD. 1986 3 NWLR Pt. 26. P. 47; Nzom v. Jinadu 1987 1 NWLR Pt. 51 P. 537; Okulaga v. Awosanya 2002 2 NWLR Pt. 645 P. 530.

It is important to state the facts in brief now. In January, 1996 the appellant; was a civil servant; and an employee of the Borno State Local Government Service Commission. The respondent was the caretaker chairman of the Local Government Council of Konduga Local Government of Borno State. On the 10th of January, 1996 the appellant was transferred from Kwaya-Kusar Local Government Council to Konduga Local Government Council as Acting Director of Personnel Management. The appellant claims that after he resumed duty at Konduga Local Governmerit Council the respondent wrote to the Chairman Local Government Service Commission rejecting the posting (of the appellant) and that on the 29th of January, 1996 the respondent falsely and maliciously published of and concerning him libelious material.

At the hearing of the appeal on the 17th of February, 2010 learned counsel for the appellant Mr. S. Dauda adopted his brief filed on the 18th of February, 2003, withdrew the alternative to prayer No. 2 and urged us to enter judgment for the appellant.

Mr. A.A. Airadion, learned counsel for the respondent adopted the respondent’s brief deemed duly field and served-on 8th of May, 2006 and urged us to dismiss the appeal.