Alhaji Umar Abba-tukur V Government Of Gongola State (1988) LLJR-SC
Alhaji Umar Abba-tukur V Government Of Gongola State (1988)
LawGlobal-Hub Lead Judgment Report
A. OPUTA, J.S.C.
On the 20th day of October, 1987 when this appeal came up for hearing, learned counsel for the Appellant, G. Brown Peterside, S.A.N. started and stated thus:
“The main appeal is still pending. The present appeal arose from the Ruling of the Court of Appeal Jos Division delivered on the 2nd day of April 1987 on a preliminary objection that the main appeal was incompetent.”
An appeal against a Ruling delivered on a preliminary objection seems to be rather an “unwarranted” luxury. Since the preliminary objection will not finally determine the real questions in controversy in this case such points arising there from could have safely awaited the eventual outcome of the case and then be urged on appeal against the final decision.
Secondly the issue in dispute in this case is whether or not Alhaji Umaru Abba Tukur is or is not still the Emir of Muri. This is an issue of great public interest – to the State Government, to the people of Muri who would want to know who their Emir is, and to Alhaji Tukur himself who would want to know whether he is still a ruler or a subject.
I agree that these preliminary skirmishes may be of profound interest to lawyers and may even enhance the growth of the law but one has to balance such interest against the responsibility to treat certain cases (like the present case) with speedy dispatch.
The background facts as reflected in both Briefs of learned counsel on either side are not in dispute. On the 12th day of August 1986 Colonel Yohana Madaki, the then Governor of Gongola State, issued an Order removing Alhaji Umaru Abba Tukur as Emir of Muri. On 19th August, 1986 the said Alhaji Tukur filed Suit FHC/K/Mg/86 in the Federal High Court Kano seeking an Order of Court to quash the said Deposition Order of 12/8/86. He (Alhaji Tukur) claimed other reliefs including inter alia:
(i) A Declaration that he is still the Emir of Muri in Jalingo Local Government area of Gongola State.
(ii) A Declaration that his detention by the Governor of Gongola State is illegal.
On the 16th day of October, 1986, Alhaji Umaru Tukur again filed an application at the Federal High Court Kano for an Order restraining the Government of Gongola State from appointing a new Emir of Muri pending the determination of the substantive suit FHC/K/Mg/86. There was also a prayer for an Order to release the said Alhaji Tukur from detention.
In a Ruling delivered on 24th October 1986 the Kano Federal High Court per Belgore, J. (as he then was) ordered the immediate release of Alhaji Tukur from detention and also ordered that no new Emir of Muri should be appointed by the Gongola State Government pending the determination of the substantive Suit FHC/K/Mg/86. In another Ruling dated the same 24th October 1986, Belgore, J. (as he then was) held that the Court has jurisdiction to entertain the substantive action.
The Gongola State Government dissatisfied and aggrieved by the above two Rulings of 24/10/86 filed at the Registry of the Federal High Court Kano on 5/11/86 a Notice of Appeal against them (decision and Orders of the Federal High Court Kano). On the 17th November 1986 the self-same Gongola State Government filed yet another Notice of Appeal against the decision and orders of the Federal High Court Kano dated 24/10/86. This second Notice of Appeal (Notice of 17/11/86) was filed at the Federal High Court Lagos while the earlier Notice of 5/11/86 was, as I observed above filed at the Federal High Court Kano.
The appeal of the Gongola State Government, based on the Notices filed in Kano and in Lagos, was ultimately transferred to the Court of Appeal, Jos Division for hearing and determination. Briefs were ordered, filed, and exchanged. Thereafter the appeal was set down for hearing on the 4th day of March, 1987. On the 25/2/87 G. Brown-Peterside, S.A.N., learned counsel for Alhaji Umaru Tukur, Respondent in the Appeal pending before the Jos Division of the Court of Appeal, filed a Notice of preliminary Objection under Order 3 Rule 15 of the Court of Appeal Rules 1981 as amended. The objections were as follows:
“1. That one of the Notices of Appeal herein is incompetent, and
- That the appeal herein is also incompetent.”
The grounds of the said preliminary objection were stated as follows:
“1. With respect to the two Notices of Appeal filed, that Order 3 Rule. 2(1) of the Rules of this Honourable Court 1981 as amended does not permit of filing of two notices thereof, and
- That the Brief supporting the notices and grounds of appeal is signed by a private legal practitioner Dapo Abudu, Esqr., who has not been duly authorised by the Attorney-General of Gongola State in that behalf or by someone on behalf of the said Attorney-General as required by Section 105 (2) of the High Court Law Cap 49 Vol. 11, Laws of Northern Nigeria, applicable to Gongola State thus rendering the appeal incompetent” (the italics is mine and it is to emphasise the issue in contention).”
The issues raised by the preliminary objection are:
(i) Whether it is permissible for an appellant to file in one appeal, two Notices of Appeal.
(ii) Whether a private legal practitioner can sign a Brief in an appeal filed by a State Government, Put in a more eloquent and legal language Can a private legal practitioner appear for, represent a State Government, and conduct proceedings, including appeal proceedings, on behalf of a State Government
To put the proceedings before the Court of Appeal in their chronological and proper sequence and perspective, it is necessary to observe that on the 4th March 1987 when the Gongola State Government’s appeal came up for hearing before the Court of Appeal Jos Division, the Appellant in that Court – the Gongola State Government – filed a Notice of withdrawal of Appeal under Order 3 Rule 18(1) of the Court of Appeal Rules 1981 as amended. That Notice of Withdrawal speaks for itself. It reads:
“Take Notice that the Appellant herein intends and do hereby wholly withdraws their Notice of Appeal dated 4th day of November 1986…” (the underlining is mine).
Res ipsa loquitur. It is very clear and obvious from the above that what was withdrawn was not the entire appeal Two Notices were filed-the first on 5/11/86 and the second on 17/11/86. No appeal can stand if there is no Notice of Appeal to animate and sustain it. If the Appellant in the Court below – the Gongola State Government – filed only one Notice of Appeal then the withdrawal of that one, solitary, Notice will be the end of the Appeal. But what happens where, as in this case, an Appellant filed two separate Notices and then withdraws one, leaving the other intact and alive. That was what the Court of Appeal Jos Division was asked to decide in this case, That was the central issue in controversy, for if no appeal was pending before it, the other issue of a private legal practitioner signing a Brief for and on behalf of a State Government will not even arise.
After hearing arguments on the Preliminary Objection on 4th March 1987, the Court below reserved its Ruling. On the 2nd April 1987 in a considered and unanimous decision all three Justices – Akanbi, Agbaje and Macaulay, JJ.C.A. of the Court of Appeal Jos Division over-ruled the Preliminary Objection of Mr. G. Brown-Peterside, S.A.N., learned counsel for Alhaji Umaru Tukur. Alhaji Umaru Tukur, (from now on referred to simply as the Appellant), has appealed against the above decision of the Court of Appeal over-ruling his Preliminary Objection to this Court.
Two original grounds were filed and in Appellant’s Brief there was an indication that:
“At the hearing of this appeal, the Appellant will seek leave of this Honourable Court to file and argue an additional ground of appeal.”
This additional ground dealt with misdirection in law and the use the Court below made of Section 149 of the Evidence Law dealing with the presumption of regularity. It was argued in the Brief of the Appellant that “there can be no presumption of regularity as Section 53 of the Interpretation Act must be given its implied natural meaning, viz authority to prosecute as envisaged must be in writing”. The two Briefs, one filed on behalf of the Appellant, and the other on behalf of the Gongola State Government, are both agreed on the Two Issues For Determination in this appeal namely:
(1) Whether an Appellant in a civil appeal before the Court of Appeal can file two Notices of Appeal, validly withdraw one and then proceed with the other under the Rules of the Court of Appeal 1981 as amended.
(2) Whether a private legal practitioner can appear for a State Government in a civil proceeding including appeals. If the answer is yes does such private legal practitioner need to produce a written authority of the Attorney-General of the State, in this case, an authority in terms of Section 105(2) of the High Court Law Cap 59 of Northern Nigeria 1963 applicable to Gongola State
In addition to their Briefs, learned counsel on both sides emphasised by oral submissions and elaboration the main props of their arguments. Let me now consider the Issues or Questions For Determination one by one; one after the other.
Can an Appellant file two Notices of Appeal in one appeal When learned Senior Advocate of Nigeria for the Appellant was making heavy weather of this issue, the Court reminded him that there are at least, two recent decisions of the Supreme Court on that same point namely:
(1) Akeredolu & Ors. V. Akinremi and Ors. (1986) 2 N.W.L.R. 710, and
(2) Harriman v. Harriman (1987) 3 N.W.L.R. 244.
In Akeredolu’s case supra one of the issues considered was:
“Where an Appellant is appealing on both law and on facts, or mixed law and fact will he be required to file two Notices of Appeal or will it be sufficient if he files one Notice of Appeal and later applies for leave to cover the ground other than law alone”
It has to be borne in mind that a right of appeal is a constitutional right Eyesan v. Sanusi (1984) 1 S.C.N.L.R. 353 at p. 367. Section 220(1) of the1979 Constitution as amended creates a constitutional right of appeal without leave from anybody. Under Section 220(1) an aggrieved party appeals as of right from decisions of the High Court to the Court of Appeal. There is another qualified right of appeal created by S. 221(1) of the 1979 Constitution. This is a right of Appeal with leave. To utilize and exercise any right of appeal an appellant is obliged and obligated by the Rules to file a Notice of Appeal. Where therefore the Constitution gave one and the same Appellant in one and the same case two rights of appeal one as of right, without leave, and the other qualified by and limited to the grant of leave – there and then it is logical to conclude that for each right of appeal being exercised one Notice of Appeal is required so that for the exercise of the two constitutional rights two Notices of Appeal will technically be required.
The answer to the ‘question – Can an Appellant file two Notices of appeal – with emphasis on the word “can” is obviously yes he can. In Iteshi Onwe v. The State (1975) 9-11 S.C.41 three Notices of Appeal were filed all within time and the Court per Sowemimo, J.S.C. (as he then was) held that “it was open to counsel for the Appellant to choose which of them he intends to adopt.” This view expressed at p. 42 in a dissenting judgment has by implication been affirmed by Akeredolu supra and Harriman supra. Should he file two Notices The two cases Akeredolu supra and Harriman supra both say He need not “for it will look a bit awkward”, “it will be somewhat too technical”. Can an appellant then be blamed for erring on the side of caution I hope not for abundantia cautela non nocet.
There is however a grave misconception disclosed in learned counsel for the Appellant’s oral argument of the First Issue For Determination. He concentrated unduly on mere filing two Notices. He did not emphasise the fact that before the Court of Appeal heard his objection on 4/3/87 the first Notice filed on 5/11/86 was withdrawn leaving only one Notice, that filed on 17/11/86. The issue then became whether or not that Notice of 17/11/86 was competent enough to animate and sustain the Gongola State Government’s appeal to the Court below We cannot seriously talk of, and dwell on two Notices of Appeal when one has in fact been withdrawn. No argument was advanced by learned counsel for the present Appellant, Alhaji Umaru Tukur, challenging the competence of the Notice of Appeal filed on 17/11/86. If that remaining Notice of Appeal (filed on 17/1/87) is competent (and there is nothing to make this Court hold otherwise) then the appeal, that that Notice of Appeal initiated is also competent; then also the answer to the question posed by the First Issue For Determination is a positive, unhesitating yes. An appellant can validly withdraw one of two Notices of Appeal and then proceed to argue his appeal based on the other remaining Notice of Appeal. Ground 1 of the Grounds of Appeal to this Court thus fails.
I will take the Second Issue For Determination in bits:
(1) Can a private legal practitioner appear for a State Government
That is the basic question. If he can appear then, in my view, he who asserts that a private legal practitioner was, in any particular case, not duly authorised by the Attorney-General of a State to appear for the State will have the onus of proving his assertion. In such a case he will be faced with the awkward and uphill task of proving a negative.
(i) In Director of Public Prosecutions v. Akozor (1962) 1 All N.L.R. 235 at p. 237 a Constitutional Reference was made to the Federal Supreme Court under Section 108 of the 1960 Constitution:
(1) Whether under Section 97 of the Constitution the Director of Public Prosecutions has power to instruct a private legal practitioner to appear in a criminal case on his behalf, and
(2) Whether, if the Director of Public Prosecutions has such power and has instructed a private practitioner, he or a member of his staff can appear with the legal practitioner so instructed. The Answers of the Federal Supreme Court at p. 241 were:
“Answer to Question(1): The Director of Public Prosecutions has power, having regard to Section 97 of the Constitution to instruct a private legal practitioner to appear in a criminal case on his behalf.
Answer to Question (2): The Director of Public Prosecutions or a member of his staff can appear with a legal practitioner so instructed.”
(ii) Also in Nafiu Rabiu v. Kano State (1980) 8-11 SC.130 a private legal practitioner, Kehinde Sofola, S.A.N., appeared with Miss O. Sofola and Miss O. Ogundipe for the Respondent – Kano State. And in The State v. Salihu Mohammed Gwonto & 4 Ors. (1983) 3 S.C.62 another private legal practitioner, G.O.K. Ajayi, S.A.N., appeared (with Messrs A.K. Dabi, Dolu Segun, S.O. Shonibare and Miss Ayo Ogunsola all private legal practitioners) for the Plateau State. I think it is too late in the day now to argue that a private legal practitioner cannot appear for the State in criminal matters. If in criminal matters where “the public interest, interest of justice and the need to prevent abuse of legal process” (see Section 191 (3) of the 1979 Constitution) are crucial matters for consideration, if there, private legal practitioners can represent the State without first proving that they were duly authorised, I wonder why that should be insisted upon in civil cases like the one now on appeal.
Issue No.2 in Appellant’s Brief was:
“Can a private legal Practitioner not duly authorised by the Attorney General in that behalf … appear for the Government of a State in any civil proceedings in terms of Section 105(2) of the High Court Law Cap 59 of Northern Nigeria 1963 applicable to Gongola State”
Apart from the fact that the above issue as formulated took it for granted (which should be) that the private legal practitioner was not duly authorised, there is the other fact that this case was commenced not in any judicial Division of the High Court of Northern Nigeria to which the High Court Law Cap 49 of 1963 applies but in the Federal High Court established as Federal Revenue Court by Act No. 13 of 1973 and restyled the Federal High Court by Section 230 (2) of the 1979 Constitution.
The question that arises now is the Federal High Court which was neither established nor constituted by the High Court Law of Northern Nigeria bound by the provisions of that Law including its Section 105 dealing with Representation of the State and Government Departments in the State High Court I do not think that one can apply the provisions of the High Court Law of Northern Nigeria to any other Court except of course to the High Court of Northern Nigeria.
Neither the Federal High Court that was first seized of this case and which decided the substantive issues now on appeal, nor the Court of Appeal Jos Division that heard and over-ruled the Appellant’s Preliminary Objections will be said to be bound by the High Court Law of Northern Nigeria. Representation of Parties before these two Courts will not therefore be governed by the provisions of the High Court Law of Northern Nigeria Cap 49 of 1963.
Mr. G. Brown-Peterside, S.A.N., further submitted that failure of the legal practitioner representing the Gongola State Government to show that he was duly authorised by the Attorney-General of Gongola State as required by Section 105 of the High Court Law of Northern Nigeria robbed the Court of jurisdiction From the argument put forward it was obvious that the learned Senior Advocate was relying on Madukolu & Ors. v. Nkemdilim (1962) 1 All.N.L.R. 587. The Court was thus forced to ask whether representation of parties has anything to do with jurisdiction. The answer of learned counsel for the Appellant was yes. I am afraid I cannot share that view. In Madukolu’s case supra Bairaman, FJ. at p. 595 made the following observations on jurisdiction and the competence of a Court:
“Put briefly, a Court is competent when
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) 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
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
It is not appearance of counsel “duly authorised in that behalf” nor the want of such authority that confers on or removes jurisdiction from a Court. Appearance of counsel may have something to do with adjudication but nothing whatsoever with the competence of the Court to adjudicate and therefore with the jurisdiction of the Court. In any event learned Senior Advocate of Nigeria never submitted that all the proceedings before the trial Court and all the Orders that Court made in favour of his client were all null and void. That would be the inevitable result if there was any defect in competence in this case.
Since it is the Appellant who is asserting “that Dapo Abudu, Esqr., Legal practitioner, who signed the Brief supporting the Notice of Appeal in this matter, as well as Chief Gani Fawehinmi who purportedly appeared for the Respondent (then Appellant), cannot do so unless duly authorised in writing by the Attorney-General of Gongola State …” the onus is on him to prove that these two private legal practitioners had no such “due authority”.
Even if one agrees, for the sake of argument, that Section 105(2) of Cap 49 of 1963 applies (which in fact is not the case) one has to point out that that section did not stipulate that such authorisation should be “in writing”. I will decline to read into any enactment words which are not to be found there and which will alter its operative effect West Derby Union v. Metropolitan Life Assurance Society (1897) A.C. 647 per Lord Hershall at p. 655.
In his Brief, learned counsel for the Appellant tried to argue that since by Section 53 of the Interpretation Act “whenever a fiat or consent of the President or Governor or of any public officer is necessary any document purporting to bear the fiat or consent … shall be received as prima facie evidence.” it follows that the authorisation required by Section 105(2) of the High Court Law of Northern Nigeria should also be in writing. I will regard this argument of the Appellant as an example of the old and apparently ineradicable fallacy of importing into an enactment, which is, expressed in clear and unambiguous language something, which is not contained in it by argument and analogy from other sections of other enactments. Surely “a fiat” and “a consent” are not on the same plane as the expression “duly authorised” used in Section 105(2).
Also the Courts usually and normally take counsel’s word for it when counsel announces that he is appearing for a client. The Courts do not require counsel to tender written evidence to prove that he had been so briefed. It will be a sad day for the legal Profession in Nigeria when counsel can no longer be believed that he is appearing for a client and it does not matter if that client is a State Government. This is as it should be. In Halsbury’s Laws of England, 4th Edition, Vol.3, para. 1179 subnomen Authority as Counsel appears the following relevant statement:
“When counsel appears in Court and states that he is instructed the Court will not inquire into his authority to appear” – Allen v. Francis 3 K.B.1065.
It is not in dispute that Chief Gani Fawehinmi led E.D. Audu, Director of Civil Litigation, Ministry of Justice, Yola, Gongola State. Two of them could not have appeared together on one side – the side of the Gongola state Government – if Chief Fawehinmi had not been authorised to conduct this case for the Gongola State Government. I am in complete agreement with the Court below that the very fact of Chief Gani Fawehinmi appearing with the Director of Civil Litigation of the Ministry of Justice, Gongola State is sufficient proof that Chief Gani Fawehinmi, a private legal practitioner, was duly authorised to appear and conduct this case for the Gongola State Government. I agree with the submission in Respondent’s Brief that:
“the Appellant has no locus standi to challenge the authority of Chief Gani Fawehinmi’s Chambers to represent Gongola State Government. It is the State Government or Attorney-General that is competent to complain that the Private Legal Practitioner has no mandate of the Attorney General of the State to represent the State.”
The Appellant’s case surely does not depend for its success on who represents his opponent but on the available evidence and the applicable law.
In the final result and for all the reasons given above this appeal is wholly and completely unmeritorious and it ought to be dismissed. It is a matter for regret that these preliminary skirmishes should be allowed to delay the determination of the real issues in dispute in the substantive appeal which are matters of manifest, public interest. The people of Muri want to know who their Emir is and so is the Gongola State Government. The Appellant himself should not be interested in scoring mere debating points but in knowing whether he is still the Emir of Muri. Let all concerned face these important issues with objectivity squarely and promptly.
The appeal is dismissed with costs to the Respondent assessed at N300.00.
SC.87/1987